APPENDIX: LIST OF LEGISLATION WHICH HAS AMENDED THE COPYRIGHT, DESIGNS AND PATENTS ACT 1988 (AS AT 13 OCTOBER 2014)
The Broadcasting Act 1990
The Courts and Legal Services Act 1990
The National Health Service and Community Care Act 1990
The Health and Personal Social Services (Northern Ireland) Order 1991, SI 1991/194
The High Court and County Courts Jurisdiction Order 1991, SI 1991/724
The Copyright (Computer Programs) Regulations 1992, SI 1992/3233
The Charities Act 1993
The Judicial Pensions and Retirement Act 1993
The Criminal Justice and Public Order Act 1994
The Criminal Justice (Northern Ireland) Order 1994, SI 1994/2795
The Trade Marks Act 1994
The Copyright (EC Measures Relating to Pirated Goods and Abolition of Restrictions on the Import of Goods) Regulations 1995, SI 1995/1445
The Criminal Justice (Scotland) Act 1995
The Criminal Procedure (Consequential Provisions) (Scotland) Act 1995
The Duration of Copyright and Rights in Performances Regulations 1995, SI 1995/3297
The Merchant Shipping Act 1995
The Olympic Symbol etc. (Protection) Act 1995
The Arbitration Act 1996
The Broadcasting Act 1996
The Education Act 1996
The Copyright and Related Rights Regulations 1996, SI 1996/2967
The National Health Service (Primary Care) Act 1997
The Copyright and Rights in Databases Regulations 1997, SI 1997/3032
The Competition Act 1998
The Government of Wales Act 1998
The Northern Ireland (Elections) Act 1998
The Northern Ireland Act 1998
The Scotland Act 1998
The Competition Act 1998 (Competition Commission) Transitional, Consequential and Supplemental Provisions Order 1999, SI 1999/506
The Transfer of Functions (Lord Advocate and Secretary of State) Order 1999, SI 1999/678
The Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999, SI 1999/1820
The Health Act 1999 (Supplementary and Consequential Provisions) Order 1999, SI 1999/2795
The Health Act 1999 (Supplementary, Consequential etc. Provisions) Order 2000, SI 2000/90
The Competition Act 1998 (Transitional, Consequential and Supplemental Provisions) Order 2000, SI 2000/311
The Conditional Access (Unauthorised Decoders) Regulations 2000, SI 2000/1175
The Powers of Criminal Courts (Sentencing) Act 2000
The Health and Social Care Act 2001
The Registered Design Regulations 2001, SI 2001/3949
The Enterprise Act 2002
The Copyright etc. and Trade Marks (Offences and Enforcement) Act 2002
The Copyright (Visually Impaired Persons) Act 2002
The Communication Act 2003
The Health and Social Care (Community Health and Standards) Act 2003
The Copyright and Related Rights Regulations 2003, SI 2003/2498
The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004, SI 2004/957
The Goods Infringing Intellectual Property Rights (Customs) Regulations 2004, SI 2004/1473
The Serious Organised Crime and Police Act 2005
The Commissioners for Revenue and Customs Act 2005
The Constitutional Reform Act 2005
The Government of Wales Act 2006
The National Health Service (Consequential Provisions) Act 2006
The Performances (Moral Rights, etc.) Regulations 2006, SI 2006/18
The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No 2) Order 2006, SI 2006/1016
The Intellectual Property (Enforcement, etc.) Regulations 2006, SI 2006/1028
The Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006, SI 2006/1056
The Legal Services Act 2007
The Tribunals, Courts and Enforcement Act 2007
The Health and Social Care Act 2008
The Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277
The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009, SI 2009/1941
The Audiovisual Media Services Regulations 2009, SI 2009/3348
The Legal Services Act 2007 (Consequential Amendments) Order 2009, SI 2009/3348
The Digital Economy Act 2010
The Local Education Authorities and Children's Services Authorities (Integration of Functions) Order 2010, SI 2010/1158
The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010, SI 2010/2694
The Treaty of Lisbon (Changes in Terminology) Order 2011, SI 2011/1043
The Charities Act 2011
The Health and Social Care Act 2012
The Crime and Courts Act 2013
The Enterprise and Regulatory Reform Act 2013
The Copyright and Duration of Rights in Performances Regulations 2013, SI 2013/1782
The Copyright and Duration of Rights in Performances (Amendment) Regulations 2014, SI 2014/434
The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014, SI 2014/1372
The Copyright and Rights in Performances (Disability) Regulations 2014, SI 2014/1384
The Copyright (Public Administration) Regulations 2014, SI 2014/1385
The Intellectual Property Act 2014
The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, SI 2014/2356
The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014, SI 2014/2361
Care Act 2014 (Schedule 5, Part 4, paragraph 33, not yet in force)
Intellectual Property Act 2014 (section 22, not yet in force)
In addition to the three kinds of body listed in the text, it is worth noting that in the nineteenth century it was common for Parliamentary Select Committees to consider issues of law reform, including in the field of copyright. A list of Select Committee reports on intellectual property issues is to be found in Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law (Cambridge University Press, 1999) at 235–6.
