Major changes recently introduced to UK copyright law will have a significant effect on solicitors and their clients, writes Martin Delaney

On October 31 2003, the government implemented EC Directive 2001/29 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, known as the EU Copyright Directive.

The Copyright and Related Rights Regulations 2003 (SI No.

2498) introduced major changes to UK copyright law, which have a substantial effect on solicitors' firms and their clients.

The changes will affect any business or law firm whose staff make photocopies, scan, store or e-mail extracts from books, magazines, newspapers, journals and other periodicals or who wish to circulate copies received from document delivery organisations or from press cuttings agents.

Law firms and businesses will wish to review existing policies on photocopying and to check whether appropriate licences and/or permissions have been obtained, so that they do not risk infringing the law each time an employee photocopies or circulates copies of published material.

Practices now have to field an increasing number of enquiries from their clients requiring advice about the new law, and in turn the Copyright Licensing Agency (CLA) has been contacted by many law firms.

Record numbers of practices have themselves taken out a licence since November 2003, and the CLA is receiving enquiries from solicitors on an almost daily basis.

However, some law firms and many businesses are still unsure about the law - what it means and whether or not they might require a copyright licence.

The changes include a right of communication to the public, protection for technological measures designed to protect copyright and for digital rights management systems, an extension to the sanctions and remedies available for copyright infringement and changes to the 'time-shifting' exceptions regarding the use of television broadcasts or cable programmes in domestic premises.

Here we focus on the change that has had the greatest impact - the narrowing of the various exceptions to copyright, collectively known as 'fair dealing'.

Fair dealing

Prior to 31 October 2003, any copying for 'research' purposes or for 'private study' was deemed not to infringe copyright, provided it could be classed as 'fair dealing'.

None of these terms was defined by statute.

There was a body of case law that assisted with interpretation and it was clear that the making of multiple copies for circulation to a group of people, or the copying of more than a small proportion of a copyright work, could not be 'fair dealing'.

This has now been clarified in accordance with the EU Copyright Directive so that copying for research, where that research is carried out for commercial purposes, will no longer be an exception to copyright.

Equally any copying for private study, if the private study is for commercial purposes, will also not qualify for the exception.

The new law does not attempt to define what is 'commercial', but the government has issued a guidance note for businesses (see www.patent.gov.uk/copy/notices/2002/guidance2.htm).

The British Library and the CLA have jointly produced some guidance and examples of what may be classed as commercial or non-commercial (see www.cla.co.uk/directive/BL-CLA-FAQ.doc).

Similarly the exception known as 'library privileges', has been narrowed.

This had provided an exception to copyright for librarians making single copies in circumstances that would have fallen within the exception for fair dealing for research or private study, had the copying been done by a patron rather than a librarian.

The copying had to fall within certain limits and a declaration form signed by the individual indicating conformity with certain conditions.

These included the fact that the copy would only be used for research or private study, that it would not be further copied and that it was not related to a similar request from anyone with whom the requestor worked or studied.

This exception now also only applies to the extent that the copies are required for non-commercial purposes.

Law firms and clients

Copying for the purposes of judicial proceedings is still an exception to copyright.

Otherwise, it is now highly likely that virtually all copying of copyright material by businesses and law firms would be classed as commercial as would the supply and receipt of copies from libraries, document supply organisations and press cuttings agencies.

Such copying needs to be covered by a permission obtained directly from the copyright owner (the author, artist, or publisher in question) or under the authority of a collective licence (for example, from the CLA or the Newspaper Licensing Agency).

The CLA business licence authorises photocopying, scanning and e-mail distribution of extracts from books, journals and magazines by or to employees for internal purposes.

Further copying and/or circulation within firms or parts of firms of press cuttings of journals, magazines and law reports or of particular copies obtained from document suppliers, such as the British Library is also covered.

The licence is a 'blanket' licence, meaning that there is no need to seek permission each time before copying or to record the number or detail of any copies made (subject to certain limited data collection requirements for distribution purposes).

The fees are calculated based on the number of 'professional employees' employed by the business.

There is also a flat rate for small businesses of 95 for firms with fewer than ten employees, or 295 for those with fewer than 50 employees.

Many practices will already have a CLA 'model law firms licence', which the CLA negotiated with the Law Society and the City of London Law Society in 2001 to cover their own domestic copying needs.

It covers not only the ad hoc copying by staff, whether in connection with working on a particular matter or generally as part of their professional development, but also the systematic and routine circulation of multiple copies among project groups.

This expired in July of last year and, although it was extended for existing licensees, law firms who had not taken out a CLA law firms licence by December 2003 will have to take out a CLA business licence.

However, the CLA has begun negotiations with its rightsholders and the Law Society to consider whether a new version can be developed for later this year.

Other CLA licences

The CLA also offers licences to allow the delivery of documents to third parties, for example, by professional document delivery organisations, press cuttings agencies and public libraries.

For organisations with a small scale of document supply (defined as being fewer than I,200 copies supplied per year) there is a blanket document delivery licence that may be of interest to law firms not yet licensed and wishing to supply copies to their clients.

The CLA has also developed a 'sticker scheme', whereby walk-in users at libraries can pay a fee to make lawful copy for commercial purposes and offers a 'transactional' licence for larger document delivery organisations where each supply of a copy is recorded and paid for.

For details on these and the press cuttings agencies' licence, visit the CLA Web site at www.cla.co.uk and/or telephone the CLA, tel: 020 7631 5555; fax: 020 7631 5500 or e-mail: cla@cla.co.uk.

Martin Delaney is the legal director at the Copyright Licensing Agency