The Copyright, Designs and Patents Act 1988 (c. 48), also known as the CDPA, is an Act of the Parliament of the United Kingdom which received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law (including performing rights) in the United Kingdom, which had until then been governed by the Copyright Act 1956 (c. 74). It also creates an unregistered design right, and contains a number of modifications to the law of the United Kingdom on registered designs and patents.
Part I of the Act "restates and amends" (s. 172) the statutory basis for United Kingdom copyright law,
although the Copyright Acts of 1911 (c. 46) and 1956 (c. 74) continue to have some effect in limited circumstances under ss. 170 & 171 and Schedule 1. It brings United Kingdom law into line with the Berne Convention for the Protection of Literary and Artistic Works, which the UK signed more than one hundred years previously, and allowed the ratification of the Paris Act of 1971.
Descriptions of work
The Act simplifies the different categories of work which are protected by copyright, eliminating the specific treatment of engravings and photographs.
- literary, dramatic and musical works (s. 3): these must be recorded in writing, and copyright subsists from the date at which recording takes place
- artistic works (s. 4): includes buildings, photographs, engravings and works of artistic craftsmanship.
- sound recordings and films (s. 5)
- broadcasts (s. 6): a broadcast is a transmission by wireless telegraphy which is intended for, and capable of reception by, members of the public.
- cable programmes (s. 7). A cable programme is a part of a service which transmits images, sound or other information to two or more different places or to members of the public by any means other than wireless telegraphy. There are several exceptions, including general Internet use, which may be modified by Order in Council.
- published editions (s. 8) means the published edition of the whole or part of one or more literary, dramatic or musical works.
The following works are exempted from copyright by the transitional provisions of Schedule 1:
- artistic works made before 1 June 1957 which constituted a design which could be registered under the Registered Designs Act 1949 c. 88 (or repealed measures) and which was used as a model for reproduction by an industrial process (para. 6);
- films made before 1 June 1957: these are treated as dramatic works (if they so qualify under the 1911 Act) and/or as photographs (para. 7);
- broadcasts made before 1 June 1957 and cable programmes transmitted before 1 January 1985 (para; 9).
The Act as it received Royal Assent does not substantially change the qualification requirements of the author or the country of origin of the work, which are restated as ss. 153–156: these have since been largely modified, in particular by the Duration of Copyright and Related Rights Regulations 1995 No. 3297.
Duration of copyright
The provisions on duration have been largely modified by the Duration of Copyright and Related Rights Regulations 1995 No. 3297. The provisions of the 1988 Act (ss. 12–15) as it received Royal Assent are given below. All periods of copyright run until the end of the calendar year in which they would otherwise expire. The duration of copyright under the 1988 Act does not depend on the initial owner of the copyright, nor on the country of origin of the work. The following durations do not apply to Crown copyright, Parliamentary copyright or the copyright of international organisations
| Literary, dramatic, musical or artistic works
|| Copyright lasts for seventy years from the death of the author. If the author is unknown, copyright expires seventy years after the work is first made available to the public. If the work is computer-generated, copyright expires fifty years after the work is made. |
| Sound recordings and films
|| s. 13
|| Copyright lasts for seventy years after the recording or film is made. If the recording or film is released (published, broadcast or shown in public) within this period, the copyright lasts for seventy years from the date of release. |
| Broadcasts and cable programmes
|| s. 14
|| Copyright lasts for seventy years after the first broadcast or transmission. The repeat of a broadcast or a cable programme does not generate a new copyright period. |
| Typographical arrangements
|| s. 15
|| Copyright lasts for twenty-five years after the edition is published. |
These provisions apply to works existing on 1 August 1989, other than those covered by Crown copyright or Parliamentary copyright
(paras. 12 & 13 of Schedule 1).
