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The new Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 are set to bring rightsholders to the end of a period of some uncertainty following questions raised by the exceptions to copyright infringement under section 72 of the Copyright, Designs and Patents Act 1988 (CDPA). Case law had found the scope of the exceptions to be unclear and highlighted inconsistency between the EU Copyright Directive and the CDPA in relation to copyright in any film included in a broadcast. It is hoped that the new regulations will make it easier for rightsholders to bring enforcement action against copyright infringement.
Back in 2012, in Football Association Premier League Ltd and others v QC Leisure and others  EWCA Civ 1708 it was found that publicans who use foreign decoder cards to screen foreign satellite broadcasts of Premier League football matches to the public will be infringing copyright. However, the case did not bring an end to the problems in this area.
Without purchasing the relevant rights packages, publicans can infringe copyright (i) under section 19 CDPA for the playing or showing of a sound recording, film or broadcast in public and (ii) under section 20 of the CDPA for the communication to the public of a literary, dramatic, musical or artistic work, a sound recording or film or a broadcast. However, the section 72 CDPA exception permits those who play broadcasts in a publicly accessible location to an audience who have not paid for it, to do so without the need to seek licences for some, but not all, rights in the broadcast.
Due to the way the Copyright Directive (2001/29/EC) was transposed into UK law, the defence to copyright infringement under section 72(1)(c) stated that the showing or playing in public of a broadcast, to an audience who have not paid for it, does not infringe copyright in any film included in the broadcast. The QC Leisure case confirmed that this applied as an exception to copyright infringement under both section 19 and 20 of the CDPA (despite the fact that it only referred to “showing or playing” rather than “communication to the public” but went beyond the scope of any exception permitted under Article 3 of the EU Copyright Directive.
Not only was the Copyright Directive incorrectly transposed into UK law so as to be compatible with EU law, but it made it difficult for rights holders to bring enforcement action. In LC Leisure, Football Association Premier League could only bring copyright infringement action for infringement copyright in the logos, graphics and accompanying music of the broadcast rather than in the footage itself. Consequently rightsholders had to hope that their content contained sufficient graphics and logos in order to secure a successful court order against copyright infringement.
The government has since grappled with how to fix this issue. In a 2015 consultation, the government initially proposed to narrow the remaining scope of the section 72 exception so that it cannot be relied on by commercial premises (such as pubs) in order to avoid obtaining an appropriate commercial viewing licence to show exclusive subscription broadcasts in public. However, respondents highlighted a number of difficulties with this approach.
Instead, in March of this year the government proposed to remove the section 72(1)(c) exception for film within a broadcast altogether following a second consultation. However, in the light of respondents' concerns, the government has decided not to also amend the remainder of section 72(1) to refer to "communication to the public". This was proposed by the government in order to clarify that the "showing or playing in public" of a broadcast will also constitute an act of "communication to the public", such that section 72 should be interpreted to apply to both section 19 and 20 CDPA in line with the QC Leisure decision. The government felt that this was not intended to effect any substantive change and has therefore concluded that further amendment is unnecessary and will remain as interpreted by the Courts.
These amendments will now be successfully transposed into UK law as of June 2016. The Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 were laid before Parliament on 9 May 2015 and come into force on the 15th June 2016.
The Government’s view is that by removing “film” from Section 72 it hopes to bring greater clarity to the law and clearly establish that copyright holders can bring infringement proceedings against those who use unauthorised systems to show subscription-only broadcasts.
For more information please contact Christina Fleming on +44 (0)20 7427 1022 or at email@example.com