Articles filed under Copyright

The government recently indicated a willingness to diverge from EU regulations post-Brexit. Perhaps one of the more significant moves in this direction is the announcement by Universities and Science Minister Chris Skidmore that the UK will not implement the controversial EU Copyright Directive.

The new EU copyright law that copyright lawyers, artists, management and media companies have been waiting for was passed on 17 April 2019 as Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC. The directive is not law as is (although some of its provisions are mandatory); most of its provisions will have to pass into the local law of member states by 2021. Other provisions will need to be implemented by 2022.

The diverse cultural differences across EU member states will mean its implementation is likely to be different across the EU.

Copyright law is being challenged by disruptive technologies such as AI and blockchain, themes addressed in the recently published 5th edition of the author’s book Digital Copyright, on which this article is based.


I’ve always liked the word “liminality” – a threshold that marks the boundary between two phases. If nothing else, Brexit presents an opportunity for its appropriate use. The UK’s current state, where we are still in the EU but apparently heading somewhere else, does feel liminal, with its quality (to quote Wikipedia) of ambiguity or disorientation.

You can sense this in the way the Commission’s significant proposals for copyright reform have been greeted in the UK. The Proposal for a Digital Copyright Directive (more on which below) and Regulation on rights clearance for online TV programming, if adopted, will represent significant modifications to European copyright law. But the response in the UK seems muted, reflecting an uncertainty about their applicability to a post Brexit UK, a sense in which they seem both relevant and irrelevant to the UK.

One of the decisions that website owners often need to make these days is whether to allow people to add comments or other content to their website. Of itself, this isn’t a legal issue, but a decision to allow comments or other user content on a website does give rise to legal considerations. These considerations may be relevant to you if, for example, you run or are thinking of setting up a legal blog or forum. They may also be relevant to you if you act for clients on website-related matters.

If you allow others to post content to your site, three broad issues arise:

  • whether you need to obtain a licence to re-use content posted to your site by others for purposes other than reproduction on the site itself (eg you might want to publish helpful comments in an ebook);
  • whether to moderate content and, if so, when; and
  • how to protect yourself from liability arising from material posted to your site that infringes third party rights.

As simple as it is to find images online, one could be forgiven for thinking it is just as easy to know which images may be used. Unfortunately, the complexities of copyright law and the limited awareness of its rules can make the process of finding and using images a potential minefield for businesses. No matter how widely used and well known an image may be, if it is still subject to copyright it is not within the public domain, which means you need permission to use it. And fair-dealing defences to infringement are typically narrower than might be expected.

Tools such as TinEye or Google’s search by image mean it has never been easier for copyright owners to discover infringing uses of their images online. So, it is imperative to take precautions, and seek legal advice when using images, particularly online.

Copyright is the property right the law gives authors/creators and those taking ownership from them to control the copying and other forms of exploitation of their creations or “works”. The traditional view is that copyright arose out of lobbying by printers to prevent the piracy of their books. So in one sense it was a response by vested economic interests to the growth of a new technology. The first UK copyright statute dates back to 1709. The current statute, the Copyright, Designs and Patents Act (“CDPA”), dates from 1988. A lot may have changed in 300 years or so but it remains the case that those who exploit their creativity (or that of others) continue to use copyright to fight a battle against piracy and the pirates become ever more sophisticated in their approach.

Digitisation is yet another new technology copyright is coming to terms with.

The problem with a lot of the debate about copyright is that it becomes polarised. It’s “big media” v the “little guy”. It’s “closed copyright, a barrier to innovation” v “open internet, cultural advancement and freedom of expression”. It’s bad guy, good guy.

It’s also not unusual to read that the absence of a “fair use” doctrine in Europe and elsewhere acts as a break on creativity and a barrier to innovation. No doubt I could be accused of doing the same thing when I write that copyright is a Darwinian species, capable of adapting to the network. However, if we are going to move into a more nuanced debate, I think it’s worth making four basic points.

The copyright “paradox”

Copyright works, created by professionals and amateurs alike, are ubiquitous on the network, on social media platforms, websites and online services. In June this year, the Intellectual Property Office (IPO) and Imperial College published new estimates of investment in the UK’s copyright industries, of which the publishing industry is a significant part. When adopted in the National Accounts this adds more than £3 billion to the economy.

Illegal downloading is a devastating problem for the record industry. £650 million was lost last year to music crime and £1.1 billion in the three preceding years. The how and where of file sharing, its detection and consequences and the precautions which can be taken.