Generally copying may be stated as the taking of a substantial part (assessed by quality and quantity) of the skill and labour expended by the author in creating the work.

s.18(2) of the Act (as amended by the Copyright and Related Rights Regulations 1996) sets out two forms of infringement constituting issue to the public:

The act of putting into circulation in the European Economic Area (EEA) copies not previously put into circulation in the EEA by or with the consent of the copyright owner.This confers upon the copyright owner the right of first marketing anywhere in the EEA despite earlier authorised marketing outside the EEA.The act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere.This confers upon the copyright owner the right of first marketing anywhere else.

For there to be a primary infringement, the work must be issued to ‘the public’. A limited distribution to a small group of persons will not suffice for these purposes, although where the work is made generally available, e.g. via a website, the work is to be treated as having been issued to the public.

In the case of a literary, dramatic or musical work, the performance of the work in public is a restricted act. In the case of a sound recording, film or broadcast, the playing or showing of the work in public is a restricted act. These primary infringements are supplemented by secondary infringements relating to providers of premises and to suppliers of equipment facilitating primary infringement.

The term ‘perform’ includes delivering a lecture or address, and otherwise includes any mode of visual or acoustic presentation, whether be sound recording, film or broadcast. The phrase ‘in public’ has given rise to much litigation, and the general effect of the decisions is that anything other than a purely domestic performance of a work will be a performance in public.

The Restricted Act (s.16 (1) of the Copyright Design and Patents Act 1988 “the Act” as contained in The Copyright and Related Rights Regulations 1996 (SI 1996 No 2967)) of renting or lending a copyright work to the public applies to almost all copyright works (excludes works of architecture (buildings) or models of buildings and works of applied art), including films and sound recordings.

Rental applies to “making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect commercial advantage”. The most obvious type of rental most of you will be familiar with is the lending of DVDs and maybe videos through a rental outlet – such as Blockbuster. Outlets such as Blockbuster licence use of the DVDs for this commercial purpose and the licensing arrangement and the terms and conditions displayed before viewing on screen is likely to reflect this type of exploitation.

Lending applies to “making a copy of the work available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage , through an establishment which is accessible to the public.” The most likely familiar outlet for this purpose is the lending which takes place with the public from the public libraries. It does not contravene the terms of the lending right to charge, providing those charges do not go beyond what is necessary to cover the operating costs of the service.

Film Production and Producers

In the case of film production it is assumed that the rental right is transferred from authors (or prospective authors of literary, dramatic, musical or artistic works) to the film producer on conclusion of the production by virtue their work being included by agreement. However this does not automatically apply to the authors of screenplay, dialogue or music specially composed for the film.

Where the author of an artistic, dramatic, literary or musical work or principal director of a film transfers his or her rental right regarding a film or sound recording, he or she retains a right to equitable remuneration for the rental which may be assigned to a collection society only for the purposes of enforcing the rights. This remuneration is usually agreed between the parties, but may be fixed by the Copyright Tribunal if not agreed. In most instances this ‘equitable remuneration’ may form part of the pay structure negotiated as part of the overall agreement between the parties in relation to the film being produced.

The definition of ‘communication’ includes all forms of broadcasting, including by satellite and cable and also electronic transmission. With regard to electronic transmission, there is stated to be communication to the public where it is made available ‘ in such a way that members of the public may access it from a place and at a time individually chosen by them ’ (s.20(2) of the Act.

It is a primary infringement of the copyright in a literary, dramatic or musical work to make an adaptation of the work. In the case of a musical work, an adaptation is an arrangement or transcription of the work. In relation to a literary work (other than a computer program or database) or a dramatic work, an adaptation may be:

a translation of the work; the conversion of a dramatic work into a non-dramatic work, or a non-dramatic work into a dramatic work; or conversion of the work into a cartoon strip suitable for publication in a book, or in a newspaper, magazine or periodical.

Computer programs and databases are special cases and have their own specific definition of adaptation, see s.21(3)(ab) (computer software) and s.21(3)(ac) of the Act (databases).