The Copyright and Related Rights Regulations 2003

The Copyright and Related Rights Regulations 2003 is one of the final steps in the regulatory régime implemented which is geared to address the legal issues raised by use of information technology in business, and deals with copyright: an intellectual property right.

The Regulations derive from the EU Information Society Directive and came into force on 31 October 2003.

The purpose of the Regulations is to address certain deficiencies brought about by the ease of transfer of information and to create a neater fit and clarity for legal protection of copyright assets in the commercial environment. In other words, it brings legal protection up-to-date with the digital environment.

The Regulations create:

• a right of communication of a copyright work - this is in addition to the usual bundle of exclusive rights granted for copyright works and is specifically aimed at protecting interactive services such as the Internet. Although this addition does not change the law, the provision renders copyright protection technology neutral. Copyright protection no longer relies on artificially fitting infringing activity into one of the exclusive rights set out in the Copyright, Designs & Patents Act 1988 UK.

• a right to incidentally and transiently copy works in the course of utilising another service - once again, this clarifies the position in relation to the incidental copies made in the course of browsing the Internet and users no longer need to rely on an implied licence to copy the work.

These two amendments do not so much change the law but add clarity and certainty to the position in relation to the copyright works it applies to.

Other impacts on copyright law include:

• The law has significantly altered in relation to copies made for certain purposes. For example, using a copyright work for commercial research purposes is now an infringement of the copyright holder’s rights, even where the source is acknowledged. Prior to copying a substantial part of a work for any commercial purpose, the intended user must now be licensed.

• Prior to the Regulations, public broadcasts of radio or television programmes were not caught by copyright. Now businesses are required to take out a licence with Phonographic Performance Limited, in addition to the pre-existing license required by the Performing Rights Society - there are exemptions for charities and not-for-profit organisations.

• The Regulations also add to the armoury against software pirates. Circumventing copy protection systems, or digital rights management software is now an infringement of copyright and relief is also made available against service providers who are aware that their services are being used to infringe copyright. This opens Internet service providers to liability when they are put on notice that their customers use their services to infringe copyright material.

These anti-circumvention measures extend to other digital rights management systems, including copyright notices, licence terms and digital watermarks used to uniquely identify works.

What to Do

The Regulations complete a well-rounded copyright régime where not only core copyright works are protected but go further and protects digital rights management (DRM) systems. Obviously the new rights are there for copyright owners to better protect their capital assets and stock-in-trade. Active policing is important to avoid giving the impression that you have waived your rights and allow others to use your works. More often than not, in law delay is detrimental to claims for losses sustained by infringement.

Businesses who use copyright materials in the course of their business should ensure that they are licensed by the appropriate licensing authority since the rights of copyright owners have expanded and the threat to businesses that ignore that is significant. There is no innocence defence to copyright infringement.