Copyright, Designs and Patents Act 1988, section 72

Free public showing or playing of broadcast

Part I Copyright

(1)F235,F235The showing or playing in public of a broadcast . . . to an audience who have not paid for admission to the place where the broadcast . . . is to be seen or heard does not infringe any copyright in—

[F236 (a)the broadcast; [F237 orF237]

(b)any sound recording (except so far as it is an excepted sound recording) included in it F238...

F239(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F236]

[F240 (1A) For the purposes of this Part an “excepted sound recording” is a sound recording—

(a)whose author is not the author of the broadcast in which it is included; and

(b)which is a recording of music with or without words spoken or sung.

(1B)Where by virtue of subsection (1) the copyright in a broadcast shown or played in public is not infringed, copyright in any [F241 film orF241] excepted sound recording included in it is not infringed if the playing or showing of that broadcast in public—

(a)F242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)is necessary for the purposes of—

(i)repairing equipment for the reception of broadcasts;

(ii)demonstrating that a repair to such equipment has been carried out; or

(iii)demonstrating such equipment which is being sold or let for hire or offered or exposed for sale or hire.F240]

(2)The audience shall be treated as having paid for admission to a place—

(a)if they have paid for admission to a place of which that place forms part; or

(b)if goods or services are supplied at that place (or a place of which it forms part)—

(i)F243at prices which are substantially attributable to the facilities afforded for seeing or hearing the broadcast . . . , or

(ii)at prices exceeding those usually charged there and which are partly attributable to those facilities.

(3)The following shall not be regarded as having paid for admission to a place—

(a)persons admitted as residents or inmates of the place;

(b)F244persons admitted as members of a club or society where the payment is only for membership of the club or society and the provision of facilities for seeing or hearing broadcasts . . . is only incidental to the main purposes of the club or society.

(4)F245,F245Where the making of the broadcast . . . was an infringement of the copyright in a sound recording or film, the fact that it was heard or seen in public by the reception of the broadcast . . . shall be taken into account in assessing the damages for that infringement.

Definitions used in section 72 5

broadcast

(1) In this Part a “broadcast” means an electronic transmission of visual images, sounds or other information which—

(a)is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or

(b)is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,

Defined in s.6(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
author

(1) In this Part “author”, in relation to a work, means the person who creates it.

Defined in s.9(1) · see it in the full Act

“author”, in relation to a design, has the meaning given by section 2(3) and (4);

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

(3) In this Act the “author” of a design means the person who creates it.

Defined in Sch.4 para.38 · 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

Cases considering section 72 8

Football Association Premier League Ltd v QC Leisure & Ors

[2012] EWCA Civ 1708 · 20 December 2012Interprets

The section’s free public showing or playing defence formed the statutory context for the court’s analysis. The court refused to curtail its clear scope by judicial interpretation. (see paras [50]-[57]) The clear wording of section 72(1) covered any showing or playing in public of a broadcast to an audience that had not paid for admission. Its retention after the 2003 amendments indicated no implied restriction beyond the express sound-recording changes. (see paras [52]-[55]) The court noted that FAPL’s proposed limitation of section 72(1) could affect the defence concerning copyright in the broadcast itself. The point reinforced the significance of the proposed judicial alteration. (see para [54]) The court noted that FAPL’s proposed limitation of section 72(1) could affect the defence concerning copyright in sound recordings included in broadcasts. The point reinforced the breadth of the suggested statutory change. (see para [54]) Section 72(1)(c) provided a defence to the film-copyright claim under section 20 as well as section 19(3), because showing or playing in public and communication to the public overlapped. The court refused to imply a narrower limitation. (see paras [53]; [62]) Section 72(1B) was treated as an intended domestic implementation of the repair and demonstration exception. The proposed narrowing of section 72(1) would have deprived that provision of significant practical effect. (see para [56])

Phonographic Performance Limited v Candy Rock Recording Limited

[2000] EWCA Civ 97 · 30 March 2000Interprets

Section 72 created the relevant difference between the services: playing a broadcast to an audience that had not paid for admission generally did not infringe copyright, so many narrowcaster customers did not require a site licence. That statutory difference was a relevant factor in assessing unreasonable discrimination. (see paras [8]-[9]; [30]-[32]) Section 72(2) was referred to for the definition of circumstances in which payment for admission meant that a site licence was required for the public performance of a broadcast. It informed the incomplete-evidence concern identified by the Court. (see paras [9]; [33])

Football Association Premier League Ltd & Ors v QC Leisure & Ors

[2012] EWHC 108 (Ch) · 3 February 2012Interprets

Interprets the free public showing defence as applying to any copyright in a film included in a broadcast, not merely to infringement under section 19. It therefore provided a complete defence to the film-copyright claims under section 20 where no admission fee had been paid. Confirms that showing or playing a broadcast to an audience who have not paid for admission does not infringe copyright in any film included in it. The court rejected a proposed limitation to analogue uses.

What each judgment says about section 72 is in the case-law panel in the full Act.

Amendments and notes

12 notes from legislation.gov.uk

Amendments

  1. F234Words in s. 72 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)
  2. F235Words in S. 72(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)
  3. F236S. 72(1)(a)-(c) substituted (31.10.2003) for s. 72(1)(a)(b) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 21(1)(a) (with regs. 31-40)
  4. F237Word in s. 72(1)(a) inserted (15.6.2016) by The Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 (S.I. 2016/565), regs. 1, 3(a)
  5. F238Word in s. 72(1)(b) omitted (15.6.2016) by virtue of The Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 (S.I. 2016/565), regs. 1, 3(b)
  6. F239S. 72(1)(c) omitted (15.6.2016) by virtue of The Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 (S.I. 2016/565), regs. 1, 3(c)
  7. F240S. 72(1A)(1B) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 21(1)(b) (with regs. 31-40)
  8. F241Words in s. 72(1B) inserted (15.6.2016) by The Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 (S.I. 2016/565), regs. 1, 3(d)
  9. F242S. 72(1B)(a) omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010 (S.I. 2010/2694), art. 4(1)
  10. F243Words in S. 72(2)(b)(i) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)
  11. F244Words in S. 72(3)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)
  12. F245Words in S. 72(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)