
Copyright, Designs and Patents Act 1988

The Copyright, Designs and Patents Act 1988 (c 48), also known as the CDPA, is an Act of the Parliament of the United Kingdom that received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law (including performing rights) in the United Kingdom, which had, until then, been governed by the Copyright Act 1956 (c. 74). It also creates an unregistered design right, and contains a number of modifications to the law of the United Kingdom on Registered Designs and patents.
Essentially, the 1988 Act and amendment establishes that copyright in most works lasts until 70 years after the death of the creator if known, otherwise 70 years after the work was created or published (50 years for computer-generated works).
In order for a creation to be protected by copyright it must fall within one of the following categories of work: literary work, dramatic work, musical work, artistic work, films, sound recordings, broadcasts, and typographical arrangement of published editions.
The Act.
Part 1 of the Act "restates and amends" (s. 172) the statutory basis for United Kingdom copyright law, 
although the Copyright Acts of 1911 (c. 46) and 1956 (c. 74) continue to have some effect in limited circumstances under ss. 170 & 171 and Schedule 1. It brings United Kingdom law into line with the Berne Convention for the Protection of Literary and Artistic Works, which the UK signed more than one hundred years previously, and allowed the ratification of the Paris Act of 1971.
Territorial application.
Part I of the Act (copyright provisions) extends to the whole of the United Kingdom (s. 157); amendments by Order in Council extended the Act to Bermuda and Gibraltar. Works originating (by publication or nationality/domicile of the author) in the Isle of Man or the following former dependent territories qualify for copyright under the Act: Antigua, Dominica, Gambia, Grenada, Guyana, Jamaica, Kiribati, Lesotho, St. Christopher-Nevis, St. Lucia, Swaziland and Tuvalu. All other countries of origin whose works qualified for United Kingdom copyright under the UK Copyright Act 1911, also known as the Imperial Copyright Act of 1911, or the 1956 Acts continue to qualify under this Act (para. 4(3) of Schedule 1).
Works subject to copyright.
The Act simplifies the different categories of work which are protected by copyright, eliminating the specific treatment of engravings and photographs.
The following works are exempted from copyright by the transitional provisions of Schedule 1:
The Act as it received Royal Assent does not substantially change the qualification requirements of the author or the country of origin of the work, which are restated as ss. 153–156: these have since been largely modified, in particular by the Duration of Copyright and Related Rights Regulations 1995 No. 3297.
There is a subtle additional requirement a work must satisfy in order to be copyrightable. Section 3(2) of the CDPA 1988 states that copyright does not subsist in a literary, dramatic or musical work until it is recorded in writing or otherwise. This act of recording a work in any form is called ' fixation'. For example, taking a photograph of a sculpture or artwork fixates the work retrospectively from the moment the work was previously created by the artist. In practice this requirement sets a low bar for works seeking copyright protection — For example, the act of painting a picture automatically fixates the work as the artist is physically recording his brush strokes on the canvas.
Rights in performances.
Part II of the Act creates a series of performers' rights in application of the 
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961. These rights are retrospective in respect of performances before commencement on 1 August 1989 (s. 180). These rights have been largely extended by the transposition of European Union directives and by the application of the WIPO Performances and Phonograms Treaty: the section below describes only the rights which were created by the Copyright, Designs and Patents Act 1988 itself.
A performer has the exclusive right to authorise the recording and/or broadcast of his performances (s. 182). The use or broadcast of recordings without the performer's consent (s. 183) and the import or distribution of illicit recordings (s. 184) are also infringements of the performer's rights. A person having an exclusive recording contract over one or more performances of an artist holds equivalent rights to the performer himself (ss. 185–188). Schedule 2 lists the permitted acts (limitations) in relation to these rights.
