Film theft in the UK - Future of Copyright

(Legal measures to improve enforcement at
occasional markets are discussed further below
under the Enforcement section.)
There is also the implementation of the EU
Copyright Directive into UK law on 31 October
2003 (see below), which has brought with it a
tightening up of existing legislation; amending
existing provisions on circumvention of copyprotection,
giving much enhanced protection
for right holders, and clarifying the relationship
between exceptions and technological
measures in situations considered to be ‘fair
dealing’.
Limitations on when copying is not infringing
have been fairly robust. For example, the
existing exception for time-shifting (home
recording) in section 70 of the Copyright
Designs and Patents Act 1988 is tightened by a
requirement that the copy be made “in
domestic premises”. Such a copy may not be
sold, hired out, offered or exposed for sale or
communicated to the public. This means that
copies of films and programmes recorded for
later viewing cannot be used for other
purposes. Similarly, the taking of a photograph
of a broadcast work from the television screen
for private and domestic use remains excepted
from liability, but the photograph must be
taken in domestic premises and may not
subsequently be dealt with for commercial
purposes.
However, there are areas still open to debate –
raising serious issues of consumer rights: such
as, should there be a right to create personal
‘back-up’ copies from legitimately purchased
DVDs? As the law now stands, it is a criminal
offence to make home copies of any copyprotected
work. To this end, in December
2003, Warner Home Video UK filed a civil
action for an injunction against US-based 321
Studios in the High Court, under the new 2003
Regulations. Warner alleged that 321 Studios,
which sells software enabling DVD back-ups to
be made (called ‘DVD-X Copy’), circumvents
DVD copy-protection and is not ‘fair dealing’.
The response from 321 Studios was a claim
that consumers are fed up with buying digital
products, such as CDs and DVDs, which are not
always as robust as the industry claims. Hence,
according to the company there was a
legitimate consumer need to back up copies.
In early August 2004, 321 Studios ceased
operations apparently as a result of financial
pressures brought on by various lawsuits.
The following week, the MPAA announced the
successful resolution of the litigation that
began over two years ago. In a private
settlement with the motion picture companies,
321 Studios and its founders agreed to cease
selling its DVD copying software on a
worldwide basis. Rejecting the ‘fair use’
argument, the Courts decided that 321’s
product enables circumvention of the copy
protection technology included in DVDs and
any such circumvention contravenes section
1201 of the Digital Millennium Copyright Act 40 .
A continuing area of concern is that of
damages, and the judiciary’s attitude towards
the severity of copyright theft. Though the
penalty for copyright infringement is now a
maximum of ten years’ imprisonment, some
question whether the judiciary is actually
applying this. Anecdotal evidence suggests that
the majority of infringements go largely underpunished,
41 although recent cases have resulted
in fines of £180,000 and three years’
imprisonment.
A clear shortcoming in the UK legal framework
is the absence of exemplary damages in
infringement cases. These are ‘punitive’
damages requested and/or awarded where the
defendant’s wilful acts were malicious, violent,
oppressive, fraudulent, wanton or grossly
reckless, and are awarded not only as a
punishment, but to set an example to the
public.
Section 97(2) of the CDPA permits the court to
award “additional damages” in cases where
the defendant has behaved particularly badly or
Film theft in the UK | 31