Copyright, Designs And Patents Act 1988
   HOME

TheInfoList



OR:

The Copyright, Designs and Patents Act 1988 (c. 48), also known as the CDPA, is an Act of the
Parliament of the United Kingdom The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body of the United Kingdom, and may also legislate for the Crown Dependencies and the British Overseas Territories. It meets at the Palace ...
that received
royal assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in othe ...
on 15 November 1988. It reformulates almost completely the statutory basis of
copyright law A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, e ...
(including performing rights) in the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
, which had, until then, been governed by the Copyright Act 1956 (c. 74). It also creates an unregistered design right, and contains a number of modifications to the law of the United Kingdom on Registered Designs and
patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an sufficiency of disclosure, enabling discl ...
s. Essentially, the 1988 Act and amendment establishes that copyright in most works lasts until 70 years after the death of the creator if known, otherwise 70 years after the work was created or published (50 years for computer-generated works). In order for a creation to be protected by copyright it must fall within one of the following categories of work: literary work, dramatic work, musical work, artistic work, films, sound recordings, broadcasts, and typographical arrangement of published editions.


The Act

Part 1 of the Act "restates and amends" (s. 172) the statutory basis for United Kingdom copyright law, although the Copyright Acts of 1911 (c. 46) and 1956 (c. 74) continue to have some effect in limited circumstances under ss. 170 & 171 and Schedule 1. It brings United Kingdom law into line with the Berne Convention for the Protection of Literary and Artistic Works, which the UK signed more than one hundred years previously, and allowed the ratification of the Paris Act of 1971.


Territorial application

Part I of the Act (copyright provisions) extends to the whole of the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
(s. 157); amendments by
Order in Council An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom, this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council ('' ...
extended the Act to
Bermuda Bermuda is a British Overseas Territories, British Overseas Territory in the Atlantic Ocean, North Atlantic Ocean. The closest land outside the territory is in the American state of North Carolina, about to the west-northwest. Bermuda is an ...
and
Gibraltar Gibraltar ( , ) is a British Overseas Territories, British Overseas Territory and British overseas cities, city located at the southern tip of the Iberian Peninsula, on the Bay of Gibraltar, near the exit of the Mediterranean Sea into the A ...
. Works originating (by publication or nationality/domicile of the author) in the
Isle of Man The Isle of Man ( , also ), or Mann ( ), is a self-governing British Crown Dependency in the Irish Sea, between Great Britain and Ireland. As head of state, Charles III holds the title Lord of Mann and is represented by a Lieutenant Govern ...
or the following former
dependent territories A dependent territory, dependent area, or dependency (sometimes referred as an external territory) is a territory that does not possess full political independence or sovereignty as a sovereign state and remains politically outside the control ...
qualify for copyright under the Act:
Antigua Antigua ( ; ), also known as Waladli or Wadadli by the local population, is an island in the Lesser Antilles. It is one of the Leeward Islands in the Caribbean region and the most populous island of the country of Antigua and Barbuda. Antigua ...
,
Dominica Dominica, officially the Commonwealth of Dominica, is an island country in the Caribbean. It is part of the Windward Islands chain in the Lesser Antilles archipelago in the Caribbean Sea. The capital, Roseau, is located on the western side of t ...
,
Gambia The Gambia, officially the Republic of The Gambia, is a country in West Africa. Geographically, The Gambia is the List of African countries by area, smallest country in continental Africa; it is surrounded by Senegal on all sides except for ...
,
Grenada Grenada is an island country of the West Indies in the eastern Caribbean Sea. The southernmost of the Windward Islands, Grenada is directly south of Saint Vincent and the Grenadines and about north of Trinidad and Tobago, Trinidad and the So ...
,
Guyana Guyana, officially the Co-operative Republic of Guyana, is a country on the northern coast of South America, part of the historic British West Indies. entry "Guyana" Georgetown, Guyana, Georgetown is the capital of Guyana and is also the co ...
,
Jamaica Jamaica is an island country in the Caribbean Sea and the West Indies. At , it is the third-largest island—after Cuba and Hispaniola—of the Greater Antilles and the Caribbean. Jamaica lies about south of Cuba, west of Hispaniola (the is ...
,
Kiribati Kiribati, officially the Republic of Kiribati, is an island country in the Micronesia subregion of Oceania in the central Pacific Ocean. Its permanent population is over 119,000 as of the 2020 census, and more than half live on Tarawa. The st ...
,
Lesotho Lesotho, formally the Kingdom of Lesotho and formerly known as Basutoland, is a landlocked country in Southern Africa. Entirely surrounded by South Africa, it is the largest of only three sovereign enclave and exclave, enclaves in the world, t ...
, St. Christopher-Nevis,
St. Lucia Saint Lucia is an island country of the West Indies in the eastern Caribbean. Part of the Windward Islands of the Lesser Antilles, it is located north/northeast of the island of Saint Vincent (Saint Vincent and the Grenadines), Saint Vincent ...
, Swaziland and
Tuvalu Tuvalu ( ) is an island country in the Polynesian subregion of Oceania in the Pacific Ocean, about midway between Hawaii and Australia. It lies east-northeast of the Santa Cruz Islands (which belong to the Solomon Islands), northeast of Van ...
. All other countries of origin whose works qualified for United Kingdom copyright under the UK Copyright Act 1911, also known as the Imperial Copyright Act of 1911, or the 1956 Acts continue to qualify under this Act (para. 4(3) of Schedule 1).


