So, the waiting is over. On 27 September theCopyright and Related Rights Regulations 2003(No. 2498) were laid before Parliament, cominginto force on 31 October. Their purpose, ofcourse, is to implement EC Directive 2001/29/EC 1

(the Information Society Directive) which itselfcame into force on 22 June 2001. This is the latestin a line of directives from the EU intended toharmonise rules on intellectual property “relevantto the global challenge of digital technology” –digitalisation, digital compression andimprovements to bandwidth.2 Essentially, itspurpose is to implement the Copyright Treaty andPerformances and Phonograms Treaty adopted bythe World Intellectual Property Organisation(WIPO) in 1996 to combat online infringementand to catch up with the United States - whichadopted the treaties, via the Digital MillenniumCopyright Act (DMCA), as long ago as 1998.

Specifically, the Directive deals with the rightsof originators of copyright material to control theelectronic reproduction and dissemination of theirworks, including digital broadcasting and servicesavailable to consumers “on demand”. It alsoidentifies exceptions to those rights designed toensure that browsers can make temporary copiesof works for caching purposes (thereby reducinglatency and bandwidth traffic). Further optionalexemptions are provided for specific purposes andcategories of user where the activity is essentiallynon-commercial and designed to facilitate publicaccess, freedom of the press or scientific research.Member States are also required to ensure thatlegal measures are in place to guard againstcircumvention of technological measures put inplace to protect works from illegal use, includingalteration of digital marks used by rights holdersto trace the distribution of their works. Finally,new sanctions are remedies are provided.

The new UK Regulations will be grafted on tothe existing statutory regime largely contained inthe Copyright Designs and Patents Act 1988. Thisstatute has been amended on previous occasions toaccommodate harmonisation within the EU onintellectual property. The new measures aretherefore being introduced as “adjustments” ratherthan new platforms of law, hence the adoption bysecondary legislation. Nevertheless, mindful of thesignificance of these changes, the Patent Office has

Computer Law & Security Report Vol. 19 no. 2 2003 ISSN 0267 3649/03 © 2003 Elsevier Science Ltd. All rights reserved

Editorial

New copyright regulations make their debutStephen Saxby

It is going to be

some time before

a measured

judgement

becomes possible

as to whether the

Government has

struck the right

balance

443

been cautious in its move towards compliance withthe Directive. In August 2002 a ConsultationPaper3 was published to which more than 300responses were submitted. Accordingly, thedeadline for implementation imposed by theDirective – 22 December 2002 – was missed. Theconclusion reached from this exercise was that theDirective “concerned matters on which there arestrongly diverging views and interests”. It was notgoing to be possible to “find solutions which willsatisfy everyone completely”.

Well, it is clear that, despite the tone of itspresentation, substantive matters of importanceare involved here. All kinds of issues arise once itis proposed both to define and regulate the rightsand entitlements of creators and users of works inthe digital environment. One can only note, as anexample of the kinds of issues now arising, therecent legal action commenced by the RecordingIndustry Association of America (RIAA) againstpotentially thousands of “offenders” accused ofthe illegal distribution of music files on peer-to-peer networks. Some groups are also worried thatthe delicate balance of rights and exceptionscarved out in the pre-digital environment will tilttoo heavily in one or other direction to thedetriment of rightholders or users.

What is clear is that implementation will notlead to similarity of regulation within the MemberStates. It is right I think to give the latter a degreeof choice as to how they will implement the basicprinciples of the Directive, for example, widerexceptions for private use of works in return for alevy on recording equipment. However, it is goingto be some time before the mist clears and ameasured judgement becomes possible as towhether the Government has struck the rightbalance. Given the high stakes involved there willbe a lot of interest on just this point.

FOOTNOTES

1 EC Directive 2001/29/EC on the harmonisation ofcertain aspects of copyright and related rights in theinformation society.2 91/250/EEC; 92/100/EEC; 93/83/EEC; 93/98/EEC; and96/9/EC.3 Consultation Paper on implementation of the directivein the United Kingdom (Copyright Directorate, ThePatent Office, August 2002).