Copyright, Designs and Patents Act 1988, section 28A

Making of temporary copies

Part I Copyright

Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable—

(a)a transmission of the work in a network between third parties by an intermediary; or

(b)a lawful use of the work;

and which has no independent economic significance.F92]

Definitions used in section 28A 8

literary work

“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes—

Defined in s.3(1) · see it in the full Act
database

(1) In this Part “database” means a collection of independent works, data or other materials which—

(a)are arranged in a systematic or methodical way, and

(b)are individually accessible by electronic or other means.

Defined in s.3A(1) · see it in the full Act
artistic work

(1) In this Part “artistic work” means—

(a)a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

(b)a work of architecture being a building or a model for a building, or

(c)a work of artistic craftsmanship.

Defined in s.4(1) · see it in the full Act

“artistic work” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 ;

Defined in Sch.4 para.38 · see it in the full Act
published edition

(1) In this Part “published edition”, in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works.

Defined in s.8(1) · see it in the full Act
sound recording

(1) In this Part “sound recording” means—

(a)a recording of sounds, from which the sounds may be reproduced, or

(b)a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced,

Defined in s.5A(1) · see it in the full Act

“sound recording” means—

Defined in s.5(1) · see it in the full Act
film

(1) In this Part “film” means a recording on any medium from which a moving image may by any means be produced.

Defined in s.5B(1) · see it in the full Act

“film” means a recording on any medium from which a moving image may by any means be produced.

Defined in s.5(1) · see it in the full Act
made

(2)Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

Defined in s.3(2) · see it in the full Act
copy

(1)The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

Defined in s.17(1) · see it in the full Act

Cases considering section 28A 8

The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors

[2011] EWCA Civ 890 · 27 July 2011Interprets

Interprets the temporary-copy exception as requiring cumulative conditions. Copies voluntarily made to receive and read a work were not integral to the technological process and had independent economic significance (see paras [30]-[35]).

Roadget Business Pte Ltd & Anor v Whaleco UK Limited

[2026] EWHC 2165 (Ch) · 13 August 2026

The court held that temporary copies made during ordinary web browsing satisfied the statutory conditions, including the absence of independent economic significance. (see paras [227]-[239]) The court accepted that browsing copies enabled transmission in a network by an intermediary or a lawful use of the work, satisfying the relevant statutory purpose. (see paras [227], [230]-[231]) The court accepted that ordinary browsing involved a lawful use of the photographs for the purposes of the temporary-copy exception, absent exploitation of the temporary copies themselves. (see paras [230]-[239])

ITV Broadcasting Ltd & Ors v TVcatchup Ltd & Anor

[2011] EWHC 2977 (Pat) · 14 November 2011

Applies the temporary-copy defence to transient copies lacking independent economic significance, but leaves its success dependent on whether the underlying use is lawful. Advertising revenues did not confer independent economic significance on the copies. (see paras [24], [28]–[31])

What each judgment says about section 28A is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F92S. 28A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 8(1) (with regs. 31-40)