Consultation outcome

Post implementation review of The Copyright (free public showing or playing) (Amendment) Regulations 2016 – Call for views

Updated 15 February 2022

Introduction

The Secretary of State must conduct a review of Regulations, within 5 years of their coming into force, and publish a report outlining its conclusions. This is standard practice for UK legislation. The report must, in particular:

assess the extent to which the Regulations’ objectives have been achieved;”

assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

Background and overview of the Regulations

The Copyright, Designs and Patents Act 1988 (CDPA) grants copyright owners a range of rights allowing them to control the protected uses of their works. Those wishing to use protected works must normally seek the permission of copyright owners, which is often granted as a licence for a fee. Among these rights are the rights to control the showing, playing and other communication of works to the public.

Section 72 sets out a limited number of exceptions to these rights. These exceptions apply to organisations which do not charge for admission. It allows such organisations to show television broadcasts without needing permission from some of the owners of copyright in those broadcasts. The Copyright (free public showing or playing) (Amendment) Regulations 2016 amended the provisions of Section 72. Previously organisations which did not charge for admission did not need permission from the owners of “film” copyright. A “film”, as defined in copyright law, is any recording from which a moving image may be produced. This definition includes all audiovisual recordings, not only films made to be shown in cinemas.

The Copyright (free public showing or playing) (Amendment) Regulations 2016 came into force on 15 June 2016. The legislation removed “film” from a list of exceptions. This list of exceptions allowed premises that don’t charge for public access (e.g. pubs) to show television broadcasts without the permission of certain copyright owners.

This legislation was made following a series of court judgments including a reference to the Court of Justice of the European Union (CJEU). These obliged the UK to amend Section 72 and ensure it was consistent with European Union (EU) law. In 2015 the government consulted on various proposed amendments to Section 72. These sought to provide a balance between the interests of copyright owners and users.

The consultation focussed on the following preferred option:

a) Clarifying that the exception in Section 72(1) applied only to producers’ rights in film fixations, and not to creative (or “cinematographic”) aspects of film; and

b) Narrowing the scope of Section 72 so that it could not be relied on by commercial premises seeking to show exclusive subscription broadcasts in public without an appropriate commercial viewing licence.

Two additional options were considered by the government when preparing to consult in this area:

• removing the reference to film completely from the Section 72 exception; and
• clarifying that Section 72 only applied to the film fixation right, without the additional amendments to the scope of the exception as outlined in point B above

Many respondents to this first consultation agreed with the need for change in this area. However, concerns were raised about the preferred option and the possible impact it might have on the wider licensing framework. A number of respondents highlighted that removing film completely from the Section 72 exception would be the most straightforward option.

Following concerns raised by respondents to this consultation, the Intellectual Property Office (IPO) published a further consultation and technical review on changes to Section 72. This was released in (early) 2016 and focussed solely on removing the reference to film from Section 72. All the responses to the second consultation and technical review supported this policy option.

The government response listed a number of anticipated benefits to this option, including:

• bringing greater clarity to the law;
• avoiding the need for complex changes to the rest of the Copyright, Designs and Patents Act;
• enabling rightsholders to bring enforcement action more easily;
• creating a more level playing field for those pubs and other organisations that take out legitimate television subscriptions

The government published a summary of stakeholder responses to this further review in 2016. All documents relating to the previous consultations on Section 72 can be found Section 72 Copyright, Designs and Patents Act 1988 (CDPA).

Post implementation review of The Copyright (free public showing or playing) (Amendment) Regulations 2016

The purpose of this questionnaire is to seek written evidence to inform our review of the Regulations. The questions below are intended to help structure responses. We would strongly encourage interested stakeholders to submit any additional evidence they feel is relevant to this review. This includes relevant evidence that may not correspond to any particular question. When detailing costs and benefits, please clarify if these are annual, for the duration that the policy has been in place or some other time period.

We would strongly encourage written evidence from all interested parties. Please send any such evidence to [email protected]

The IPO will review the information submitted to provide evidence for the Copyright (free public showing or playing) (Amendment) Regulations 2016 Post Implementation Review. The IPO intends to publish individual responses and a summary of the responses to this Call for Views.

Confidentiality and Data Protection

Information provided in response to this consultation, including personal information, may be subject to publication or release to other parties or to disclosure. This is in accordance with the access to information regimes. These regimes are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 2018 (DPA) and the Environmental Information Regulations 2004.

If you want information, including personal data that you provide to us, to be treated as confidential, the following is important to note: under the FOIA, there is a statutory code of practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.

In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of information we will take full account of your explanation. However, we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, in itself, be binding on the department.

Questions

The remainder of this document sets out questions about the regulations. If you have answers to these questions - or any more general evidence on the impact of the changes to Section 72 – we encourage you to submit these.

General Questions

1. In your view, to what extent have the changes to Section 72 achieved their original objectives?
   
   
2. Do you think that the changes to Section 72 remain appropriate?
   
   Could the same objectives be met through other, more efficient, means?
   
   
3. Now that the UK has left the EU, do you believe the Regulations remain relevant and necessary?
   
   
4. Overall, do you consider that the Regulations have benefitted your business, organisation or your members? Please provide details.
   
   
5. Have the Regulations led to any consequences that you did not anticipate? Please provide details.

Detailed Questions

Questions for copyright users

1. What was your original estimate of the annual licensing costs when the Regulations came into force? How does this compare to the actual costs you incurred?
   
   
2. What other costs, if any, have you incurred as a result of the change to Section 72?
   
   
3. What benefits, if any, have you accrued as a result of the change to Section 72?
   
   
4. Since the introduction of the Regulations has the nature or degree of competition between commercial premises that choose to show broadcasts changed? And if so, how?
   
   
5. If you have experienced higher costs, have you been able to absorb these? If so, how have you done so, (e.g. any impacts on your supply chain/cost to customers)?

Questions for right holders

1. Has the amendment to Section 72 made any difference to your ability to protect your work? Does it continue to do so? Please provide details and supporting evidence.
   
   
2. Have the changes led to increases in revenue as a result of increased licensing? If so, how does this compare with any increases to revenue that you may have anticipated?
   
   
3. Has the amendment changed the extent to which you need to monitor and enforce your rights?
   
   
4. What was your original estimate of benefits (financial or otherwise) when the Regulations came into force? How does this compare with the actual benefits you accrued?

Questions for licensors (including collecting societies)

1. Have the changes led to increases in revenue for your members as a result of increased licensing? How does this compare with any increases to revenues that you may have anticipated as a result of the change to Section 72?
   
   
2. Has licensing activity changed since the Regulations came into force? If so, to what extent (i.e. volumes, prices, content type)? Please provide details and any supporting evidence.
   
   
3. What was your original estimate of benefits (financial or otherwise) when the Regulations came into force? How does this compare with the actual benefits you accrued?