Reproduction Right Issues
24. The Act provides copyright owners with the exclusive right to copy a work (and restrict others from copying), which includes the right to reproduce or record a work in "any material form", and in relation to a literary, dramatic, musical or artistic work, to "store the work in any medium by any means".
125. The discussion paper asked whether the current reproduction right (and definition of "copying") is sufficient to allow owners to control the digital reproduction of their works. The paper also asked whether the definition should be amended to take account of temporary or incidental copies that are automatically made by computers and communications networks as a result of technological processes (for the most part are made without the specific knowledge of the user).
26. There was general agreement that owners should be able to control digital copying and "first digitisation" of works that exist in print or analogue form. Several respondents (including legal experts) considered that digital copying and first digitisation are already covered by the existing technology-neutral definition of copying ("reproducing or recording a work in any material form"). Most respondents also considered that the second part of the definition, "storage in any medium by any means", in relation to literary, dramatic, musical and artistic works, was sufficiently wide to cover storage in a digital form.
27. Some respondents (including legal experts) considered that "transient copying" is covered by the existing definition of copying and would constitute "storage in a medium" or "recording in a material form". Liability for unauthorised copying could therefore arise, under the provisions of the Act, in relation to temporary and incidental copies. While views of respondents were divided on whether transient copying is already covered (or should be covered) by the reproduction right, the vast majority of respondents considered that the Act should expressly state whether or not transient copies are included. Respondents views were, however, split equally among three potential changes to the Act:
- Transient copying gives rise to copyright infringement with no exceptions to excuse infringement in certain circumstances.
- Transient copying gives rise to copyright infringement, but with exceptions provided in relation to copying automatically undertaken as part of a technical process in a computer system.
- Transient copying does not give rise to copyright infringement in any circumstances.
1Copyright Act 1994, section 2 (contains the definition of "copying").
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