See generally Hugh Clokie and William Robinson, Royal Commissions of Inquiry: The Significance of Investigations in British Politics (Stanford University Press, 1937); Kenneth Weare, Government by Committee: An Essay on the British Constitution (Clarendon Press, 1995); Charles Hanser, Guide to Decision: The Royal Commission (Bedminster Press, 1965); Gerald Rhodes, Committees of Inquiry (Allen & Unwin, 1975); Timothy Cartwright, Royal Commissions and Departmental Committees in Britain: A Case-Study in Institutional Adaptiveness and Public Participation in Government (Hodder & Stoughton, 1975); Lord Benson and Lord Rothschild, ‘Royal Commissions: A Memorial’ (1982) 60(3) Public Administration 339–48; Martin Bulmer, ‘Royal Commissions and Departmental Committees of Inquiry’ (Royal Institute of Public Affairs, 1983); Mike Rowe and Laura McAllister, ‘The Roles of Commissions of Inquiry in the Policy Process’ (2006) 21(4) Public Policy and Administration 99–115; Peter Riddell and Pepita Barlow, ‘The Lost World of Royal Commissions’ (Institute for Government blog, 19 June 2013); Barbara Lauriat, ‘“The Examination of Everything”: Royal Commissions in British Legal History’ (2014) 31 Statute Law Review 24. Note that the literature focuses more on Royal Commissions than departmental committees. Although the only real difference between the two regards the technical method of appointment (by the monarch or by a minister), Royal Commissions at least in the twentieth century tended to be more high-profile and controversial, and possibly less effective.
Clokie and Robinson, note 2 above, at 28; Cartwright, note 2 above, at 32.
Cartwright, note 2 above, Table 3.1, p. 36.
Riddell and Barlow, note 2 above.
Cartwright, note 2 above, Table 3.1, p. 36.
Nevertheless departmental committees do continue to be appointed. An important recent example is the Commission on Devolution in Wales established by the Secretary of State for Wales, the Rt Hon Cheryl Gillan MP, on 11 October 2011 and chaired by Paul Silk. The Silk Commission published two reports, Financial Powers to Strengthen Wales and Legislative Powers to Strengthen Wales, on 19 November 2012 and 3 March 2014 respectively.
Although Royal Commissions and departmental committees were classified by Clokie and Robinson, note 2 above, into three types, namely expert, representative and impartial, it is clear from the subsequent literature that this is not a hard-and-fast classification and that many commissions and committees display all three attributes to a greater or less extent.
Note, however, that public inquiries – whether constituted under the Inquiries Act 2005 or its predecessor the Tribunals of Inquiry (Evidence) Act 1921 (such as the Saville Inquiry into Bloody Sunday) or not so constituted (such as the Hutton Inquiry into the death of David Kelly) – remain a well-used institution. Public inquiries differ from Royal Commissions and departmental committees in a number of respects. Typically, they are led by a single individual; they are investigations into a specific event or series of events; they are primarily concerned with fact-finding; and, while they may make recommendations, such recommendations are not necessarily of a legislative nature. Another procedure which continues to be used is the private inquiry by a committee of Privy Counsellors (such as the Chilcot Inquiry into the Iraq conflict). By contrast with departmental committees, a major concern over such inquiries is their cost. See Oonagh Gray and Chris Sear, ‘Investigatory Inquiries and the Tribunals of Inquiry (Evidence) Act 1921’ (House of Commons Library Standard Note SN/PC/02599).
