Consultation Paper issued on implementation of Information Society Directive

The Patent Office recently issued a long-awaited Consultation Paper on the implementation of Directive 2001/129/EC on the harmonisation of certain aspects of copyright and related rights in the information society (“the Directive).

The Directive aims to harmonise those elements of copyright law which are most relevant to e-commerce and the information society. The Consultation Paper includes draft amendments to the Copyright, Designs and Patents Act 1988 which will eventually be implemented by way of a Statutory Instrument.

Some of the key proposals are as follows:

· A new right of communication of a work to the public will replace the existing right to broadcast or include a work in a cable programme. The new right will apply to literary, dramatic, musical or artistic works and will cover broadcasting and the inclusion of the works in an “on demand or other interactive service.

· There will be a new exception to infringement for certain types of work (not including computer programmes or databases) for the making of a temporary transient or incidental copy of the work, provided certain conditions are met. This exception is intended to cover caching and browsing activities, including those carried out by Internet Service Providers.

· As expected, none of the optional new exceptions to infringement which appeared in the Directive will be implemented in the UK, but there will be some amendments to the existing exceptions to ensure they are consistent with the Directive.

· The current exception to infringement for research and private study will be limited to “non-commercial research, and will also include a requirement that the original copyright work be acknowledged where practical. The “non-commercial research limitation will also be added to other existing exceptions, including copying in the course of giving instruction, recording of broadcasts, and reprographic copying by educational establishments.

· The current exception to infringement for criticism, review and news reporting will be limited to include only works which have been made available to the public, and will also include a requirement that the original copyright work be acknowledged where practical. These requirements will also be added to other existing exceptions.

· For copyright works other than computer software, there are new provisions to protect against the deliberate circumvention of “effective technological measures which have been put in place to protect a copyright work. “Effective technological measures include access controls or protection processes such as encryption, and copy control mechanisms. A range of new criminal offences will underpin these amendments.

· Electronic rights management information (that is, information identifying the work, the author or other right holder, or other information, numbers or codes including any terms and conditions of use of the work) will also be protected. A new civil remedy will give copyright owners or others issuing copyright works to the public a new civil remedy to prevent the alteration or removal of such information to enable or conceal a copyright infringement.

The consultation period ends on 31 October and implementation is due by 22 December 2002. It remains to be seen whether this target will be met.

For a copy of the Consultation Paper, please visit the Patent Office web site at: http://www.patent.gov.uk/about/consultations/eccopyright/index.htm

For further information please contact [email protected] or on 020 7367 3000 or Victoria Baker by email at [email protected] or by telephone on 020 7367 3451.