The duration of copyright in the following types of work continues to be governed by the 1956 Act:
- literary, dramatic and musical works published posthumously;
- engravings published posthumously;
- published photographs and photographs taken before 1 June 1957;
- published sound recordings and sound recordings made before 1 June 1957;
- published films and registered films;
- anonymous and pseudonymous literary, dramatic, musical or artistic works (other than photographs) where these have been published and unless the identity of the author becomes known.
Copyright in the following types of work lasts until 31 December 2039:
- unpublished literary, dramatic and musical works of which the author has died (unpublished in the sense of the proviso to s. 2(3) of the 1956 Act);
- unpublished engravings of which the author has died;
- unpublished photographs taken on or after 1 June 1957;
- unpublished sound recordings made on or after 1 June 1957, unless they are released during the period of copyright;
- films which were neither published nor registered, unless they are released during the period of copyright;
- works of universities and colleges which were protected by perpetual copyright under the Copyright Act 1775 c. 53.
The Act codifies the principle of secondary infringement, that is knowingly enabling or assisting in the infringement of copyright, which had previously been applied at common law (see R v Kyslant
). Secondary infringement covers:
- importing infringing copies (s. 22);
- possessing or dealing with infringing copies (s. 23);
- providing means for making infringing copies (s. 24);
- permitting the use of premises for infringing performances (s. 25);
- providing apparatus for infringing performances (s. 26).
Chapter III of Part I of the Act provides for a number of situations where copying or use of a work will not be deemed to infringe the copyright, in effect limitations on the rights of copyright holders. The existing common law
defences to copyright infringement, notably fair dealing
and the public interest defence
, are not affected (s. 171), although many of the statutory permitted acts would also qualify under one of the common law defences: the defence of statutory authority
is specifically maintained in section 50. This chapter of the Act has been substantially modified, notably by the Copyright and Related Rights Regulations 2003
No. 2498 transposing the EU Copyright Directive
: the description below is of the Act as it received Royal Assent.
In general, copying for educational use (including examination) is permitted so long as it is performed by the person giving or receiving instruction (s. 32) or by the education establishment in the case of a broadcast (s. 35): however, reprographic copying is only permitted within the limit of 1% of the work per three-month period (s. 36). Works may be performed in educational establishments without infringing copyright, provided that no members of the public are present (s. 34): the parents of pupils are considered members of the public unless they have some other connection with the establishment (e.g., by being teachers or governors). Further provisions are contained in secondary legislation.
Libraries and archives
Librarians may make and supply single copies of an article or of a reasonable proportion of a literary, artistic or musical work to individuals who request them for the purposes of private study or research (ss. 38–40): copying of the entire work is possible if it is unpublished and the author has not prohibited copying (s.–43). They may also make and supply copies to other libraries (s. 41) and make copies of works in their possession where it is not reasonably possible to purchase further copies (s. 42). The detailed conditions for making copies are contained in secondary legislation, currently the Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989
Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purposes of a Royal Commission
or statutory inquiry
(ss. 45, 46). The Crown may make copies of works which are submitted to it for official purposes (s. 48). Material which is open to public inspection or on an official register may be copied under certain conditions: this includes material made open to public inspection by the European Patent Office
and by the World Intellectual Property Organisation
under the Patent Cooperation Treaty
, and material held as public records
under the Public Records Act 1958
c. 51 or similar legislation (s. 49).
Designs and typefaces
The copyright in a design document is not infringed by making or using articles to that design, unless the design is an artistic work or a typeface (s. 51). If an artistic work has been exploited with permission for the design by making articles by an industrial process and marketing them, the work may be copied by making or using articles of any description after the end of a period of twenty-five years from the end of the calendar year when such articles were first marketed (s. 52). It is not an infringement of the copyright in a typeface to use it in the ordinary course of printing or to use the material produced by such printing (s. 54).