The 1965 Act also created the Scottish Law Commission. It was amended by the Law Commission Act 2009. In 2007 the Northern Ireland Law Commission was created by the Justice (Northern Ireland) Act 2002, as amended. The origins of the Law Commission lie in the book edited by Gerald Gardiner QC (later Lord Gardiner LC) and Andrew Martin, Law Reform Now (Gollancz, 1963).
The work of the Law Commission, and the implementation of its recommendations, was described by its current Chairman, the Rt Hon Sir David Lloyd Jones, in his Sir William Dale Annual Lecture on 22 November 2012 (available on the Law Commission website).
Another example is the Independent Review of the Commercialisation and Sexualisation of Childhood by Reg Bailey, whose report Letting Children be Children was presented to Parliament in June 2011 (Cm 8078), although this was more concerned with regulatory and ‘soft law’ questions than black letter law.
The decision to set up the Royal Commission was taken by the Prime Minister largely as a result of a deputation he received from representatives of the Association to Protect the Rights of Authors on 10 May 1875 and of a question asked in Parliament by Edward Jenkins MP on the same day, although the Copyright Association had written to the Prime Minister requesting the same thing in February 1875.
The Commissioners appointed in 1875 were Earl Stanhope, the Earl of Roseberry, Robert Bourke, Sir Charles Young, Sir Henry Holland, Sir John Rose, Sir Henry Drummond Wolff, Sir Louis Mallet, Sir Julius Benedict, Thomas Farrer, James Stephen, Farrer Herschell, William Smith and Frederick Daldy.
He had also been called to the Bar.
He was knighted in January 1877 and appointed as Stephen J in January 1879.
Subsequently Solicitor-General from 1880 to 1885 and Lord Chancellor for a brief period in 1886 and again from 1892 to 1895.
For a detailed analysis of the membership of the Commission, their backgrounds and views and their contributions to its work, see Barbara Lauriat, The 1878 Royal Commission on Copyright: Understanding an Attempt at Victorian Copyright Reform (DPhil thesis, Balliol College Oxford, 2013). The Commission has also been considered in detail by: Isabella Alexander, Copyright Law and the Public Interest in the Nineteenth Century (Hart, 2010) at 121–8, 142–6; Ronan Deazley, ‘Commentary on the Royal Commission's Report on Copyright’, in Primary Sources on Copyright 1450–1900 (eds Bently and Kretschmer) (2008) (available at <www.copyrighthistory.org>); John Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (Mansell, 1994) at 185–94; NN Feltes, Literary Capital and the Late Victorian Novel (University of Wisconsin Press, 1993) at 61–3; Paul Saint-Amour, The Copywrights: Intellectual Property and the Literary Imagination (Cornell University Press, 2003) at 53–89; and Catherine Seville, The Internationalisation of Literary Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge University Press, 2006) at 270–4.
Notably of anyone representing the visual arts, drama, journalism or libraries and museums.
For example, Trollope had been an advocate of international copyright: see Lauriat, note 18 above, at 48–52.
The minutes have proved an invaluable resource for subsequent scholars.
C.2036. Sir Louis Mallet dissented from the whole Report, while a number of other members expressed reservations in relation to parts of the Report.
‘(1) Books; (2) Musical compositions; (3) Dramatic pieces; (4) Lectures; (5) Engravings and other works of the same kind; (6) Paintings, drawings and photographs; and (7) Sculpture’: ibid at para. 3.
Stephen's Digest in itself revealed the uncertainty of the law, since many of the Articles and footnotes contained expressions such as ‘probably’, ‘it seems’ and ‘it is doubtful’.
Note 22 above at para. 13.
