Does an audio book produced from a copyright protected literary work for personal use infringe copyright?
Original literary works, essentially including anything which is written, such as books or even online blogs, may be protected by copyright. Copyright arises automatically, and provided it meets the threshold of originality, gives the owner an exclusive right to copy and reproduce a substantial part of that work or the work in full (see sections 1, 2, 3 and 16 of the Copyright, Designs and Patents Act 1988 (CDPA)).
Under section 17 CDPA, it is an offence to reproduce a literary work in ‘any material form’, and under section 21 CDPA, an adaption of a literary work, whether recorded or otherwise, may also infringe copyright. It follows that, on the face of it, an exact or substantial reproduction of a literary work protected by copyright, as an audiobook, despite being in a different format, may infringe copyright.
What defences could apply?
The CDPA sets out various ‘permitted acts’ which provide a defence to copyright infringement. Here, the audio book is reproduced for personal use. Prima facie, personal use is not a permitted act in the UK, and may therefore still constitute copyright infringement.
However, the creator of the audio book may have a defence under section 31A CDPA, which states that it is a permitted act to copy an otherwise copyright protected work if a copy is made by or on behalf of a disabled person for personal use. Under section 76 CDPA, this also includes adaptions of the work. The section 31A exception applies provided that the person’s disability prevents the person from enjoying the work as a person who does not have that disability, and the same work is not commercially available on reasonable terms by or with the authority of the copyright owner.
If the audio book is created solely for the purpose of research and private study, by a student or researcher, the creator may be exempt from infringement under section 29 CDPA, provided it is fair dealing. Whilst the act does not define fair dealing, it is generally limited to extracts of a literary work, thus a copy of an entire book, as an audio book, is likely to fall outside this exemption.
What if the audio was reproduced between 1 October 2014 and 17 July 2015?
On 1 October 2014, section 28B CDPA implemented the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014, which provided that it was a permitted act to make a copy of a literary work for private use, provided the literary work was the individual’s own copy and for personal, non-commercial purposes. However, following the decision in R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin), 17 July 2015), section 28B was found unlawful, and subsequently quashed, taking effect on 17 July 2015. For any copies made between 1 October 2014 and 17 July 2015, the exemption may still apply.
Does it infringe moral rights?
Moral rights concern the right to be identified as the author of the copyright protected work. Sections 77(2)(a)-(b) CDPA provide that the author has the right to be identified where the literary work, including any adaptions, is published commercially or performed in public.
Here, the audio book is for personal use, and unless it is made commercially available or performed publicly, it is unlikely that the creator of the audio book has infringed moral rights.
Conclusion
In summary, reproducing an original copyright protected literary work as an audio book is likely to constitute infringement unless the creator can show that is a ‘permitted act’, such as, for example, providing access to a person with a disability, or if it was created between 1 October 2014 and 17 July 2015.
