Copyright Designs and Patents Act 1988

The UK Copyright Designs and Patents Act 1988 provides the statutory basis of UK copyright law, including performing rights.

The Copyright Designs and Patents Act 1988, also known as the CDPA was introduced to protect investment, time and money by people who create original pieces of work. These include authors, composers and film makers, web and software designers etc.

The Copyright Designs and Patents Act 1988 also creates an unregistered design right, and contains a number of modifications to the law of the United Kingdom on registered designs and patents...

The Copyright Designs and Patents Act 1988

  • restates the law of copyright, with amendments;
  • makes fresh provision as to the rights of performers & others in performances;
  • makes provision with respect to patent agents & trade mark agents;
  • confers patents & designs jurisdiction on certain county courts;
  • amends the law of patents; makes provision with respect to devices designed to circumvent copy-protection of works in electronic form;
  • makes fresh provision penalising the fraudulent reception of transmissions; and
  • makes the fraudulent application or use of a trade mark an offence.

The Act 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).


Business liability


A company director is personally liable for a company's infringement of copyright; an employer is liable for any breach through the unauthorised use or distribution of copyrighted material, particularly from the Internet.

It isn't a copyright infringement for a lawful user of a copy of a computer program expressed in a low level language to de-compile it in order to create an independent program.


Supervision and enforcement


The copyright regime is supervised by the Intellectual Property Office


Works subject to copyright


The Copyright Designs and Patents Act 1988 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
  • 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.
  • cable programmes (s. 7). A cable programme is a part of a service which transmits images, sound or other information to two or more different places or to members of the public by any means other than wireless telegraphy. There are several exceptions, including general Internet use, which may be modified by Order in Council.
  • 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).

Rights in Performances


Under the Copyright Designs and Patents Act 1988 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.


Copyright Duration


  • Literary, dramatic, musical or artistic works (s. 12) 70 years from the death of the author. If the author is unknown, copyright expires seventy years after the work is first made available to the public
  • Computer-generated works 50 years after the work is made.
  • Sound recordings and films (S. 13) 50 years after the recording is made. If the recording or film is released (published, broadcast or shown in public) within this period, the copyright lasts for fifty years from the date of first release.
  • Broadcasts and cable programmes (s. 14) 50 years after the first broadcast or transmission. The repeat of a broadcast or a cable programme does not generate a new copyright period.
  • Typographical arrangements (s. 15) 25 years after the edition is published.

Offences and Penalties


Under section 107(1) a person commits an offence who, without the licence of the copy right owner -

(a) makes for sale or hire, or (b) imports into the united kingdom otherwise that for his private and domestic use, or (c) possesses in the course of a business with a view to committing any act infringing the copyright, or (d) in the course of a business - (i) sells or lets for hire, or (ii) offers or exposes for sale or hire, or (ill) exhibits in public, or (iv) distributes, or (e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

An article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.

Under section 107(2) a person commits an offence who -

(a) makes an article specially designed or adapted for making copies of a particular copyright work, or (b) has such an article in his possession, knowing or having a reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business. Under section 107(3) where copyright is infringed (otherwise than by reception of a broadcast or cable programme) - (a) by the public performance of a literary, dramatic or musical work, or (b) by the playing or showing in public of a sound recording or film, Any person who caused the work to be so performed, played or shown is guilty of an offence if he knew or had reason to believe that copyright would be infringed.

Penalties

Section 107(4) provides that the offences under section 107(1)(a);(b);(d)(iv) and (e) are offences tryable either way. On conviction on indictment the maximum penalty is ten years imprisonment and/or an unlimited fine. On summary conviction the maximum penalty is 6 months imprisonment and/or a 5,000 GBP fine. All of the remaining offences under section 107 are summary offences carrying a maximum penalty of 6 months imprisonment and/or a 5,000 GBP fine.


Specimen charges/summonses


(1) on the... Day of... 19.. at... without the licence of the copyright owner you made for sale/hire an article, namely ... Which was and which you knew or had reason to believe was an infringing copy of a copy right work. contrary to section 107(1)(a) of the Copyright, Designs and Patents Act 1988

(2) on the ... Day of... 19.. at... without the licence of the copyright owner in the course of a business you distributed an article, namely ... Which was and which you knew or had reason to believe was an infringing copy of a copyright work. contrary to section 107(1)(d)(iv) of the Copyright, Designs and Patents Act 1988

(3) on the ... Day of... 19.. at ... without the licence of the copyright owner in the course of a business you sold/let for hire an article, namely ... Which was and which you knew or had reason to believe was an infringing copy of a copyright work. contrary to section 107(1)(d)(i) of the Copyright, Designs and Patents Act 1988

(4) on the ... Day of... 19.. at... without the licence of the copyright owner you had in your possession in the course of a business an article, namely ... Which was and which you knew or had reason to believe was an infringing copy of a copyright work and with a view to committing an act infringing its copyright. contrary to section 107(1)(c) of the Copyright, Designs and Patents Act 1988

(5) on the ... Day of... 19.. at... did cause a film, namely ... To be shown in public whereby the copyright in the said work was infringed knowing or having reason to believe that the copyright would be infringed. contrary to section 107(3) of the Copyright, Designs and Patents Act 1988.


Fair dealing and permitted copying


The following are also permitted acts (the list is not exhaustive):

  • Fair dealing in a work for the purposes of private study or research (s. 29)
  • Fair dealing in a work with acknowledgment for the purposes of criticism or review or, unless the work is a photograph, for the purposes of news reporting (s. 30);
  • Incidental inclusion of copyright material in another work (s. 31);
  • Public reading or recital by a single person with acknowledgment (s. 59);
  • Copying and distribution of copies of the abstracts of scientific and technical articles (s. 60);
  • Recordings of folksongs 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);
  • 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


Copying for educational use (including examination) is permitted so long as it 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 is only permitted within the limit of 1% of the work per three-month period (s. 36).


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)


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 or statutory inquiry (ss. 45, 46). The Crown may make copies of works which are submitted to it for official purposes (s. 48).


Moral rights


The Copyright Designs and Patents Act 1988 creates a specific regime of moral rights for the first time in the United Kingdom: previously, an author's moral right had to be enforced through other torts, e.g. defamation, passing off, malicious falsehood. 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 his heirs on his death (s. 95): however, they may be waived by consent (s. 87). The right to object to false attribution of work last for twenty years after a person death, the other moral rights last for the same period as the other copyright rights in the work (s. 86).


Crown and Parliamentary copyright


The Copyright Designs and Patents Act1988 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 and the Scottish Parliament, and applies similar rules to the copyrights of certain international organisations.

Crown copyright last for 50 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 until 31 December 2039, that is 50 years after the commencement of section 163.


Reference


Copyright Designs and Patents Act 1988

UK/1988/C/48