The following are also permitted acts (the list is not exhaustive):
- Fair dealing in a work for the purposes of private study or research (s. 29)
- Fair dealing in a work with acknowledgment for the purposes of criticism or review or, unless the work is a photograph, for the purposes of news reporting (s. 30);
- Incidental inclusion of copyright material in another work (s. 31);
- Public reading or recital by a single person with acknowledgment (s. 59);
- Copying and distribution of copies of the abstracts of scientific and technical articles (s. 60);
- Recordings of folksongs for archives (s. 61);
- Photographs, graphic works, films or broadcasts of buildings and sculptures in a public place (s. 62);
- Copying and distribution of copies of an artistic work for the purpose of advertising its sale (s. 63);
- Reconstruction of a building (s. 65)
- Rental of sound recordings, films and computer programs under a scheme which provides for reasonable royalty to the copyright holder (s. 66);
- Playing of sound recordings for the purposes of a non-commercial club or society (s. 67);
- Recording for the purposes of time-shifting (s. 70);
- Free public showing of broadcasts (s. 72);
- Provision of subtitled copies of broadcasts for the handicapped by designated bodies (s. 74);
- Recording of broadcasts for archival purposes (s. 75).
The Act creates a specific regime of moral rights
for the first time in the United Kingdom: previously, an author's moral right had to be enforced through other torts
, e.g. defamation
, passing off
, malicious falsehood
. The author's moral rights are:
- the right to be identified as the author or the director, right which has to be "asserted" at the time of publication (ss. 77–79);
- the right to object to derogatory treatment of work (ss. 80–83);
- the right to object to false attribution of work (s. 84);
- the right to privacy of certain photographs and films (s. 85).
The moral rights of an author cannot be transferred to another person (s. 94) and pass to his heirs on his death (s. 95): however, they may be waived by consent (s. 87). The right to object to false attribution of work last for twenty years after a person death, the other moral rights last for the same period as the other copyright rights in the work (s. 86).
Enforcement of copyright
Infringement of copyright is actionable by the copyright owner as the infringement of a property right (s. 96) or, in the case of infringement of moral rights
, as the tort
of breach of statutory duty
(s. 103). Damages
will not be awarded against an "innocent" defendant, i.e. one who did not know and had no reason to know that the work was under copyright, but other remedies (e.g. injunction
, account of profits
: Scots law
interdict, accounting and payment of profits) continue to be available (s. 97, see Microsoft v Plato Technology
). Orders are available for the delivery up
(Scots law: delivery) and disposal of infringing copies (ss. 99, 114): copyright owners may also seize such copies (s. 100). The making, dealing in or use of infringing copies is a criminal offence
(s. 107). Copyright owners may ask the HM Revenue and Customs
to treat infringing copies as "prohibited goods", in which case they are prohibited from import (s. 111).
The Act establishes the Copyright Tribunal
as a continuation of the tribunal established under s. 23 of the 1956 Act (s. 145). The Tribunal is empowered (s. 149) to hear and determine proceedings concerning:
An appeal on any point of law lies to the High Court, or to the Court of Session under Scots law.
Crown and Parliamentary copyrights
The Act simplifies the regime of Crown copyright
, that is the copyright in works of the United Kingdom government, and abolishes the perpetual Crown copyright in unpublished works of the Crown. It also creates the separate concept of Parliamentary copyright
for the works of the Parliament of the United Kingdom
and the Scottish Parliament
, and applies similar rules to the copyrights of certain international organisations.
Crown copyright last for fifty years after publication, or 125 years after creation for unpublished works (s. 163): however, no unpublished works of the Crown will come into the public domain until 31 December 2039, that is fifty years after the commencement of section 163. Acts of the United Kingdom and Scottish Parliaments and Church of England Measures are protected by Crown copyright for fifty years from Royal Assent (s. 164). Works of the Parliaments of the United Kingdom and of Scotland, except Bills and Acts, are protected by Parliamentary copyright for fifty years after creation: Bills are protected from the date of their introduction to the date of Royal Assent or of rejection (ss. 165–167, Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676). The works of the United Nations and its specialised agencies and of the Organisation of American States are protected for fifty years after creation (s. 168, Copyright (International Organisations) Order 1989 No. 989).
Part I of the Act (copyright provisions) extends to the whole of the United Kingdom
(s. 157). It has also been extended, with consequential amendments, by Order in Council
. Works originating (by publication or nationality/domicile of the author) in the Isle of Man
or in one of the following former dependent territories
qualify for copyright under the Act:
Apart from these provisions, all countries of origin whose works qualified for United Kingdom copyright under the 1911 or 1956 Acts continue to qualify under this Act (para. 4(3) of Schedule 1).
Rights in performances
Part II of the Act creates a series of performers' rights
in application of the
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations
of 1961. These rights are retrospective in respect of performances before commencement on 1 August 1989 (s. 180). These rights have been largely extended by the transposition of European Union directives
and by the application of the WIPO Performances and Phonograms Treaty
: the section below describes only the rights which were created by the Copyright, Designs and Patents Act 1988 itself.
A performer has the exclusive right to authorise the recording and/or broadcast of his performances (s. 182). The use or broadcast of recordings without the performer's consent (s. 183) and the import or distribution of illicit recordings (s. 184) are also infringements of the performer's rights. A person having an exclusive recording contract over one or more performances of an artist holds equivalent rights to the performer himself (ss. 185–188). Schedule 2 lists the permitted acts (limitations) in relation to these rights.
Rights in performances last for fifty years from the end of the year in which the performance was given (s. 191). They may not be assigned or transferred, and pass to the performer's executors on death (s. 192). An infringement of rights in performances is actionable under the tort of breach of statutory duty. Orders are available for the delivery up (Scots law: delivery) and disposal of infringing copies (ss. 195, 204): holders in rights in performances may also seize such copies (s. 196). The making, dealing in or use of infringing copies is a criminal offense (s. 198), as is the false representation of authority to give consent (s. 201).
Part III of the Act creates a "design right" separate from the registration of designs governed by the Registered Design Act 1949
. To qualify, the design must be original (not commonplace in the field in question) and not fall into one of the excluded categories (s. 213(3)):
- principles and methods of construction;
- articles which must connect with or otherwise fit another article so that one or the other may perform their function;
- designs which are dependent on the appearance of another article;
- surface decoration.
The design must be recorded in a document after 1989-08-01 (s. 213(6)): designs recorded or used before that date do not qualify (s. 213(7)).
The design right lasts for fifteen years after the design is recorded in a document, or for ten years if articles have been made available for sale (s. 216).
Part IV of the Act contains a certain number of amendments to the Registered Designs Act 1949
c. 88. The criteria for registration of a design and the duration of the registered design right (ss. 1 & 8 of the 1949 Act) are notably modified. Provisions are also added to allow ministers to take action to protect the public interest in monopoly
situations (s. 11A of the 1949 Act) and to provide for compensation for Crown use of registered designs (para. 2A to Schedule 1 to the 1949 Act). A consolidated version of the Registered Designs Act 1949 is included (s. 273, Schedule 4).
Part V of the Act provides for the registration of patent agents
and trade mark agents
and for the
of their communications with clients from disclosure in court. Part VI of the Act creates a system of patents county courts
for proceedings involving patents which are of a lesser financial implication.
Section 297 of the Act makes it an offense to fraudulently receive broadcasts for which a payment is required. Section 300 creates the offense of fraudulently using a trademark, inserted as ss. 58A–58D of the Trade Marks Act 1938 c. 22.
Section 301 and Schedule 6 contain an unusual, perpetual grant of the rights to collect royalties, proposed by Lord Callaghan of Cardiff, enabling the Great Ormond Street Hospital for Sick Children to continue to receive royalties for performances of "Peter Pan". The right to receive royalties was granted in the will of the author, J. M. Barrie, but expired with the normal copyright period on 31 December 1987.
There are numerous commencement dates for the different sections of the Act, detailed below. The provisions on copyright, rights in performances and design right came into force on 1 August 1989, while the registration of patent agents and trade mark agents came into force on 13 August 1990.
| Date of commencement
|| Authority for commencement |
| 15 November 1988
|| s. 301 and Schedule 6|
paras. 24 & 29 of Schedule 5
| s. 305(1) |
| 15 January 1989
|| ss. 293 & 294
|| s. 305(2) |
| 28 July 1989
|| ss. 304(4) & (6)
|| Copyright, Designs and Patents Act 1988 (Commencement No. 4) Order 1989 |
| 1 August 1989
|| Parts I–III|
Parts IV, VI & VII except for provisions mentioned elsewhere
Schedules 1–3, 5, 7 & 8 except for provisions below
| Copyright, Designs and Patents Act 1988 (Commencement No. 1) Order 1989 |
| 13 August 1990
|| Part V|
para 21 of Schedule 3
para. 27 of Schedule 5
paras. 15, 18(2) & 21 of Schedule 7
consequential repeals of Schedule 8
ss. 272, 295, 303(1) & (2) insofar as they relate to the above
| Copyright, Designs and Patents Act 1988 (Commencement No. 5) Order 1990 |
| 7 January 1991
|| paras. 1–11, 17–23, 25, 26, 28 & 30 of Schedule 5|
consequential repeals in Schedule 8
ss. 295 & 303(2) insofar as they relate to the above
| Copyright, Designs and Patents Act 1988 (Commencement No. 6) Order 1990 |
The Copyright, Designs and Patents Act 1988 (Commencement No. 2) and (Commencement No. 3) Orders 1989 are technical measures to allow the preparation of secondary legislation.
Transposition of European Union directives
The following regulations were made under the European Communities Act 1972
in order to implement European Union directives
in UK law.
- Copyright (EC Measures Relating to Pirated Goods and Abolition of Restrictions on the Import of Goods) Regulations 1995 No. 1445
Other modifying measures
Other secondary legislation
References and notes
- Section 304 of the CDPA.
- The Berne Convention came into force for the United Kingdom on 5 December 1887. The United Kingdom ratified the Paris Act of the Convention on 2 January 1990. The Paris Act extends to the Isle of Man from 18 March 1996. Source: WIPO
- Modifications to the duration of copyright were by transposition of Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, OJ no. L290 of 24 November 1993, p. 9.
- Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ no. L167 of 22 June 2001, p. 10, corrected by OJ no. L006 of 10 January 2002, p. 70.
- This does not apply if there is an approved licensing scheme which covers the broadcasts. See Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Open University) Order 2003 No. 187
- Copyright (Application of Provisions relating to Educational Establishments to Teachers) (No. 2) Order 1989 No. 1067 Copyright (Educational Establishments) Order 2005 No. 223
- Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989 No. 1212
- Copyright (Material Open to Public Inspection) (Marking of Copies of Maps) Order 1989 No. 1099 Copyright (Material Open to Public Inspection) (Marking of Copies of Plans and Drawings) Order 1990 No. 1427
- Copyright (Material Open to Public Inspection) (International Organisations) Order 1989 No. 1098
- Public Records (Scotland) Act 1937 c. 43. Public Records (Northern Ireland) Act 1923 c. 20 (N.I.).
- Copyright (Recordings of Folksongs for Archives) (Designated Bodies) Order 1989 No. 1012
- Copyright (Sub-titling of Broadcasts and Cable Programmes) (Designated Body) Order 1989 No. 1013
- Copyright (Recording for Archives of Designated Class of Broadcasts and Cable Programmes) (Designated Bodies) Order 1993 No. 74
- See also Copyright and Rights in Performances (Notice of Seizure) Order 1989 No. 1006
- See also Copyright (Customs) Regulations 1989 No. 1178 Goods Infringing Intellectual Property Rights (Customs) Regulations 2004 No. 1473
- See also Copyright Tribunal Rules 1989 No. 1129 Copyright Tribunal (Amendment) Rules 1991 No. 201 Copyright Tribunal (Amendment) Rules 1992 No. 467
- The Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676
- The Copyright (International Organisations) Order 1989 No. 989, ISBN 0-11-096989-8.