Works subject to copyright

The Act simplifies the different categories of work which are protected by copyright, eliminating the specific treatment of engravings and photographs. *literary, dramatic and musical works (s. 3): these must be recorded in writing or otherwise to be granted copyright, and copyright subsists from the date at which recording takes place. Literary work includes computer programs, compilations and databases. *artistic works (s. 4): includes buildings, photographs, engravings and works of artistic craftsmanship. *sound recordings and films (s. 5) *broadcasts (s. 6): a broadcast is a transmission by wireless telegraphy which is intended for, and capable of reception by, members of the public. *published editions (s. 8) means the published edition of the whole or part of one or more literary, dramatic or musical works. The following works are exempted from copyright by the transitional provisions of Schedule 1: *artistic works made before 1 June 1957 which constituted a design which could be registered under the Registered Designs Act 1949 c. 88 (or repealed measures) and which was used as a model for reproduction by an industrial process (para. 6); *films made before 1 June 1957: these are treated as dramatic works (if they so qualify under the 1911 Act) and/or as photographs (para. 7); *broadcasts made before 1 June 1957 and cable programmes transmitted before 1 January 1985 (para; 9). Finally, section 3(2) states that copyright does not subsist in a literary, dramatic or musical work until it is recorded in writing or otherwise. This act of recording a work in any form is called "fixation." An example includes taking a photograph or writing down a poem. This fixes the work retrospectively from the moment the work was created. The Act as it received royal assent does not substantially change the qualification requirements of the author or the country of origin of the work, which are restated as ss. 153–156: these have since been largely modified, in particular by the Duration of Copyright and Related Rights Regulations 1995 No. 3297.


Rights in performances

Part II of the Act creates a series of performers' rights in application of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961. These rights are retrospective in respect of performances before commencement on 1 August 1989 (s. 180). These rights have been largely extended by the transposition of European Union directives and by the application of the WIPO Performances and Phonograms Treaty: the section below describes only the rights which were created by the Copyright, Designs and Patents Act 1988 itself. A performer has the exclusive right to authorise the recording and/or broadcast of his performances (s. 182). The use or broadcast of recordings without the performer's consent (s. 183) and the import or distribution of illicit recordings (s. 184) are also infringements of the performer's rights. A person having an exclusive recording contract over one or more performances of an artist holds equivalent rights to the performer himself (ss. 185–188). Schedule 2 lists the permitted acts (limitations) in relation to these rights. Rights in performances last for fifty years from the end of the year in which the performance was given (s. 191). They may not be assigned or transferred, and pass to the performer's executors on death (s. 192). An infringement of rights in performances is actionable under the
tort A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...
of breach of statutory duty. Orders are available for the delivery up (
Scots law Scots law () is the List of country legal systems, legal system of Scotland. It is a hybrid or mixed legal system containing Civil law (legal system), civil law and common law elements, that traces its roots to a number of different histori ...
: delivery) and disposal of infringing copies (ss. 195, 204): holders in rights in performances may also seize such copies (s. 196). The making, dealing in or use of infringing copies is a criminal offense (s. 198), as is the false representation of authority to give consent (s. 201).


Duration of copyright

The provisions on duration have been largely modified by the Duration of Copyright and Related Rights Regulations 1995 No. 3297. The provisions of the 1988 Act (ss. 12–15) as it received Royal Assent are given below. All periods of copyright run until the end of the calendar year in which they would otherwise expire. The duration of copyright under the 1988 Act does not depend on the initial owner of the copyright, nor on the country of origin of the work. The following durations do not apply to Crown copyright, Parliamentary copyright or the copyright of international organisations.


Transitional provisions

These provisions apply to works existing on 1 August 1989, other than those covered by Crown copyright or Parliamentary copyright (paras. 12 & 13 of Schedule 1). The duration of copyright in the following types of work continued to be governed by the 1956 Act: *engravings published posthumously; *published photographs and photographs taken before 1 June 1957; *published sound recordings and sound recordings made before 1 June 1957; *published films and registered films; *anonymous and pseudonymous literary, dramatic, musical or artistic works (other than photographs) where these have been published and unless the identity of the author becomes known. — however these transitional provisions were largely cancelled by the 1995 Regulations, which in many cases caused lapsed UK copyrights to be revived. Copyright in the following types of work lasts until 31 December 2039: *unpublished literary, dramatic and musical works of which the author has died (unpublished in the sense of the proviso to s. 2(3) of the 1956 Act); *unpublished engravings of which the author has died; *unpublished photographs taken on or after 1 June 1957; *unpublished sound recordings made on or after 1 June 1957, unless they are released during the period of copyright; *films which were neither published nor registered, unless they are released during the period of copyright; *works of universities and colleges which were protected by perpetual copyright under the Copyright Act 1775 c. 53.


Mass-produced artistic works

Artistic works that are mass-produced by an industrial process suffer from a downgrading of their copyright term from the life of the creator plus 70 to 25 years as a result of the provisions of section 52 of the Copyright, Designs and Patents Act 1988. The Enterprise and Regulatory Reform Act 2013 was introduced into Parliament on 23 May 2012 and received
royal assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in othe ...
the next year in April. If section 56(2) of the Bill is enacted then artistic works that are mass-produced by the copyright holder will benefit from the same period of protection as those not replicated in large numbers. The result will be a significant extension from 25 years to that of the life of the creator plus 70 years. The proposed change is a reaction to pressure from the international furniture industry supported by manufacturers of decorative arts: copyright holders of many famous and much copied 20th century furniture design classics such as the Egg Chair and Barcelona Daybed hope that long expired copyright periods will be revived allowing for a further period of commercial exploitation. Some legal commentators have doubted whether the legislation will have the desired effect. They contend that many mass-produced items of 20th-century industrial furniture may not be defined by the courts of the United Kingdom as works of artistic craftsmanship but as mere designs. A design that is not an artistic work attracts no copyright protection under the 1988 Act.