Rights in performances last for fifty years from the end of the year in which the performance was given (s. 191). They may not be assigned or transferred, and pass to the performer's executors on death (s. 192). An infringement of rights in performances is actionable under the tort of breach of statutory duty. Orders are available for the delivery up (Scots law: delivery) and disposal of infringing copies (ss. 195, 204): holders in rights in performances may also seize such copies (s. 196). The making, dealing in or use of infringing copies is a criminal offense (s. 198), as is the false representation of authority to give consent (s. 201).
Duration of copyright.
The provisions on duration have been largely modified by the Duration of Copyright and Related Rights Regulations 1995 No. 3297. The provisions of the 1988 Act (ss. 12–15) as it received Royal Assent are given below. All periods of copyright run until the end of the calendar year in which they would otherwise expire. The duration of copyright under the 1988 Act does not depend on the initial owner of the copyright, nor on the country of origin of the work. The following durations do not apply to Crown copyright, Parliamentary copyright or the copyright of international organisations.
Transitional provisions.
These provisions apply to works existing on 1 August 1989, other than those covered by Crown copyright or Parliamentary copyright (paras. 12 & 13 of Schedule 1).
The duration of copyright in the following types of work continued to be governed by the 1956 Act:
— however these transitional provisions were largely cancelled by the 1995 Regulations, which in many cases caused lapsed UK copyrights to be revived.
Copyright in the following types of work lasts until 31 December 2039:
Mass-produced artistic works.
Artistic works that are mass-produced by an industrial process suffer from a downgrading of their copyright term from the life of the creator plus 70 to 25 years as a result of the provisions of section 52 of the Copyright, Designs and Patents Act 1988. The Enterprise and Regulatory Reform Bill was introduced into Parliament on 23 May 2012 and is likely to become law in late 2012 or early 2013. If section 56(2) of the Bill is enacted then artistic works that are mass-produced by the copyright holder will benefit from the same period of protection as those not replicated in large numbers. The result will be a significant extension from 25 years to that of the life of the creator plus 70 years. The proposed change is a reaction to pressure from the international furniture industry supported by manufacturers of decorative arts: copyright holders of many famous and much copied 20th century furniture design classics such as the Egg Chair and Barcelona Daybed hope that long expired copyright periods will be revived allowing for a further period of commercial exploitation. Some legal commentators have doubted whether the legislation will have the desired effect. They contend that many mass-produced items of 20th-century industrial furniture may not be defined by the courts of the United Kingdom as works of artistic craftsmanship but as mere designs. A design that is not an artistic work attracts no copyright protection under the 1988 Act.
Peter Pan.
Section 301 and Schedule 6 contain an unusual grant of the right to royalties in perpetuity, proposed by Jim Callaghan, enabling Great Ormond Street Hospital for Children to continue to receive royalties for performances and adaptations, publications and broadcast of "Peter Pan" whose author, J. M. Barrie, had given his copyright to the hospital in 1929, later confirmed in his will. Although often incorrectly referred to as a perpetual copyright, it does not confer Great Ormond Street Hospital full intellectual property rights over the work. The amendment was proposed when Peter Pan's copyright first expired on 31 December 1987, 50 years after Barrie's death, which was the copyright term at that time. Following EU legislation extending the term to author's life + 70 years, Peter Pan's copyright was revived in 1996 and expired on 31 December 2007 in the UK, where Great Ormond Street Hospital's right to remuneration in perpetuity now prevails.
Fair dealing defences and permitted acts.
Chapter III of Part I of the Act provides for a number of situations where copying or use of a work will not be deemed to infringe the copyright, in effect limitations on the rights of copyright holders. The existing common law defences to copyright infringement, notably fair dealing and the public interest defence, are not affected (s. 171), although many of the statutory permitted acts would also qualify under one of the common law defences: the defence of statutory authority is specifically maintained in section 50. This chapter of the Act has been substantially modified, notably by the Copyright and Related Rights Regulations 2003 No. 2498 transposing the EU Information Society Directive: the description below is of the Act as it received Royal Assent.
Fair dealing defences.
The following are also permitted acts (the list is not exhaustive):
Educational use.