Bills to codify copyright law were introduced in 1878, 1879, 1881, 1890, 1898 and 1910, but not passed. The 1898 Bill led to no fewer than three Reports of the Select Committee of the House of Lords: see Sherman and Bently, note 1 above and Seville, note 18 above, at 239–41. The Australian Copyright Act 1905 was, however, substantially based on the Report and in particular Stephen's Digest: see Lauriat, note 18 above, at pp. 257–8 and Benedict Atkinson, The True History of Copyright: The Australian Experience 1905–2005 (Sydney University Press, 2007) at 18–20.
By a private members' bill which became the Copyright (Musical Compositions) Act 1888.
1903. In the preface to the 3rd edition (1896), Scrutton had complained: ‘Hardly a copyright case comes into Court, hardly a copyright question comes before counsel for opinion, which does not emphasise the necessity for a thorough revision and codification of the numerous and ill-drafted Acts which constitute the Copyright Law of England. The Copyright Commission urgently recommended this in 1878, but we seem after eighteen years no nearer the desired haven’.
See Lionel Bently, ‘R v The Author: From Death Penalty to Community Service’ (2008–2009) 32 Colum. J.L. & Arts 1 at 30–32; Seville, note 18 above, at 290–92.
Indeed, more so, since it included representatives of the visual arts, drama, journalism and of the fledgling record industry, although not of libraries and museums.
For example, Alma-Tadema had previously chaired the St John's Wood Art Club's Artistic Copyright Committee from 1896 to 1899. The Committee instructed Scrutton to draft the Copyright (Artistic) Bill, which was introduced into the House of Lords in 1899: see David Foxton, The Life of Thomas E. Scrutton (Cambridge, 2014) at 129–33. This was one of nine Bills on the subject of artistic copyright during the period from 1868 to 1900, none of which were passed.
Cmd. 4976 (1909). A number of members of the Committee expressed reservations on certain points.
Ibid at 3.
Ibid at 7–8.
The legislative history of the 1911 Act is described by Bently, note 29 above, at 32–4. The codification achieved by the 1911 Act was not complete, since the Musical (Summary Proceedings) Copyright Act 1902, the Musical Copyright Act 1906 and one section of the Fine Arts Copyright Act 1862 remained in force.
Minor amendments were made by the Copyright (British Museum) Act 1915 (repealed by the British Museum Act 1932), the National Library of Scotland Act 1925, the Law Reform (Married Women and Tortfeasors) Act 1935 and the Customs and Excise Act 1952.
He was knighted in 1952.
See Bently, note 29 above, at 34–5.
Ibid at 1–2.
The legislative history of the 1956 Act is described by Bently, note 29 above, at 36–8.
Minor amendments were made by the Copyright (Amendment) Act 1971 and a small number of other statutes.
There was a specific exclusion from the Committee's terms of reference of any consideration of the merits of lending to the public as one of the acts restricted by copyright in a work.
And a partner in Joynson-Hicks, the firm founded by William Joynson-Hicks (which later became part of Taylor Joynson Garrett, now Taylor Wessing).
Now Jaqueline Duncan.
It might make an interesting PhD project to analyse the submissions and notes of evidence, assuming they are still extant and could be obtained, and to compare them with the Committee's report.
For a contemporary reaction to the report, see Gerald Dworkin, ‘The Whitford Committee Report on Copyright and Designs Law’ (1977) 40 MLR 685–700.
Note 48 above at para 16.
The drafting of the 1956 Act was also criticized by Sir William Dale in a book published in the same year as the Whitford Committee's report, Legislative Drafting: A New Approach (Butterworths, 1977). Francis Bennion, one of the draftsmen of the 1956 Act, responded in a review:  Stat LR 61.
Notably in relation to the protection of designs. The Whitford Committee's recommendations that the Registered Designs Act 1949 should be repealed and a two-tier system of copyright protection for designs should be introduced were rejected. Instead, Part III of the 1988 Act was largely modelled on the proposals of the Johnston Committee on Industrial Designs in its report presented to Parliament in August 1962, Cmnd 1808.