Peter Pan

Section 301 and Schedule 6 contain an unusual grant of the right to royalties in perpetuity, proposed by Jim Callaghan, enabling Great Ormond Street Hospital for Children to continue to receive royalties for performances and adaptations, publications and broadcast of " Peter Pan" whose author, J. M. Barrie, had given his copyright to the hospital in 1929, later confirmed in his will. Although often incorrectly referred to as a perpetual copyright, it does not confer Great Ormond Street Hospital full
intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...
rights over the work. The amendment was proposed when Peter Pan's copyright first expired on 31 December 1987, 50 years after Barrie's death, which was the
copyright term The copyright term is the length of time copyright subsists in a work before it passes into the public domain. In most of the world, this length of time is the life of the author plus either 50 or 70 years https://w.wiki/ETPJ. Length of copyright ...
at that time. Following EU legislation extending the term to author's life + 70 years, Peter Pan's copyright was revived in 1996 and expired on 31 December 2007 in the UK, where Great Ormond Street Hospital's right to remuneration in perpetuity now prevails.


Fair dealing defences and permitted acts

Chapter III of Part I of the Act provides for a number of situations where copying or use of a work will not be deemed to infringe the copyright, in effect limitations on the rights of copyright holders. The existing
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
defences to copyright infringement, notably fair dealing and the public interest defence, are not affected (s. 171), although many of the statutory permitted acts would also qualify under one of the common law defences: the defence of statutory authority is specifically maintained in section 50. This chapter of the Act has been substantially modified, notably by the Copyright and Related Rights Regulations 2003 No. 2498 transposing the EU Information Society Directive: the description below is of the Act as it received royal assent.


Fair dealing defences

The following are also permitted acts (the list is not exhaustive): * Fair dealing with a work for the purposes of private study or research (s. 29); *Fair dealing with a work with acknowledgement for the purposes of quotation, criticism or review or, unless the work is a photograph, for the purposes of news reporting (s. 30); *Fair dealing with a work for the purposes of caricature, parody or pastiche (s. 30A); *Incidental inclusion of copyright material in another work (s. 31); *Public reading or recital by a single person with acknowledgement (s. 59); *Copying and distribution of copies of the abstracts of scientific and technical articles (s. 60); *Recordings of folk songs for archives (s. 61); *Photographs, graphic works, films or broadcasts of buildings and sculptures in a public place (s. 62) (see Freedom of panorama); *Copying and distribution of copies of an artistic work for the purpose of advertising its sale (s. 63); *Reconstruction of a building (s. 65) *Rental of sound recordings, films and computer programs under a scheme which provides for reasonable royalty to the copyright holder (s. 66); *Playing of sound recordings for the purposes of a non-commercial club or society (s. 67); (S. 67 was omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010). The impact is that charities and not-for-profit organisations that do not fall within the voluntary exemptions offered by PPL now require a licence from the joint licensing system operated by PPL and PRS for Music; *Recording for the purposes of time-shifting (s. 70); *Free public showing of broadcasts (s. 72); *Provision of subtitled copies of broadcasts for the handicapped by designated bodies (s. 74); *Recording of broadcasts for archival purposes (s. 75).


Educational use

In general, limited copying for educational use (including examination) is permitted so long as it is ' fair dealing' and is performed by the person giving or receiving instruction (s. 32) or by the education establishment in the case of a broadcast (s. 35): however, reprographic copying of published editions is only permitted within the limit of 5% of the work per year (s. 36). Works may be performed in educational establishments without infringing copyright, provided that no members of the public are present (s. 34): the parents of pupils are considered members of the public unless they have some other connection with the establishment there are different things too.(e.g., by being teachers or governors). Further provisions are contained in secondary legislation.


Libraries and archives

Librarians may make and supply single copies of an article or of a reasonable proportion of a literary, artistic or musical work to individuals who request them for the purposes of private study or research (ss. 38–40); copying of the entire work is possible if it is unpublished and the author has not prohibited copying (s.–43). They may also make and supply copies to other libraries (s. 41) and make copies of works in their possession where it is not reasonably possible to purchase further copies (s. 42). The detailed conditions for making copies are contained in secondary legislation, currently the Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989 No. 1212.


Public administration

Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purposes of a
Royal Commission A royal commission is a major ad-hoc formal public inquiry into a defined issue in some monarchies. They have been held in the United Kingdom, Australia, Canada, New Zealand, Norway, Malaysia, Mauritius and Saudi Arabia. In republics an equi ...
or statutory inquiry (ss. 45, 46). The Crown may make copies of works which are submitted to it for official purposes (s. 48). Material which is open to public inspection or on an official register may be copied under certain conditions: this includes material made open to public inspection by the
European Patent Office The European Patent Office (EPO) is one of the two organs of the European Patent Organisation (EPOrg), the other being the Administrative Council. The EPO acts as executive body for the organisation
and by the
World Intellectual Property Organization The World Intellectual Property Organization (WIPO; (OMPI)) is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishing the World Intellectual Property Organization, WIPO was created to pr ...
under the Patent Cooperation Treaty, and material held as public records under the Public Records Act 1958 c. 51 or similar legislation (s. 49).