In general, limited copying for educational use (including examination) is permitted so long as it is 'fair dealing' and is performed by the person giving or receiving instruction (s. 32) or by the education establishment in the case of a broadcast (s. 35): however, reprographic copying of published editions is only permitted within the limit of 5% of the work per year (s. 36). Works may be performed in educational establishments without infringing copyright, provided that no members of the public are present (s. 34): the parents of pupils are considered members of the public unless they have some other connection with the establishment there are different things too.(e.g., by being teachers or governors). Further provisions are contained in secondary legislation.
Libraries and archives.
Librarians may make and supply single copies of an article or of a reasonable proportion of a literary, artistic or musical work to individuals who request them for the purposes of private study or research (ss. 38–40); copying of the entire work is possible if it is unpublished and the author has not prohibited copying (s.–43). They may also make and supply copies to other libraries (s. 41) and make copies of works in their possession where it is not reasonably possible to purchase further copies (s. 42). The detailed conditions for making copies are contained in secondary legislation, currently the Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989 No. 1212.
Public administration.
Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purposes of a Royal Commission or statutory inquiry (ss. 45, 46). The Crown may make copies of works which are submitted to it for official purposes (s. 48). Material which is open to public inspection or on an official register may be copied under certain conditions: this includes material made open to public inspection by the European Patent Office and by the World Intellectual Property Organization under the Patent Cooperation Treaty, and material held as public records under the Public Records Act 1958 c. 51 or similar legislation (s. 49).
Moral rights.
The Act creates a specific regime of moral rights for the first time in the United Kingdom: previously, an author's moral right had to be enforced through other torts, e.g. defamation, passing off, malicious falsehood. The author's moral rights are:
The moral rights of an author cannot be transferred to another person (s. 94) and pass to his heirs on his death (s. 95): however, they may be waived by consent (s. 87). The right to object to false attribution of work last for twenty years after a person death, the other moral rights last for the same period as the other copyright rights in the work (s. 86).
There are some narrow exceptions to moral rights claims. For example, s79 states that the right to be named as author does not apply in relation to computer programs, design of a typeface, or any other computer generated work. Additionally, the right to object to any derogatory treatment, does not apply to computer programmes, works made for the reporting of current events, newspaper publications, collective works of reference (s81).
Once someone has successfully claimed their moral rights to be infringed they have the right to a remedy. As moral rights are non-economic in nature damages would be for non-economic loss e.g. a remedy imposed by the court may require the defendant to issue a disclaimer dissociating the author from any derogatory treatment of the work in question.
Crown and Parliamentary copyrights.
The Act simplifies the regime of Crown copyright, that is the copyright in works of the United Kingdom government, and abolishes the perpetual Crown copyright in unpublished works of the Crown. It also creates the separate concept of Parliamentary copyright for the works of the Parliament of the United Kingdom and the Scottish Parliament, and applies similar rules to the copyrights of certain international organisations.
Crown copyright last for fifty years after publication, or 125 years after creation for unpublished works (s. 163): however, no unpublished works of the Crown will come into the public domain until 31 December 2039, that is fifty years after the commencement of section 163. Acts of the United Kingdom and Scottish Parliaments and Church of England Measures are protected by Crown copyright for fifty years from Royal Assent (s. 164). Works of the Parliaments of the United Kingdom and of Scotland, except Bills and Acts, are protected by Parliamentary copyright for fifty years after creation: Bills are protected from the date of their introduction to the date of Royal Assent or of rejection (ss. 165–167, Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676). The works of the United Nations and its specialised agencies and of the Organisation of American States are protected for fifty years after creation (s. 168, Copyright (International Organisations) Order 1989 No. 989).
Enforcement of copyright.