There have also been a number of reports by governmental or legislative bodies which have not resulted in recommendations for specific amendments to the 1988 Act, including: New Media and the Creative Industries (Culture, Media and Sport Select Committee Report, 2007), Digital Britain: Final Report (Department for Business Innovation and Skills and Department of Culture Media and Sport, Cm 7650, June 2009) and © The Way Ahead: A Strategy in the Digital Age (IPO and BIS, October 2009). These reviews have taken place alongside the ongoing processes of implementing European Directives in the field of copyright and related rights (as to which, see the discussion below) and of making other, minor amendments to the 1988 Act consequential upon other legislative developments.
The terms of reference as set out in paragraph E.5 of the Executive Summary to the published Review (December 2006). The background to the setting up of the Gowers Review is described in Hector MacQueen, ‘Copyright Law Reform: Some Achievable Goals?’, in Fiona Macmillan (ed), New Directions in Copyright Law volume 4 (Edward Elgar, 2007).
Although the recommendations are numbered from 1 to 54, three are divided into a and b.
The Gowers Review was itself reviewed by the All-Party Parliamentary IP Group in 2009. There is also a considerable academic literature concerning the Review, including: David Bainbridge, ‘The Gowers Review of Intellectual Property’  IP & IT Law 4–10; William Cornish, ‘Intellectual Property in Britain: The Gowers Review’  IIC 1–5; Christopher Morcom, ‘Gowers: A Glimmer of Hope for UK Compliance with Article 10bis of the Paris Convention’  EIPR 125–7; Ian de Freitas, ‘The Gowers Review of Intellectual Property: What's in it for the Technology Sector?’  Comp & Law 27–9; Jeremy Drew and Georgia Warren, ‘Reviewing Gowers’  NLJ 502–503; Mark van Hoorebeek, ‘Proudhon, Gowers and Sir Cliff: La Propriété C'est le Vol?’ (2007) 51(Sum), SL Rev 42–3; Andreas Rahmatian, ‘The Gowers Review on Copyright Term Extension’  EIPR 353–6; Stephen Saxby, ‘Gowers Review of Intellectual Property Bears Fruit’ (2008) 23 CLSR 93–4; Ronan Deazley, ‘Copyright and Parody: Taking Backward the Gowers Review?’ (2010) 73 MLR 785–807; Mark van Hoorebeek, ‘Gowers, Lammy, Levine and Boldrin: Will the Digital Britain Reports Develop a Copyright Agenda for the 21st Century?’ (2010) SL Rev 60(Sum), 45–6.
Foreword, p. 1. One measure of Gowers' approach is the fact that he made no specific recommendations at all in respect of designs, although some of his general recommendations, such as those with respect to enforcement, embrace designs.
Recommendation 2: Enable educational provisions to cover distance learning and interactive whiteboards by 2008 by amending sections 35 and 36 of the CDPA. Recommendation 8: Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers. Recommendation 9: Allow private copying for research to cover all forms of content. This relates to the copying, not the distribution of media. Recommendation 10a: Amend s 42 of the CDPA by 2008 to permit libraries to copy the master copy of all classes of work in permanent collections for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear. Recommendation 10b: Enable libraries to format shift archival copies by 2008 to ensure records do not become obsolete. Recommendation 11: Propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test. Recommendation 12: Create an exception to copyright for the purpose of caricature, parody or pastiche by 2008. Recommendation 13: Propose a provision for orphan works to the European Commission, amending Directive 2001/29/EC. Recommendation 36: Match penalties for online and physical infringement by amendment section 107 of the CDPA by 2008. Recommendation 42: Give Trading Standards the power to enforce copyright infringement by enacting section 107A of the CDPA by 2007. In addition, Gowers recommended that the term of protection for sound recordings and performers' rights should not be increased by the EU: recommendation 3.
See in particular: Taking Forward the Gowers Review of Intellectual Property: Proposed Changes to Copyright Exceptions (UKIPO Consultation Paper, November 2007) (recommendations 2, 8, 9, 10a, 10b, 12); Taking Forward the Gowers Review of Intellectual Property: Penalties for Copyright Infringement (UKIPO Consultation Paper, August 2008) (recommendation 36); Taking Forward the Gowers Review of Intellectual Property: Second Stage Consultation on Copyright Exceptions (IPO Consultation Paper, December 2009) (recommendations 2, 8, 9, 10a, 10b, 12); and the consultations which followed the Hargreaves Review.
Consultation on Changes to Exemptions from Public Performance Rights in Sound Recordings and Performers' Rights (UKIPO Consultation Paper, June 2008). This followed an earlier consultation in 2002. The amendments were implemented by the Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010, SI 2010/2694.
The full terms of reference are set out in Annex A to the final report.
Unlike Gowers, Hargreaves did address designs, recommending that this area be reviewed by the IPO (recommendation 7). This led to the reforms implemented by sections 1 to 14 of the Intellectual Property Act 2014.
The Hargreaves Review was itself reviewed by the Business, Innovation and Skills Select Committee in a report published in June 2012. There is also a considerable academic literature concerning the Review, including: Nick Rose and Michael Sweeney, ‘The Hargreaves Report’  Ent LR 201–203; Joel Smith and Rachel Montagnon, ‘The Hargreaves Review – A ‘Digital Opportunity’’  EIPR 596–9; Hogarth Chambers, ‘The Hargreaves Review – Another Mixed Bag’  EIPR 599–603; Eleonora Rosati, ‘The Hargreaves Report and Copyright Licensing: Can National Initiatives Work Per Se?’  EIPR 673–6; Andreas Rahmatian, ‘The Hargreaves Review on Copyright Licensing and Exceptions: A Missed Moment of Opportunity’  Ent LR 219–23; Gwilym Roberts, ‘The Hargreaves Review Reviewed: A Missed Opportunity to Help the Dragons in Their Den?’  QMJIP 280–4; Claire Howell, ‘The Hargreaves Review: Digital Opportunity: A Review of Intellectual Property and Growth’  JBL 71–83; Florian Koempel, ‘Life After the Hargreaves Report’  QMJIP 267–78.
Recommendations 4 (orphan works) and 5 (limits to copyright).
Namely the recommendations with regard to format shifting, parody, non-commercial research and library archiving. In addition, Hargreaves went further in recommending an exception for text mining and domestic legislation with regard to orphan works. He also expressed support for extended collective licensing and recommended that collecting licensing bodies be required to adopt codes of practice.
See in particular: Consultation on Copyright (IPO Consultation Paper, December 2011); Regulation of Licensing Bodies (IPO Consultation Paper, September 2013); Extending the Benefits of Collective Licensing (IPO Consultation Paper, November 2013); Copyright Works: Seeking the Lost (IPO Consultation Paper, January 2014). I have not included purely technical reviews of the draft legislation.
In some respects, the amendments which have been implemented go further than the specific recommendations of Gowers and Hargreaves: see in particular the new exception for quotation introduced into section 30 of the 1988 Act by regulation 3 of the Copyright and Rights and Performances (Quotation and Parody) Regulations 2014, SI 2014/2356. In addition, the exceptions for disabled persons were broadened by the Copyright and Rights in Performances (Disability) Regulations 2014, SI 2014/1384.
In addition to the repeal of section 52 of the 1988 Act mentioned in the text, section 76 of the 2013 Act amended section 170 of the 1988 Act to enable the duration of copyright in unpublished works falling within the transitional provisions in Schedule 1 to be reduced. It also included some rather curious provisions disapplying paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972 (sections 75 and 78) and provisions which amended the 1988 Act to enable Hargreaves' recommendations concerning orphan works, extended collective licensing and codes of practice for licensing bodies to be implemented (section 77 and Schedule 22 Part 1). For commentary on some potential problems arising out of the 2013 Act, see Philip Johnson, ‘“Invalid Legislation”? The Strange Effect of the Enterprise and Regulatory Reform Act 2013 and the Copyright Omnishambles’  JIPLP 700–707 and Eleanor Rosati, ‘The Orphan Works Provisions of the ERR Act: Are they Compatible with UK and EU Laws?’  EIPR 724–40. For more general commentary, see David Fyfield, ‘The Enterprise and Regulatory Reform Act 2013: The Impact on Copyright and Performers' Rights’  EIPR 606 and Colin Davies and Tania Cheng, ‘Public Benefit or Private Loss – Orphan Works and the Enterprise and Regulatory Reform Act 2013’  Comms L 77–82.