Relevant cases

* Test of joint ownership - Problems can occur when there is a need to determine whether a person involved in the creation of a piece of work may have joint ownership. When this is the case, there is a test that can be applied, similar to the one which is used to determine originality. This test is used in order to show that the labour, skill and judgement exercised by the author are unique and are that of which are protected by copyright. ** ''Levy v Rutley'' 871'' - In this case it was stated that there can be no finding of joint authorship in a copyright work in the absence of a common intention to that effect. It is implicit in the concept of 'collaboration' that there must be "joint labouring in the furtherance of a common design". This means that it is necessary for both authors to make a significant contribution and that they must have had a similar plan. The levy judgement was subsequently approved by the case of Beckingham v Hodgens 2003. ** ''Stuart v Barret'' 994'' - The court described the test for joint authorship in a work of music: "What the claimant to joint authorship of a work must establish is that he has made a significant and original contribution to the creation of the work and that he has done so pursuant to a common design." It is not necessary that his contribution to the work is equal in terms of either quantity, quality, or originality to that of his collaborators. Nor, in the case of a song, does it matter that his contribution is to the orchestral arrangement of the song rather than to the song itself." ** ''Godfrey v Lees'' 995'' - The claimant was a classically trained pianist invited by a pop group to reside with them and act as orchestral arranger of a number of their songs. He never became a member of the group. The issue here was whether the claimant was the joint owner of copyright in six musical works for which he had made orchestral arrangements or contributed to their composition. It was held that the claimant had established that he had made a significant and original contribution to the creation of the work and must be regarded as a joint author. But as he had waited 14 years before asserting his rights, he was stopped from revoking the implied license granted to the pop group for the exploitation of the works. **''Cala Homes Ltd v Alfred Mcalpine Homes East Ltd'' 995- The case concerned the relevance of the joint authorship test in employment relationships. Mr Justice Laddie delivers the judgement in which he says '"to have regard merely to who pushed the pen is too narrow a view of authorship." Therefore, it is wrong to think that the only person who carries out the mechanical act of fixation is the author. **''Julia Kogan v Nicholas Martin and others'' 019- This is the leading case which sets out the test of joint authorship. The case reviewed s. 10(1) which defines a "work of joint authorship." Section 10(1) states that a work of joint authorship is a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author/author'

From this the court outlined four elements of joint authorship: collaboration, authorship, contribution, and non-distinctiveness of contribution. * Test of originality ** ''University of London Press v University Tutorial Press'' 916'' - This case explains the concept of originality. Here, examiners were hired to create exam scripts for the
University of London The University of London (UoL; abbreviated as Lond or more rarely Londin in Post-nominal letters, post-nominals) is a collegiate university, federal Public university, public research university located in London, England, United Kingdom. The ...
. The question arose as to whether certain mathematics exam papers were original literary works. The exam papers just consisted of conventional maths problems in a conventional manner. The court held that originality does not mean that the work must be an expression of individual thought. The simple fact that the authors drew on a body of knowledge common to mathematicians did not compromise originality. The requirement of originality, it was held, does not require that expression be in an original or novel form. It does, however, require that the work not be copied from another work. It must originate from the author. As such, even though these were the same old maths problems every student is familiar with, and even though there was no creative input, the skill, labor, and judgement of the authors was sufficient to make the papers original literary works. Essentially, the criteria are satisfied if the work is not a copy of a preceding work and it is originated from the author, who must have exercised the requisite labor, skill or judgement in producing the work. **'' Interlego AG v Tyco Industries Inc'' 989"the Lego brick case" - This case established that not every minor alteration on an object amounts to a new copyright existence. There has to be some additional element of material alteration sufficient to make the work original. In other words, to say that a new copyright protection existed in what was essentially the same work would result in protection being extended indefinitely through a continuation of minor changes. **'' Infopaq International A/S v Danske Dagblades Forening'' 009- This case determined that extracting 11 words of text from an alternative source amounted to unlawful copying. The Court of Justice of the European Union decided that copying a short sentence/phrase from a literal work might be regarded as substantial copying if those words were the result of the intellectual creation of the author. The case received subsequent approval from The NLA and others v Meltwater Holding BV and others 011 **''Football Dataco Ltd v Yahoo! UK Ltd and others'' 012- This case established that football fixture lists are not protected by copyright if the compilation is not the authors own intellectual creation even if the compilation required significant labor, judgement and skill t 42 The Dataco case emphasizes the need for creative choices and decisions to be made in addition to the labor and skill that is required to produce the work in question. * The Primary Infringement Test for Economic rights ** '' Designers Guild v Russell Williams'' 000- Designers Guild determined that copyright infringement occurs when a defendant has taken a substantial part of an original work. The courts in making a determination of substantial pay regard to its quality, not whether the two works look alike or the same. An important distinction which means reference must be made to a work's quality rather than quantity. * Performing rights ** ''Gramophone Company v Stephen Cawardine'' 934'' - The coffee shop, Stephen Carwardine & Co, had been keeping its customers entertained by playing records. EMI, then called The Gramophone Company and argued that it was against the law to play the record in public without first receiving the permission of the copyright owners. The judge agreed, establishing this as a legal principle. EMI and Decca formed Phonographic Performance Ltd (PPL) to carry out this licensing role and opened the first office in London. The Copyright Act 1956 led to the expansion of PPL's role to also cover the licensing of broadcasters that played recorded music. Further copyright law changes in 1988 strengthened PPL's licensing position. In 1996, performers were given the rights to receive 'equitable remuneration' where recordings of their performances were played in public or broadcast – leading to PPL paying them royalties directly for the first time. In addition, it was stated by Maugham J that, "the arrangement of the recording instruments in the building where the record is to be made, the building itself, the timing to fit the record, the production of the artistic effects, and, perhaps above all, the persons who play the instruments, not forgetting the conductor, combine together to make an artistic record, which is very far from the mere production of a piece of music". * Test of first ownership of copyright in sound recordings **
A&M Records A&M Records is an American record label owned by Universal Music Group and functions as a branch of Interscope Geffen A&M Records, Interscope-Geffen-A&M. Established in 1962 by Herb Alpert and Jerry Moss, the label initially operated independent ...
v Video Collection International 995'' - Torvill and Dean wanted to create music to dance to. Their service company, Inside Edge ("IE"), was given the task of doing this. IE engaged a Mr. Pullen who in turn engaged an arranger and a conductor (R). It was common ground that R did the following – commissioned and paid for the musical arrangements, booked and paid for the studio, arranged and paid for the attendance of the 51 musicians necessary to make the recording, engaged and paid for the scoring, a sound engineer, and a fixer and paid for all expenses of the sessions such as meals, taxis, etc. The issue in this case: who was the "author" of the sound recording under s. 9(2) CDPA? By whom were the arrangements necessary for the making of the recording undertaken? Alternatively, was IE the owner in equity under the principles of Massine v De Basil? And if the plaintiffs were not the owners of the copyright, was R stopped from asserting his ownership? In the case, it was held that IE undertook the arrangements through Mr. Pullen. R made the recordings, but Mr. Pullen undertook the arrangements. It was also an implied term in the contract between R and Mr. Pullen that IE would own the copyright. However, had IE not been the copyright owner, R would not have been stopped because he was not aware of his rights. *Moral Rights **Turner Entertainment co. v Huston, CA 992- This case concerned the colorization of a black and white American film directed by John Huston. After John's death the film was colorized by Turner Entertainment. The heirs of Huston and others sought to prevent the broadcast of the colorized version on French national TV, and were successful. The colorization of the film breached the heirs moral right of integrity under French law. The case would also be actionable under UK law via s. 77–83.