Infringement of copyright is actionable by the copyright owner as the infringement of a property right (s. 96) or, in the case of infringement of moral rights, as the tort of breach of statutory duty (s. 103). Damages will not be awarded against an "innocent" defendant, i.e. one who did not know and had no reason to know that the work was under copyright, but other remedies (e.g. injunction, account of profits: Scots law interdict, accounting and payment of profits) continue to be available (s. 97, see "Microsoft v Plato Technology"). Orders are available for the delivery up (Scots law: delivery) and disposal of infringing copies (ss. 99, 114): copyright owners may also seize such copies (s. 100). The making, dealing in or use of infringing copies is a criminal offence (s. 107). Copyright owners may ask the HM Revenue and Customs to treat infringing copies as "prohibited goods", in which case they are prohibited from import (s. 111). Section 297 of the Act makes it an offense to fraudulently receive broadcasts for which a payment is required. Section 300 creates the offense of fraudulently using a trademark, inserted as ss. 58A–58D of the Trade Marks Act 1938 c. 22.
Infringement of performers' rights.
The Copyright and Related Rights Regulations 2003 amended the CDPA to provide an additional right of performers to require consent before making copies of their performances available to the public by electronic transmission.
Secondary infringement.
The Act codifies the principle of secondary infringement, that is knowingly enabling or assisting in the infringement of copyright, which had previously been applied at common law (see "R v Kyslant"). Secondary infringement covers:
Liability for secondary infringement is dependant on the defendant knowing or having reason to believe, that the activities in question are wrongful. This question of requites knowledge is determined objectivity. 
Criminal offences.
Copyright infringement that may be criminal offences under the Copyright, Designs and Patents Act 1988 are the:
The penalties for these copyright infringement offences may include:
Copyright Tribunal.
The Act establishes the Copyright Tribunal as a continuation of the tribunal established under s. 23 of the 1956 Act (s. 145). The Tribunal is empowered (s. 149) to hear and determine proceedings concerning: 
An appeal on any point of law lies to the High Court, or to the Court of Session under Scots law.
Design right.
Part III of the Act creates a "design right" separate from the registration of designs governed by the Registered Designs Act 1949. To qualify, the design must be original (not commonplace in the field in question) and not fall into one of the excluded categories (s. 213(3)):
The design must be recorded in a document after 1989-08-01 (s. 213(6)): designs recorded or used before that date do "not" qualify (s. 213(7)).
The design right lasts for fifteen years after the design is recorded in a document, or for ten years if articles have been made available for sale (s. 216).
Designs and typefaces.
The copyright in a design document is not infringed by making or using articles to that design, unless the design is an artistic work or a typeface (s. 51). If an artistic work has been exploited with permission for the design by making articles by an industrial process and marketing them, the work may be copied by making or using articles of any description after the end of a period of twenty-five years from the end of the calendar year when such articles were first marketed (s. 52). It is not an infringement of the copyright in a typeface to use it in the ordinary course of printing or to use the material produced by such printing (s. 54).
Registered designs.
Part IV of the Act contains a certain number of amendments to the Registered Designs Act 1949 c. 88. The criteria for registration of a design and the duration of the registered design right (ss. 1 & 8 of the 1949 Act) are notably modified. Provisions are also added to allow ministers to take action to protect the public interest in monopoly situations (s. 11A of the 1949 Act) and to provide for compensation for Crown use of registered designs (para. 2A to Schedule 1 to the 1949 Act). A consolidated version of the Registered Designs Act 1949 is included (s. 273, Schedule 4).
Patents and trademarks.
Part V of the act provides for the registration of patent agents and trade mark agents and for the
privilege of their communications with clients from disclosure in court. Part VI of the act creates a system of patents county courts for proceedings involving patents which are of a lesser financial implication.
Commencement.
There are numerous commencement dates for the different sections of the Act, detailed below. The provisions on copyright, rights in performances and design right came into force on 1 August 1989, while the registration of patent agents and trade mark agents came into force on 13 August 1990.
The Copyright, Designs and Patents Act 1988 (Commencement No. 2) and (Commencement No. 3) Orders 1989 are technical measures to allow the preparation of secondary legislation.
Modifications.
Transposition of European Union directives.
The following regulations were made under the European Communities Act 1972 in order to implement European Union directives in UK law.
Also: