New copyright exceptions in force from 1 June – do you know how they affect your business?

On 1 June 2014, new copyright exceptions came into force. Billed by the IP Minister Lord Younger as making the UK copyright system fit for the digital age, they make legal certain minor and reasonable uses of copyright material. They include (1) more extensive rights to copy material for disabled people; (2) a new text and data mining exception for non-commercial research; (3) broader rights for educational institutions to use copyright material on whiteboards and in presentations; (4) greater flexibility for museums and galleries to preserve works covered by copyright; and (5) greater freedom for public bodies to publish material online.

Two key exceptions, however, remain stymied in Parliament: the exception for private copying and the exception for copying by way of quotation and parody. New draft statutory instruments in respect of these exceptions have now been published and they are expected to come into force on 1 October 2014. In the meantime, if you are in the education or art sectors or involved in non-commercial research, the new exceptions already in force could benefit your business.

The exceptions in force as of 1 June 2014 include the following provisions. By virtue of the Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014, you can make a copy of a work you have lawful access to provided it is made for analysis of anything recorded in the work for the sole purpose of research for a non-commercial purpose and is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise). This should free up materials for non-commercial research. What amounts to commercial and non-commercial research, of course, may be the subject of some interpretation by the courts in due course.

For disabled people and support groups the making of accessible copies of copyright works will not amount to a copyright infringement under the new Copyright and Rights in Performances (Disability) Regulations 2014. Authorised bodies such as educational establishments are also permitted to make accessible copies for the personal use of disabled people utilising their services. The copy must include sufficient acknowledgement and must not be subsequently dealt with. The Copyright (Public Administration) Regulations 2014 extend certain copyright exceptions regarding public documents (in official registers that are open to the public to inspect) in order to permit the relevant public bodies to publish the material on the internet so the public can access it online.

The quotation and parody copyright exceptions are contained in the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 (due to come into force on 1 October 2014) and amend the Copyright, Designs and Patents Act 1988. They provide that copyright in a work is not infringed by quotations where (1) the copyright work has been made available to the public; (2) the use of the quotation is fair dealing with the work; (3) the extent of the quotation is no more than is required by the specific purpose for which it is used; and (4) the quotation is accompanied by sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise). As for caricature, parody or pastiche, fair dealing with a work for those purposes does not infringe copyright in the work. It is not permissible to contract out of that provision. Quite how in practice caricature, parody or pastiche will be interpreted by the courts remains to be seen. This change provides a partial defence for those who wish to parody but no security that what they do will be considered fair dealing and therefore not an infringement. It should make quotation for a specific purpose and with sufficient acknowledgement easier. The private copyright exceptions are contained in the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 and come into force on 1 October 2014. This amendment to the Copyright, Designs and Patents Act 1988 will permit private individuals to make copies of a work (other than a computer program) provided the copy is of the individual’s own copy of the work and is a personal copy, made for the individual’s private use, and not directly or indirectly for commercial ends. The individual’s copy must have been lawfully acquired on a permanent basis. This can include a gift but not a copy borrowed, rented, broadcast, streamed, or downloaded enabling temporary access. ‘Private use’ can include a copy for back-up or format-shifting purposes or for electronic storage.

There will also be a procedure to enable individuals to complain to the Secretary of State if they are prevented from making personal copies of works due to restrictive measures applied by or on behalf of the copyright owner. These provisions do little more than bring the law into line with consumer practice but that is, nevertheless, an important regularisation of the prevailing situation.

These are welcome extensions to copyright exceptions for certain educational and public institutions as well as for those with disabilities. Comedians and advertisers looking forward to more freedom to parody will have to be patient, as will individuals waiting for the law to lift restrictions on copying material for private use.