- The Copyright (Bermuda) Order 2003 No. 1517, ISBN 0-11-046509-1.
- The Copyright (Gibraltar) Order 2005 No. 853, ISBN 0-11-072694-4.
- The Copyright (Application to the Isle of Man) Order 1992 No. 1313, ISBN 0-11-024313-7.
- Botswana, the Seychelles, the Solomon Islands and Uganda have been removed from the list of countries enjoying qualification as former dependent territories with respect to the list which applied for the 1956 Act: The Copyright (Status of Former Dependent Territories) Order 1990 No. 1512, ISBN 0-11-004512-2.
- See also Copyright and Performances (Application to Other Countries) Order 2006 No. 316
- The United Kingdom became a party to the Rome Convention on 18 May 1964 subject to a declaration concerning Articles 5(1)(b), 6(2) and 16(1)(a)(ii), (iii) and (iv) [Le Droit d'auteur, 1963, p. 244]. The convention extends to Gibraltar and Bermuda with the same declaration [Copyright, 1967, p. 36; Copyright, 1970, p. 108], and to the Isle of Man (with effect from 28 July 1999). Source: WIPO
- The application of the WIPO Performances and Phonograms Treaty in UK law is made by the Performances (Moral Rights, etc.) Regulations 2006 No. 18.
- This provision has been extended to Guernsey: Fraudulent Reception of Transmissions (Guernsey) Order 1989 No. 2003
- The Copyright, Designs and Patents Act 1988 (Commencement No. 4) Order 1989 No. 1303
- The Copyright, Designs and Patents Act 1988 (Commencement No. 1) Order 1989 No. 816
- The Copyright, Designs and Patents Act 1988 (Commencement No. 5) Order 1990 No. 1400
- The Copyright, Designs and Patents Act 1988 (Commencement No. 6) Order 1990 No. 2168
- The Copyright, Designs and Patents Act 1988 (Commencement No. 2) Order 1989 No. 955 The Copyright, Designs and Patents Act 1988 (Commencement No. 3) Order 1989 No. 1032
- Design Right (Semiconductor Topographies) Regulations 1989 No. 1100, amended by the Design Right (Semiconductor Topographies) (Amendment) Regulations 2006 No. 1833
- Copyright (Computer Programs) Regulations 1992 No. 3233
- Copyright and Related Rights Regulations 1996 No. 2967
- The Duration of Copyright and Rights in Performances Regulations 1995 No. 3297, ISBN 0-11-053833-1.
- Copyright and Rights in Databases Regulations 1997 No. 3032, amended by the Copyright and Rights in Databases (Amendment) Regulations 2003 No. 2501
- The Copyright and Related Rights Regulations 2003 No. 2498, ISBN 0-11-047709-X.
- The United Kingdom lost a "failure to transpose" case in the European Court of Justice with respect to Directive 2001/29/EC: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case C-88/04), OJ no. C045 of 19 February 2005, p. 11.
- Artist's Resale Right Regulations 2006 No. 346
- Intellectual Property (Enforcement, etc.) Regulations 2006 No. 1028
- Copyright (EC Measures Relating to Pirated Goods and Abolition of Restrictions on the Import of Goods) Regulations 1995 No. 1445
- The Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676
- Conditional Access (Unauthorised Decoders) Regulations 2000 No. 1175
- For commencement, see the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 (Commencement) Order 2002 No. 2749
- For commencement, see the Copyright (Visually Impaired Persons) Act 2002 (Commencement) Order 2003 No. 2499
- For commencement, see the Legal Depost Libraries Act 2003 (Commencement) Order 2004 No. 130
- Re-use of Public Sector Information Regulations 2005 No. 1515
- Performances (Moral Rights, etc.) Regulations 2006 No. 18