Moral rights

The Act creates a specific regime of
moral rights Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. The moral rights include the right of attribution, the right to have a work p ...
for the first time in the United Kingdom: previously, an author's moral right had to be enforced through other
tort A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...
s, e.g.
defamation Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions ...
,
passing off Passing off is a common law tort which can be used to enforce unregistered trade mark rights. The tort of passing off protects the Goodwill (accounting), goodwill of a trader from misrepresentation. The law of passing off prevents one trader f ...
,
malicious falsehood Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions ...
. The author's moral rights are: *the right to be identified as the author or the director, right which has to be "asserted" at the time of publication (ss. 77–79); *the right to object to derogatory treatment of work (ss. 80–83); *the right to object to false attribution of work (s. 84); *the right to privacy of certain photographs and films (s. 85). The moral rights of an author cannot be transferred to another person (s. 94) and pass to their heirs on his death (s. 95): however, they may be waived by consent (s. 87). The right to object to false attribution of a work lasts for twenty years after the author's death. The other moral rights last for the same period as the other copyright rights in the work (s. 86). There are some narrow exceptions to moral rights. For example, s. 79 states that the right to be named as author does not apply in relation to computer programs, design of a typeface, or any other computer generated work. Additionally, the right to object to any derogatory treatment, does not apply to computer programs, works made for the reporting of current events, newspaper publications, or collective works of reference (s. 81). Once someone has successfully claimed their moral rights to be infringed, they are entitled to a remedy. As moral rights are non-economic in nature, damages would be for non-economic loss. For example, this might include a remedy imposed by the court that requires the defendant to issue a disclaimer dissociating the author from any derogatory treatment of the work in question.


Crown and parliamentary copyrights

The act simplifies the regime of Crown copyright, that is the copyright in works of the United Kingdom government, and abolishes the perpetual Crown copyright in unpublished works of the Crown. It also creates the separate concept of parliamentary copyright for the works of the
Parliament of the United Kingdom The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body of the United Kingdom, and may also legislate for the Crown Dependencies and the British Overseas Territories. It meets at the Palace ...
and the
Scottish Parliament The Scottish Parliament ( ; ) is the Devolution in the United Kingdom, devolved, unicameral legislature of Scotland. It is located in the Holyrood, Edinburgh, Holyrood area of Edinburgh, and is frequently referred to by the metonym 'Holyrood'. ...
, and applies similar rules to the copyrights of certain international organisations. Crown copyright last for fifty years after publication, or 125 years after creation for unpublished works (s. 163): however, no unpublished works of the Crown will come into the
public domain The public domain (PD) consists of all the creative work to which no Exclusive exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly Waiver, waived, or may be inapplicable. Because no one holds ...
until 31 December 2039, that is fifty years after the commencement of section 163. Acts of the United Kingdom and Scottish parliaments and Church of England measures are protected by Crown copyright for fifty years from royal assent (s. 164). Works of the parliaments of the United Kingdom and of Scotland, except bills and acts, are protected by parliamentary copyright for fifty years after creation: bills are protected from the date of their introduction to the date of royal assent or of rejection (ss. 165–167, Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676). The works of the
United Nations The United Nations (UN) is the Earth, global intergovernmental organization established by the signing of the Charter of the United Nations, UN Charter on 26 June 1945 with the stated purpose of maintaining international peace and internationa ...
and its specialised agencies and of the Organisation of American States are protected for fifty years after creation (s. 168, Copyright (International Organisations) Order 1989 No. 989).


