April 4, 2016

Section 72 currently allows organisations that do not charge for admission to show television broadcasts without infringing the copyright in either the film or in the broadcast in which the film is incorporated.

In July 2015, the Government launched a consultation on changing s 72 as a result of the Court of Appeal decision in Football Association Premier League Ltd v QC Leisure [2012] EWCA Civ 1708, which found that s 72 does not clearly distinguish between the two types of film copyright set out at EU level.  EU law affords a higher level of protection to cinematographic aspects of film, versus fixation aspects, insofar as it restricts the types of copyright exception EU Member States can apply in relation to use of cinematographic works, but it is more permissive in the case of fixations.  Therefore, the Court of Appeal questioned the compatibility of s 72(1) with EU law.

In the consultation, the Government proposed:

i). clarifying that the exception in s 72(1) applies only to producers’ rights in film fixations, and not to creative (or “cinematographic”) aspects of film; and

ii). narrowing the scope of s 72 so that it cannot be relied on by commercial premises seeking to show exclusive subscription broadcasts in public without an appropriate commercial viewing licence.

Two further options were also considered:

• removing the reference to film completely from s 72 exception; and
• clarifying that the exception in s 72(1) applies only to producers’ rights in film fixations, and not to creative (or “cinematographic”) aspects of film, i.e. the first proposal set out above, but without narrowing the scope of the exception.

The majority of respondents to the 2015 consultation indicated that clarification on the scope of the s 72 exception was needed, but many considered the Government’s proposal as overly complicated and said that it would continue to cause confusion.

As a result, the Government is now proposing to address the issue by simply removing the reference to film completely from the s 72 exception.

The Government likes this proposal as it is simpler to implement, in that fewer changes are needed to the CDPA, and it offers improved clarity for both right holders and those showing/playing broadcasts.  The Government considers that it would create a level playing field for those premises that are authorised subscribers to commercial broadcasting services, by clearly establishing that right holders can take enforcement action for infringement of copyright against the minority of premises that use unauthorised systems to show subscription broadcasts.

The Government says that it would maintain the current exception in relation to the use of film contained in broadcasts for the purpose of demonstration or repair of equipment for the reception of broadcast.

The Government is now inviting further comment on the revised proposal as well as on the draft Regulations to implement the proposal.  The consultation closes on 20 April 2016.  To access the consultation and the draft Regulations, click here.