BECTU response to EC consultation on the Copyright Directive

Response to consultation paper Copyright and the Information Society on the implementation of EC Copyright Directive 2001/29/EC - see the UK Patent Office website.

Introduction

1. BECTU is a trade union with members working in the film, broadcasting and live entertainment sectors. Whilst some BECTU members are employed, many operate as freelance individuals and the majority work from small or medium sized enterprises.

2. BECTU supports the submission made by the British Copyright Council, of which it is a member. We also support those made by other members of the Federation of Media Unions, particularly those made by Equity and the Musicians' Union on behalf of their members and we look forward to hearing that the UK has introduced moral rights for performers in line with the 1996 WIPO World Performances and Phonograms Treaty.

3. Along with other copyright interests, BECTU supports the view that a consolidated version of CDPA 1988 is now overdue and urgently needed.

4. Overall, BECTU welcomes the Government's approach to implementation and we limit our comments to those areas of most direct interest to our members.

These are:

• Article 3 - Right of communication to the public and right of making available to the public;
• Article 5 - Exceptions and limitations;
• Article 8 - Sanctions and remedies

Comment

5. Article 3 (right of communication to the public and making available to the public)

5.1 Whilst we support the Government's approach to implementation of this Article, we have some concerns about the definition of 'broadcast' and about where the making available takes place.

5.2 The definition of 'broadcast' should be technology-neutral to ensure it adequately covers all present forms of dissemination. We share concerns with other rights owners that certain activities, such as video/audio on demand may not be adequately covered by new Section 6.(1A).

It is essential that the definitions of 'broadcasting' and 'on demand or other interactive service' are transparent and unambiguous, if our members are to use them everyday in their contractual arrangements.

5.3 We are concerned that neither Article 3 of the Directive nor the proposed amendments to the Act specify where the making available to the public takes place. We believe that the wording adopted should be sufficiently open to ensure that all possibilities are covered, whether this is at the point where material is put onto the Internet or where access occurs.

We support the British Copyright Council's view that the freedom of individual European Member States to interpret communication to the public could lead to differences in implementation and we support the British Government in working towards a harmonised approach to this issue at European Union level.

6. Article 5 (exceptions and limitations)

6.1 'for reasons of practicality or otherwise'

We do not feel that the introduction of the above wording in Sections 29, 30, 32 and 36 CDPA 1988 is either necessary or appropriate. Whilst we understand concerns expressed by users about the difficulties of providing 'sufficient acknowledgement' in certain circumstances, we feel that the word 'impossible' is sufficient. Of greatest concern to us are the words 'or otherwise' which leave the requirement for sufficient acknowledgement open to misunderstanding or abuse. This is a matter of particular concern to those who produce copyright protected work to the broadcasting and film industries. We believe that the wording used should be that of the Directive.

6.2 'research for a non-commercial purpose'

'Research' should be qualified by the word 'scientific' as in the Directive. Also, we do not accept that private study is inherently non-commercial and prefer the phrase 'private and non-commercial'.

6.3 Things done for the purpose of instruction or examination (S.32 CDPA 1988)

The wording of new (2A) of Section 32 should include the phrase 'for the sole purpose of illustration', if the Government is to achieve its objective, which is for this to remain an exception which is narrow in its scope.

We are concerned that the proposed wording for Section 32(2A) could easily be misunderstood or misinterpreted by educational establishments acting for a commercial purpose and believe it should be clearer that it is the non-commercial nature purpose, rather than the status of the institution, to which the exception applies.

6.4 Recording by educational establishments of broadcasts and cable programmes (S.35 CDPA 1988)

Individual BECTU members currently benefit from the ERA licensing scheme through collecting societies such as ALCS and DACS. We welcome the proposed amendment but do have some concerns about possible onward use of material recorded under this section. We believe that clarification is required, by an amendment to s.35(3) CDPA 1988 to ensure that 'dealing with' such material by educational establishments also covers on-line use.

6.5 Berne 3-Step

We share the view with other rights owners that in the interests of transparency the wording of the Berne 3-Step Test should be incorporated directly into CDPA 1988.

6.6 Recording for purposes of time-shifting (S.70 CDPA 1988)

Along with other rights owners we are opposed to the continuance of the exception for time-shifting and, at the very least, would appreciate an assurance from the Government that S.70 CDPA 1988 will be limited solely to analogue activities.

6.7 Free public showing or playing of broadcast or cable programme (S.72 CDPA 1988)

We oppose the continuance of this exception.

7. Sanctions and Remedies

7.1 We believe that the Government should provide criminal sanctions for those commercial activities which remove rights management information as well as for those protecting technological measures.

7.2 We also believe that the Government should consider extending existing secondary infringement provisions to cover on-line rights.

7.2 We understand that Article 8.3 entitles rights owners, in certain circumstances to obtain injunctions for infringement or for threatened infringement. We seek the Government's assurance that this will form part of the provisions.