Enforcement of copyright

Infringement of copyright is actionable by the copyright owner as the infringement of a property right (s. 96) or, in the case of infringement of
moral rights Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. The moral rights include the right of attribution, the right to have a work p ...
, as the
tort A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...
of breach of statutory duty (s. 103).
Damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognized at ...
will not be awarded against an "innocent" defendant, i.e. one who did not know and had no reason to know that the work was under copyright, but other remedies (e.g.
injunction An injunction is an equitable remedy in the form of a special court order compelling a party to do or refrain from doing certain acts. It was developed by the English courts of equity but its origins go back to Roman law and the equitable rem ...
,
account of profits Account (abbreviated a/c) may refer to: * Account (bookkeeping) * A report * A bank account ** Deposit account ** Personal account ** Sweep account ** Transaction account * User account, the means by which a user can access a computer system * C ...
:
Scots law Scots law () is the List of country legal systems, legal system of Scotland. It is a hybrid or mixed legal system containing Civil law (legal system), civil law and common law elements, that traces its roots to a number of different histori ...
interdict, accounting and payment of profits) continue to be available (s. 97, see '' Microsoft v Plato Technology''). Orders are available for the delivery up (Scots law: delivery) and disposal of infringing copies (ss. 99, 114): copyright owners may also seize such copies (s. 100). The making, dealing in or use of infringing copies is a
criminal offence In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
(s. 107). Copyright owners may ask the
HM Revenue and Customs His Majesty's Revenue and Customs (commonly HM Revenue and Customs, or HMRC, and formerly Her Majesty's Revenue and Customs) is a department of the UK government responsible for the collection of taxes, the payment of some forms of stat ...
to treat infringing copies as "prohibited goods", in which case they are prohibited from import (s. 111). Section 297 of the Act makes it an offense to fraudulently receive broadcasts for which a payment is required. Section 300 creates the offense of fraudulently using a trademark, inserted as ss. 58A–58D of the Trade Marks Act 1938 c. 22.


Infringement of performers' rights

The Copyright and Related Rights Regulations 2003 amended the CDPA to provide an additional right of performers to require consent before making copies of their performances available to the public by electronic transmission.


Secondary infringement

The act codifies the principle of secondary infringement, that is knowingly enabling or assisting in the infringement of copyright, which had previously been applied at common law (see '' R v Kyslant''). Secondary infringement covers: *importing infringing copies (s. 22); *possessing or dealing with infringing copies (s. 23); *providing means for making infringing copies (s. 24); *permitting the use of premises for infringing performances (s. 25); *providing apparatus for infringing performances (s. 26). Liability for secondary infringement is dependent on the defendant knowing or having reason to believe, that the activities in question are wrongful. This question of requisite knowledge is determined objectivity.


Criminal offences

Copyright infringement that may be criminal offences under the Copyright, Designs and Patents Act 1988 are the: * Making copies for the purpose of selling or hiring them to others * Importing infringing copies (except for personal use) * Offering for sale or hire, publicly displaying or otherwise distributing infringing copies in the course of a business * Distributing a large enough number of copies to have a noticeable effect on the business of the copyright owner * Making or possessing equipment for the purposes of making infringing copies in the course of a business * Publicly performing a work in knowledge that the performance is unauthorised * Communicating copies or infringing the right to "make available" copies to the public (either in the course of a business, or to an extent prejudicial to the copyright owner) * Manufacturing commercially, importing for non-personal use, possessing in the course of a business, or distributing to an extent that has a noticeable effect on the business of the copyright holder, a device primarily designed for circumventing a technological copyright protection measure. The penalties for these copyright infringement offences may include: * Before a magistrates' Court, the penalties for distributing unauthorised files are a maximum fine of £5,000 and/or six months imprisonment; * On
indictment An indictment ( ) is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offense is a felony; jurisdictions that do not use that concept often use that of an ind ...
(in the Crown Court) some offences may attract an unlimited fine and up to 10 years imprisonment.


Copyright Tribunal

The Act establishes the Copyright Tribunal as a continuation of the tribunal established under s. 23 of the 1956 Act (s. 145). The Tribunal is empowered (s. 149) to hear and determine proceedings concerning: *copyright licensing schemes; *royalties for rental of sound recordings, films or computer programs; *licences made available as of right under s. 144 (powers of the Monopolies and Mergers Commission under the Fair Trading Act 1973 c. 41); *the refusal of a performer to give consent under his rights in performances; *royalties under the perpetual copyright of " Peter Pan" (see above). An appeal on any point of law lies to the High Court, or to the
Court of Session The Court of Session is the highest national court of Scotland in relation to Civil law (common law), civil cases. The court was established in 1532 to take on the judicial functions of the royal council. Its jurisdiction overlapped with othe ...
under
Scots law Scots law () is the List of country legal systems, legal system of Scotland. It is a hybrid or mixed legal system containing Civil law (legal system), civil law and common law elements, that traces its roots to a number of different histori ...
.


Design right

Part III of the Act creates a " design right" separate from the registration of designs governed by the Registered Designs Act 1949. To qualify, the design must be original (not commonplace in the field in question) and not fall into one of the excluded categories (s. 213(3)): * principles and methods of construction; * articles which must connect with or otherwise fit another article so that one or the other may perform their function; * designs which are dependent on the appearance of another article; * surface decoration. The design must be recorded in a document after 1989-08-01 (s. 213(6)): designs recorded or used before that date do ''not'' qualify (s. 213(7)). The design right lasts for fifteen years after the design is recorded in a document, or for ten years if articles have been made available for sale (s. 216).


Designs and typefaces

The copyright in a design document is not infringed by making or using articles to that design, unless the design is an artistic work or a typeface (s. 51). If an artistic work has been exploited with permission for the design by making articles by an industrial process and marketing them, the work may be copied by making or using articles of any description after the end of a period of twenty-five years from the end of the calendar year when such articles were first marketed (s. 52). It is not an infringement of the copyright in a typeface to use it in the ordinary course of printing or to use the material produced by such printing (s. 54).


