Changes to UK copyright law: the potential impact for the healthcare sector and beyond

Date published

11/13/2019

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Recent changes to UK copyright law may have unexpected consequences for the healthcare sector. Under the new legislation, NHS Trusts, hospitals, and other healthcare providers may be required by copyright holders to pay a licence fee to enable them to show broadcast television and other content on their premises.

Changes in the law

Until recently, the Copyright, Designs and Patents Act 1988 (CDPA 1988) permitted premises with free public access, to show television broadcasts without the permission of certain copyright owners. Legal action by the Football Association Premier League Ltd against public houses and other venues, which were showing their matches using unauthorised satellite decoders, led to the revision of certain provisions of the CPDA 1988. These changes are now having an impact in the healthcare sector and beyond.

Under the new regime, whenever audiovisual content - whether films or television shows on DVD/Blu-ray, downloads, streaming, broadcast television, pay TV or video on demand - are being viewed outside a private home, it is considered a ‘public performance’. This means that legal authorisation may be required to avoid any copyright infringement. Section 16(1) of the CDPA 1988 states that only the copyright owner holds the exclusive right “to perform, show or play the work in public”. Further, following recent changes to s.72 of the CDPA 1988, copyright holders are entitled to require any party wishing to provide viewings considered to be a ‘public performance’, to obtain a licence in order to do so.

The Government’s Intellectual Property Office (IPO) has issued guidance on the changes to the CDPA 1988. In the guidance, the IPO has noted that many copyright owners choose to permit non-commercial activity without a licence or at a reduced rate. In addition, the IPO guidance states that it was not aware of any changes to the way broadcast content was licensed as a result of the changes to the legislation. The IPO did, however, note that the new rules meant it was possible that rightsholders may “change the way they license their works” over time.

Do you need a licence?

CPDA 1988 does not include a general exemption for non-commercial organisations, such as hospital Trusts, charities and not-for-profit organisations. The main exception is for curriculum-based screenings in state schools, for which a licence is not required.

As such, if films and/or television programmes are shown for staff or patients on a healthcare provider’s/organisation’s premises, whether in waiting areas or on wards, then a licence may be required. This is regardless of whether such televisions show films and other content on free-to-air channels, are set up to show DVDs that have been purchased or rented for that purpose, or show content through an online streaming service subscription.

How much will it cost?

While the legislation referred to above specifies the circumstances in which a licence will be required, it does not provide any guidance as to the terms on which such licences should be issued. As such, the licence fee and other terms are a commercial matter to be decided between the rightsholder and the party wishing to show its content.

Requests for each ward and waiting room to have a separate licence are possible.

Comment

In light of the new legislative landscape, healthcare providers/organisations should give consideration to existing arrangements for showing television on their premises. Consideration should also be given to whether any changes can be made to reduce the impact of any fees payable to rightsholders. Regardless of any future arrangements, organisations may still be asked to pay licence fees to rightsholders for periods during which films and/or television programmes have been shown on the premises up to that point.

If an external provider is used for audiovisual services, it may be sensible to review any existing contractual arrangements with them. The provider may hold certain relevant licences themselves, or have some obligations to contribute towards the cost of them. Responsibility for licensing costs is also a matter that should be considered in relation to agreements with any future providers of such services.

This article was co-authored by Beth Ashton, trainee solicitor

Read more items in Healthcare Brief - December 2019