Case C-168/09 Flos SpA v Semeraro Case e Famiglia SpA  ECR I-181.
Consultation on Transitional Provisions for the Repeal of Section 52 of the Copyright, Designs and Patents Act 1988 (IPO Consultation Paper, September 2014).
Section 22 (not yet in force) amends sections 154, 155, 156 and 159 of the 1988 Act, and inserts a new section 212A, dealing with recognition of foreign copyright works and performances.
See the Law Commission Consultation Paper No 212 (April 2013) and Final Report Law Com No 346 (April 2014), ‘Patents, Trade Marks and Design Rights: Groundless Threats’.
This was despite the fact that threats of copyright litigation had recently attracted considerable public attention and concern: see Golden Eye (International) Ltd v Telefonica UK Ltd  EHWC 723 (Ch),  RPC 28. Although the advent of the small claims track in the Patents County Court (now the Intellectual Property Enterprise Court) has alleviated the problem, the activities of so-called ‘copyright trolls’ remain a subject for concern: see eg Hargreaves and Hugenholtz, Copyright Reform for Growth and Jobs: Modernising the European Copyright Framework (Lisbon Council Policy Brief issue 12/2013) at 14.
The need for new copyright legislation has been widely recognized for some time: see eg Andrew Christie, ‘A Proposal for Simplifying United Kingdom Copyright Law’  EIPR 26–43 and David Vaver, ‘Reforming Intellectual Property Law: An Obvious and Not-so-obvious Agenda’  IPQ 143–61. The matter was discussed at a stakeholder workshop organized by the Strategic Advisory Board for Intellectual Property Policy (‘SABIP’) on 16 July 2009: see the report of the proceedings, Exploring the Case for Simplification of the Copyright Framework published by SABIP on 26 February 2010. SABIP was itself subsequently abolished, however.
The Agreement on Trade-related Aspects of Intellectual Property Rights which forms Annex 1C to the Agreement establishing the World Trade Organization signed in Morocco on 15 April 1994.
The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both concluded in December 1996.
The Beijing Treaty on Audiovisual Performances, concluded on 24 June 2012.
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, concluded on 27 June 2013.
Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (codified as European Parliament and Council Directive 2009/24/EC of 23 April 2009); Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified as European Parliament and Council Directive 2006/115/EC of 12 December 2006; Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission; Council Directive 93/98/EEC of 29 October 1993 on the term of protection of copyright and certain related rights (codified as European Parliament and Council Directive 2006/116/EC of 12 September 2006); European Parliament and Council Directive 96/9/EC of 11 March 1996 on the legal protection of databases; European Parliament and Council Directive 2001/84/EC of 27 September 2001 on the resale right for the benefit of an original work of art; European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society; European Parliament and Council Directive 2011/77/EU of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and related rights; European Parliament and Council Directive 2012/28/EU of 25 October 2012 on certain permitted uses of orphan works; and European Parliament and Council Directive 2014/26/EU of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights on musical works for online use in the internal market.
In particular: European Parliament and Council Directive 98/84/EC of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access; European Parliament and Council Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market; European Parliament and Council Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights; European Parliament and Council Regulation 864/2007/EC of 31 July 2007 on the law applicable to non-contractual obligations (‘Rome II’); and European Parliament and Council Regulation 608/2013/EU of 12 June 2013 concerning customs enforcement of intellectual rights.
See Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA  ECR I-4135 at ; Litster v Forth Dry Dock and Engineering Co Ltd  1 AC 546, HL at 558C-H (Lord Templeman) and 576E-577D (Lord Oliver of Aylmerton); Cases C-397/01 to C-403/01 Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV  ECR I-8835 at –; R (IDT Card Services Ireland Ltd) v Commissioners for Her Majesty's Revenue and Customs  EWCA Civ 29,  STC 1252 at – (Arden LJ); and Vodafone 2 v Revenue and Customers Commissioners (No 2)  EWCA Civ 446,  STC 1480 at – (Sir Andrew Morritt C).