Registered designs

Part IV of the Act contains a certain number of amendments to the Registered Designs Act 1949 c. 88. The criteria for registration of a design and the duration of the registered design right (ss. 1 & 8 of the 1949 Act) are notably modified. Provisions are also added to allow ministers to take action to protect the public interest in
monopoly A monopoly (from Greek language, Greek and ) is a market in which one person or company is the only supplier of a particular good or service. A monopoly is characterized by a lack of economic Competition (economics), competition to produce ...
situations (s. 11A of the 1949 Act) and to provide for compensation for Crown use of registered designs (para. 2A to Schedule 1 to the 1949 Act). A consolidated version of the Registered Designs Act 1949 is included (s. 273, Schedule 4).


Patents and trademarks

Part V of the act provides for the registration of patent agents and trade mark agents and for the privilege of their communications with clients from disclosure in court. Part VI of the act creates a system of patents county courts for proceedings involving patents which are of a lesser financial implication.


Commencement

There are numerous commencement dates for the different sections of the Act, detailed below. The provisions on copyright, rights in performances and design right came into force on 1 August 1989, while the registration of patent agents and trade mark agents came into force on 13 August 1990. The Copyright, Designs and Patents Act 1988 (Commencement No. 2) and (Commencement No. 3) Orders 1989 are technical measures to allow the preparation of secondary legislation.


Modifications


Transposition of European Union directives

The following regulations were made under the European Communities Act 1972 in order to implement European Union directives in UK law. Also: *Copyright (EC Measures Relating to Pirated Goods and Abolition of Restrictions on the Import of Goods) Regulations 1995 No. 1445 *Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 No. 2356


Other modifying measures

* National Health Service and Community Care Act 1990 c. 19 * Courts and Legal Services Act 1990 c. 41 *
Broadcasting Act 1990 The Broadcasting Act 1990 (c. 42) is an Act of Parliament (UK), act of the Parliament of the United Kingdom, which aimed to liberalise and deregulate the British broadcasting industry by promoting competition; an example being ITV (TV network), ...
c. 42 * Judicial Pensions and Retirement Act 1993 c. 8 * Charities Act 1993 c. 10 * Trade Marks Act 1994 c. 26 *
Criminal Justice and Public Order Act 1994 The Criminal Justice and Public Order Act 1994 (c. 33) is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the law, most notably in the restriction and reduction of existing rights, clamping down on unlicensed ...
c. 33 * Broadcasting Act 1996 c. 55 *Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676 *Conditional Access (Unauthorised Decoders) Regulations 2000 No. 1175 * Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 c. 25 * Copyright (Visually Impaired Persons) Act 2002 c. 33 * Legal Deposit Libraries Act 2003 c. 28 *Re-use of Public Sector Information Regulations 2005 No. 1515 *Performances (Moral Rights, etc.) Regulations 2006 No. 18


Other secondary legislation


Copyright (Industrial Process and Excluded Articles) (No. 2) Order 1989 No. 1070


See also

* Sui generis database right#United Kingdom * Office of Fair Trading * Related rights * Copyright user rights for educational purposes detailed in the act


Notes

# Sectio
304
of the CDPA. # The Berne Convention came into force for the United Kingdom on 5 December 1887. The United Kingdom ratified the Paris Act of the convention on 2 January 1990. The Paris Act extends to the
Isle of Man The Isle of Man ( , also ), or Mann ( ), is a self-governing British Crown Dependency in the Irish Sea, between Great Britain and Ireland. As head of state, Charles III holds the title Lord of Mann and is represented by a Lieutenant Govern ...
from 18 March 1996. Source
Contracting parties. Berne Convention for the Protection of Literary and Artistic Works
WIPO Lex. Retrieved 2025-05-27. # Modifications to the duration of copyright were by transposition o
Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights
''OJ'' no. L290 of 24 November 1993, p. 9.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
''OJ'' no. L167 of 22 June 2001, p. 10, corrected by ''OJ'' no. L006 of 10 January 2002, p. 70. # This does not apply if there is an approved licensing scheme which covers the broadcasts. Se
Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Open University) Order 2003 No. 187

Copyright (Application of Provisions relating to Educational Establishments to Teachers) (No. 2) Order 1989 No. 1067Copyright (Educational Establishments) Order 2005 No. 223

Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989 No. 1212

Copyright (Material Open to Public Inspection) (Marking of Copies of Maps) Order 1989 No. 1099Copyright (Material Open to Public Inspection) (Marking of Copies of Plans and Drawings) Order 1990 No. 1427

Copyright (Material Open to Public Inspection) (International Organisations) Order 1989 No. 1098
# Public Records (Scotland) Act 1937 c. 43. Public Records (Northern Ireland) Act 1923 c. 20 (N.I.).
Copyright (Recordings of Folksongs for Archives) (Designated Bodies) Order 1989 No. 1012

Copyright (Sub-titling of Broadcasts and Cable Programmes) (Designated Body) Order 1989 No. 1013

Copyright (Recording for Archives of Designated Class of Broadcasts and Cable Programmes) (Designated Bodies) Order 1993 No. 74
# See als
Copyright and Rights in Performances (Notice of Seizure) Order 1989 No. 1006
# See als
Copyright (Customs) Regulations 1989 No. 1178Goods Infringing Intellectual Property Rights (Customs) Regulations 2004 No. 1473
# See als
Copyright Tribunal Rules 1989 No. 1129Copyright Tribunal (Amendment) Rules 1991 No. 201Copyright Tribunal (Amendment) Rules 1992 No. 467

The Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676

The Copyright (International Organisations) Order 1989 No. 989
.
The Copyright (Bermuda) Order 2003 No. 1517
.
The Copyright (Gibraltar) Order 2005 No. 853
.
The Copyright (Application to the Isle of Man) Order 1992 No. 1313
. #
Botswana Botswana, officially the Republic of Botswana, is a landlocked country in Southern Africa. Botswana is topographically flat, with approximately 70 percent of its territory part of the Kalahari Desert. It is bordered by South Africa to the sou ...
, the
Seychelles Seychelles (, ; ), officially the Republic of Seychelles (; Seychellois Creole: ), is an island country and archipelagic state consisting of 155 islands (as per the Constitution) in the Indian Ocean. Its capital and largest city, Victoria, ...
, the
Solomon Islands Solomon Islands, also known simply as the Solomons,John Prados, ''Islands of Destiny'', Dutton Caliber, 2012, p,20 and passim is an island country consisting of six major islands and over 1000 smaller islands in Melanesia, part of Oceania, t ...
and
Uganda Uganda, officially the Republic of Uganda, is a landlocked country in East Africa. It is bordered to the east by Kenya, to the north by South Sudan, to the west by the Democratic Republic of the Congo, to the south-west by Rwanda, and to the ...
have been removed from the list of countries enjoying qualification as former dependent territories with respect to the list which applied for the 1956 Act
The Copyright (Status of Former Dependent Territories) Order 1990 No. 1512
. # See als
Copyright and Performances (Application to Other Countries) Order 2006 No. 316
# The United Kingdom became a party to the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations on 18 May 1964 subject to a declaration concerning Articles 5(1)(b), 6(2) and 16(1)(a)(ii), (iii) and (iv) 'Le Droit d'auteur'', 1963, p. 244 The convention extends to
Gibraltar Gibraltar ( , ) is a British Overseas Territories, British Overseas Territory and British overseas cities, city located at the southern tip of the Iberian Peninsula, on the Bay of Gibraltar, near the exit of the Mediterranean Sea into the A ...
and
Bermuda Bermuda is a British Overseas Territories, British Overseas Territory in the Atlantic Ocean, North Atlantic Ocean. The closest land outside the territory is in the American state of North Carolina, about to the west-northwest. Bermuda is an ...
with the same declaration 'Copyright'', 1967, p. 36; ''Copyright'', 1970, p. 108 and to the
Isle of Man The Isle of Man ( , also ), or Mann ( ), is a self-governing British Crown Dependency in the Irish Sea, between Great Britain and Ireland. As head of state, Charles III holds the title Lord of Mann and is represented by a Lieutenant Govern ...
(with effect from 28 July 1999). Source
Contracting parties. Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
WIPO Lex. Retrieved 2025-05-27. # The application of the WIPO Performances and Phonograms Treaty in UK law is made by the Performances (Moral Rights, etc.) Regulations 2006 No. 18. # This provision has been extended to
Guernsey Guernsey ( ; Guernésiais: ''Guernési''; ) is the second-largest island in the Channel Islands, located west of the Cotentin Peninsula, Normandy. It is the largest island in the Bailiwick of Guernsey, which includes five other inhabited isl ...

Fraudulent Reception of Transmissions (Guernsey) Order 1989 No. 2003

The Copyright, Designs and Patents Act 1988 (Commencement No. 4) Order 1989 No. 1303

The Copyright, Designs and Patents Act 1988 (Commencement No. 1) Order 1989 No. 816

The Copyright, Designs and Patents Act 1988 (Commencement No. 5) Order 1990 No. 1400

The Copyright, Designs and Patents Act 1988 (Commencement No. 6) Order 1990 No. 2168

The Copyright, Designs and Patents Act 1988 (Commencement No. 2) Order 1989 No. 955The Copyright, Designs and Patents Act 1988 (Commencement No. 3) Order 1989 No. 1032

Design Right (Semiconductor Topographies) Regulations 1989 No. 1100
amended by th
Design Right (Semiconductor Topographies) (Amendment) Regulations 2006 No. 1833

Copyright (Computer Programs) Regulations 1992 No. 3233

Copyright and Related Rights Regulations 1996 No. 2967

The Duration of Copyright and Rights in Performances Regulations 1995 No. 3297
.
Copyright and Rights in Databases Regulations 1997 No. 3032
amended by th
Copyright and Rights in Databases (Amendment) Regulations 2003 No. 2501

The Copyright and Related Rights Regulations 2003 No. 2498
. # The United Kingdom lost a "failure to transpose" case in the
European Court of Justice The European Court of Justice (ECJ), officially the Court of Justice (), is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Union, it is tasked with interpreting ...
with respect to Directive 2001/29/EC
''Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland''
(Case C-88/04), ''OJ'' no. C045 of 19 February 2005, p. 11.
Artist's Resale Right Regulations 2006 No. 346


# ttp://www.legislation.gov.uk/uksi/1995/1445/contents/made Copyright (EC Measures Relating to Pirated Goods and Abolition of Restrictions on the Import of Goods) Regulations 1995 No. 1445
The Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676

Conditional Access (Unauthorised Decoders) Regulations 2000 No. 1175
# For commencement, see th
Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (Commencement) Order 2002 No. 2749
# For commencement, see th
Copyright (Visually Impaired Persons) Act 2002 (Commencement) Order 2003 No. 2499
# For commencement, see th
Legal Deposit Libraries Act 2003 (Commencement) Order 2004 No. 130

Re-use of Public Sector Information Regulations 2005 No. 1515

Performances (Moral Rights, etc.) Regulations 2006 No. 18


References


Further reading

*


External links


Design right
at Gov.uk

{{UK legislation United Kingdom Acts of Parliament 1988 United Kingdom copyright law United Kingdom patent law Copyright legislation Patent legislation Intellectual property legislation