February 28, 2022
Section 72 of the Copyright, Designs and Patents Act 1988 (CDPA) creates an exception to copyright infringement that permits the free showing of a broadcast and certain copyright elements of a broadcast in places where the public has free access.
In June 2021, the IPO launched a call for views on the changes that were made to s 72 of the CDPA in 2016 by the Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016, which removed “film” from the list of exceptions. This legislation was made following a series of court judgments, including a reference to the Court of Justice of the European Union (CJEU). These obliged the UK to amend s 72 and ensure it was consistent with EU law. Essentially, the changes were made to oblige pubs to obtain the correct commercial licences for subscription-based sports channels, and to provide greater clarity on the law in this area.
The June 2021 call for views was part of a post-implementation review of the Regulations, which the Secretary of State was obliged to do within five years of the legislation coming into force. The IPO sought evidence and views on the effect of the changes to s 72. The IPO also held a series of roundtable meetings with rights holders, rights holder representatives, licensing bodies and copyright users. The IPO received 12 written submissions from stakeholders, ten of which were from rights holders or organisations representing rights holders. The IPO also considered evidence that arose from interactions with other government departments. It has now published the final post-implementation review of the legislation.
According to the review, no concerns were raised about the first objective regarding consistency with EU law, although this view was informed primarily by evidence from rights holders. As for ensuring that pubs have the correct commercial licences in place, rights holders considered that the Regulations remain relevant and allow for clear licensing options to be provided for the benefit of users. In terms of providing clarity, rights holders said that the Regulations add greater clarity to the law and have significantly enhanced the ability to enforce and have helped reduce copyright infringement. However, some copyright users said that the Regulations have led to a higher level of licensing activity, and the cost of licences is not always clearly explained nor proportionate to the amount of content used.
In terms of unintended consequences from the introduction of the legislation, the review finds that there has been an increase in licensing activity covering a broader range of premises which show television following the clarification of the law introduced under the Regulations. Copyright users cited some unintended consequences from the increase in licensing demands, including televisions being removed from staff canteens, receptions, and other work environments. Some users pointed to the adverse impact that increased licensing activity has had on local authority budgets and the delivery of their services.
As for whether the evidence identified any opportunities for reducing the burden on business, the review states that one stakeholder recommended more clarity on the requirement for licences and supervision of the role of licensors and/or collecting societies, observing that it was not easy for businesses to assess what the licences cover and how the cost of the licences is calculated.
Overall, the information gathered through the review pointed to a broad consensus amongst respondents that the original aims of the Regulations remain relevant and are efficient. Consequently, many stakeholders supported their retention. The change has had the effect of both adding clarity to the law and removing an exception, but has also stimulated licensing demands. This has impacted copyright users, as TVs have been removed from certain public access and work areas. Going forward, the IPO will monitor and evaluate licensing activities, paying particular attention to the impacts on copyright users, through stakeholder engagement. It will also be issuing updated guidance to give copyright users more clarity over licensing requirements, such as how licence prices are calculated and what uses licences cover.
The final recommendation from the review is to keep the 2016 legislation in place. To access the final review, click here.