See eg Estelle Derclaye, ‘Assessing the Impact and Reception of the Court of Justice of the European Union Case Law on UK Copyright Law: What Does the Future Hold?’  240 Revue Internationale du Droit d'auteur 5–117.
See the list in the Appendix. This does not include the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014, SI 2014/2861, which were awaiting Parliamentary approval on 13 October 2014.
See Richard Arnold, ‘Content Copyrights and Signal Copyrights: The Case for a Rational Scheme of Protection’  QMJIP 272–9.
See Richard Arnold, ‘Copyright in Photographs: A Case for Reform’  EIPR 303–305 and Arnold, note 89 above.
Eleonora Rosati, Originality in EU Copyright (Edward Elgar, 2013), Ch. 5. See also Christie, note 78 above.
Lionel Bently, ‘The Return of Industrial Copyright?’  EIPR 654–72.
Note that the provisions concerning artists' resale right, database right and publication right are not even to be found in the 1988 Act, despite its length. Nor are the many transitional provisions relating to the successive amendments to implement EU Directives.
Dr Jeremy Philips said in a blogpost on the IPKat blog on 23 September 2014 that ‘The copyright legislation in the United Kingdom is, so far as this Kat is aware, the longest, the most confusing and the hardest to navigate in the world. If they were giving medals for Legislative Nasties, the Copyright, Designs and Patents Act 1988, together with its attendant amendments and subordinate legislation, would surely win Gold, Silver and Bronze’.
Essentially as recommended by Hargreaves (recommendation 10).
Compare the five options of ‘tidying’, ‘tinkering’, ‘adding/codifying’, ‘restructuring of exceptions’ and ‘radical restructuring’ considered by SABIP: see note 78 above.
See Richard Arnold, Performers' Rights (4th edn, Sweet & Maxwell, 2008) at para 1.111.
This is not to pretend that this is an entirely straightforward exercise. Some of the provisions in the Directives cannot be implemented as they stand, since they require choices to be made or detail to be supplied. Furthermore, there is a degree of inconsistency between the Directives at least in the language they use.
The past tendency of Parliamentary draftsmen to re-write even mandatory provisions of European Directives which do not require choices to be made with regard to implementation has been much criticized and has led to the courts looking directly to the European legislation instead: see eg British Sugar plc v James Robertson & Sons Ltd  RPC 281 at 291 (Jacob J), Philips Electronics NV v Remington Consumer Products  RPC 283 at 290 (Jacob J) and many subsequent dicta. Happily, the current practice is usually to follow the European text as closely as possible. For discussion of this issue from the draftsman's perspective see Daniel Greenberg, ‘The Copy-Out Debate in the Implementation of European Union Law in the United Kingdom’ (2012) 6 Legisprudence 243.
Unless that takes the form of a unitary European copyright title as proposed by eg Hargreaves and Hugenholtz, note 77 above.
See the Australian Law Reform Commission's report Copyright and the Digital Economy (13 February 2014).
See Maria Pallante, ‘The Next Great Copyright Act’ (2013) 37 Colum. J.L. & Arts 315 and the US Copyright Office's current Music Licensing and Making Available Studies.
For a commentary, see Martin Kretschmer, Ronan Deazley, Lillian Edwards, Kristofer Erickson, Burkhard Schafer and Daniel John Zizzo, ‘The European Commission's Public Consultation on the Review of EU Copyright Rules: A Response by the CREATe Centre’  EIPR 547–53.
On the other hand, it should be recognized that the procedures adopted by the Royal Commission and by the Gorell, Gregory and Whitford Committees did have the advantage of enabling them to test the evidence of witnesses through oral questioning.
It is a mistake to think that this is a new phenomenon. The proceedings and reports of the Royal Commission and the Gorell, Gregory and Whitford Committees reveal sharp and passionate dissension on many points. In the case of the Royal Commission, this extended to dissension over the very purpose and rationale of copyright itself: see note 18 above.