Businesses' UK film copyright licence requirements clarified

Eilidh Smith of Pinsent Masons said the IPO’s intervention would be welcomed by businesses that have been targeted for payment of additional licensing fees in recent times. However, she advised businesses to seek legal advice specific to their own on-premises circumstances before engaging with collecting societies seeking to negotiate copyright licences.

Smith’s recommendation follows the publication of new guidance by the IPO. The guidance is designed to help businesses understand the practical effects of a change made to section 72 of the Copyright, Designs and Patents Act in 2016. That change removed an exception to copyright infringement where film is shown in public. It means businesses need a licence to show film in public or are otherwise liable for copyright infringement.

Since the law was changed, licensing bodies such as the Motion Picture Licensing Company (MPLC), which acts on behalf of numerous film copyright holders, have contacted businesses that have TVs in reception areas, staff rooms, canteens, or elsewhere on their premises, seeking the payment of licensing fees for showing film in public.

Smith said, however, that there have been some issues arising from MPLC’s activities that have proven contentious. She said the IPO’s guidance helped provide clarity on those points.

One of the issues that she said had arisen concerns liability for ‘film’ licences when TVs in business premises broadcast rolling news channels or subscription sports channels.

Smith said: “Live news and sports qualify as ‘broadcasts’ which are separate to the ‘film’ category that was the subject of the 2016 change to the law; ‘broadcasts’ remain an exception under the legislation. However, there has nevertheless been a question over whether businesses with TVs on their premises broadcasting such channels require a licence from the MPLC to cover the incidental showing of film protected by copyright on those channels. The IPO’s guidance makes it clear that this is not the case.”

The IPO said: “If you only show the BBC News channel and Sky News on your premises, you do not currently need an additional copyright licence for this. However, you still need a TV licence for both channels. If you only show dedicated sports channels on your premises, such as Sky Sports or BT Sport, you will need a commercial viewing agreement and subscription from such companies.”

“Pubs and other commercial premises require a commercial subscription to show exclusive subscription broadcasts. The commercial subscription acts as a licence for showing the broadcast in a public venue but only covers the content for which the licence has been agreed e.g. live sports. If you are showing channels which show a range of content then additional licences would be required,” it said.

Another issue that has been contentious is the extent to which businesses require a licence to avoid liability for infringement caused by the action of their employees whilst in the workplace.

According to the IPO, even if businesses have a policy in place to prohibit staff from changing the channel on TVs on-premises, they should also ensure there is a further “mechanism” in place to “ensure that no films or TV programmes (including news-related programmes like documentaries) are shown in public”.

“For example, if you show a live news broadcast on terrestrial TV, measures should be in place to ensure the TV is switched off after the news content has ended,” it said. It also gave the example of “signage and restricted access to remote controls”.

The IPO’s guidance also confirmed that businesses that provide employees with IT equipment are not automatically liable for a film licence to cover the potential of employees using the equipment to view copyrighted films. However, it has advised employers to implement training and adopt policies, including an acceptable use policy, to prevent employees from accessing such content.

Smith said that this guidance clarifies the position that, while businesses bear the onus of ensuring that they are not infringing copyrighted content, there are reasonable measures that can be put in place to prevent any risk of infringement, as opposed to necessarily requiring a licence.

The IPO’s guidance indicates that, while licensing bodies “should be able to advise on what copyright protected content is covered by their licences”, “[p]rospective licensees (users), especially those with extensive or complex use requirements, should also strongly consider obtaining independent legal advice”. Smith echoed this advice. She said all businesses should seek independent legal advice if they think they may be liable for a licence. This is because the complex nature of the change to the law, together with the complex tariff structure of some licensing bodies, can make apparently simple uses of TVs by businesses complex and contentious, she said.

The IPO also highlighted that businesses can challenge the price or terms of a copyright licence before the Copyright Tribunal in the event of a dispute with a rights holder or licensing body.