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In this, our next post in our series on the primary infringement of copyrighted works, we will be looking at the primary infringement of renting and lending copyrighted works to the public under the Copyright Designs and Patents Act 1988 (or “CPDA 1988”). This post will be divided into 2 parts:

  1. An explanation of the primary infringement of renting and lending copyrighted works to the public, which will include worked examples of when primary infringement may or may not occur
  2. Practical tips for both owners of copyright and potential infringers

An explanation of the primary infringement of renting and lending copyrighted works to the public

This particular primary infringement occurs if a non-authorized person rents or lends a copyrighted work to the public. Let’s divide this up and explore the meaning of the following areas:

  1. Renting
  2. Lending
  3. Copyrighted work
  4. The public

Renting

Renting is defined under the Copyright Designs and Patents Act 1988 as making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage.

A person would commit the primary infringement of renting a work to the public if, for example, they rented a copy of a pirated DVD to a friend for a couple of pounds on the condition that they returned  the DVD afterwards. This would be direct economic advantage. Indirect economic advantage could be, for example, two friends swapping pirated music CD’s on the condition that when each had finished with the other’s CD that they would return it.

Even should the other party not return the work as agreed it would infringe on copyright as the Copyright Designs and Patents Act 1988 states that it is infringement even if it “may” be returned – what matters is the intention of the party renting the copyrighted work at the time of the transaction. Whether the copyrighted work is actually returned or not is of no consequence.

Lending

Lending is defined under the Copyright Designs and Patents Act 1988 as making a copy of the work available for use on terms that it will or may be returned otherwise than for direct or indirect economic or commercial advantage through an establishment which is accessible to the public.

The primary infringement of lending is clearly aimed at the lending of works by educational establishments and public libraries. Private libraries would not be caught under the infringement of lending but of “renting” because they are lending the work for direct economic or commercial advantage. However, public libraries and educational establishments will not be infringing copyright if they charge what is necessary to cover the costs of running the establishment. Thus, your public library is not infringing on copyright for charging you £2 to rent a copy of “Jurassic Park” (although it’s a bit steep considering that you can purchase the DVD on Amazon for a comparable amount). However, if the public library charged more than was necessary to cover the costs of running the establishment (say £10 to rent a copy) and clearly making a profit then they may be infringing copyright.

What does not constitute renting or lending?

Making copies of the work available for:

  • The purpose of public performance, playing or showing in public or communication to the public. However, making a copy of a sound recording or a film to show it in public may be a secondary infringement;
  • Exhibition in public; or
  • On-the-spot reference use

Thus, showing “Jurassic Park” to a classroom of children would not infringe copyright. However, making a copy of this film to show to the children may infringe copyright. Further, displaying a copy of “Jurassic Park” in public (such as in a shop window) would not infringe copyright, nor would allowing library-users to view a copy of “Jurassic Park” at the library.

Which ‘types’ of copyright are caught?

The copyrighted works that this particular infringement applies to are:

  • Literary, Dramatic or Musical copyrighted works
  • Artistic copyrighted works (excluding architectural works and applied art)

It does not some copyrighted works i.e. broadcasts.

Practical tips

For copyright owners:

  1. If you think your copyright rights in your work are being infringed then get legal advice as soon as possible

For potential infringers:

  1. (Obvious point) Don’t pirate works. Secondly, don’t lend or rent pirated or original works to others
  2. Public libraries: be careful as to how much you charge for lending copyrighted works to the public

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