Post-implementation review of s.72 CDPA

 The government recently announced a post-implementation review of the changes made to s.72 five years ago.

S.72 creates what the government (though the IPO) tells us is "an exception to copyright infringement" though I insist (especially to students) that it is a permitted act. If the legislation uses that terminology, why should we call it something different? It has the effect of an exception to copyright infringement, but calling it by that name is sloppy.

Anyway, that section (should you need a reminder) permits free showing of a broadcast, and certain copyright elements that go with it (because a broadcast has to be of something: in modern terminology, which I also find objectionable because it devalues the work of creative individuals, "content"), and applies only in places where the public has free access, which may include retailers, hospitality, community spaces, gyms, voluntary centres, hospitals, charities, and some workplaces.

The Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 amended s.72 by removing “film” from the list of exceptions. That's a small change, but a dramatic one, akin to adding the word "not" to a sentence. 

The change was a response to a series of judgments of what the IPO calls the Court of Justice of the European Union, or CJEU, which is not entirely incorrect but unforgiveably sloppy: the CJEU is the judicial institution of the EU, comprising two tribunals (the Civil Service Tribunal having been merged into the General Court in 2016). The Court of Justice is one of those tribunals, which is daft and highly confusing but it should be capable of being understood by a moderately intelligent person, and certainly by a lawyer. Anyway, if you want to revisit it, the original consultation is here along with a further consultation (when the government changed its mind a bit) and the government response.

The bit that the government changed its mind about involved what I think is probably the most interesting aspect of the whole exercise, the distinction (which EU law makes) between the cinematographic element of a film and the fixation aspects. It's not a distinction that our copyright law has ever made, as the Court of Appeal found in Football Association Premier League Ltd v QC Leisure & Ors [2012] EWCA Civ 1708 (20 December 2012), so basically the government agreed with a number of reespondents that the best thing to do would be to take out the word "films" altogether.

At the heart of the matter lies the showing of broadcasts of football matches in public houses, and clearly this was something that FAPL wanted to be controllable by the copyright owner. At first glance this seems a heavy-handed approach, because there will surely be collateral damage: all manner of broadcast films will be removed from the scope of the permitted act. But the get-out-of-jail free card here seems to be that this content is already covered, to a large extent if not completely, by collective licensing arrangements.

There is a lot more to this consultation than I have had time to mention here, but it is a specialised area and I don't propose to comment in great detail. I have nothing to say to the government in response to their questions: I cannot give them any evidence to help the consultation, so I'll just draw readers' attention to it, provide links to assist with further research, and move on to something else.