UK Copyright infringement exceptions – how the
changes will affect you.
Peter Wienand, Partner, Farrer & Co LLP
As of 1 June this year, the first of five new statutory instruments governing exceptions to UK copyright infringement came into effect. The changes to the relevant sections of the Copyright Designs and Patents Act 1988 (“CDPA”) apply to works including books, photographs, music and film and have the effect of broadening the available exceptions to infringing use.
These changes are the product of a number of Government consultations and the Hargreaves Review. The intention is to bring UK copyright law up to date, make it fit for purpose in the digital age, deliver economic growth, and confer greater freedom on the activities of bodies such as museums and libraries for the dissemination, archiving and preservation of works they hold.
A welcome side-effect may be to restore public confidence in the law of copyright – as opposed to the growing perception, particularly among the digital generation, that it comprises a series of arbitrary and unenforceable rules. Already in force are changes concerning use for Research, Education, Libraries and Archives, as well as material open to public inspection and new exceptions for the Disabled. As of 1 October 2014 it is intended that exceptions for Quotation and Parody and Personal Copies for Private Use will follow.
This briefing summarises the key changes likely to affect businesses, publishers, individuals and institutions who deal in copyright works. Certain changes will be more relevant to some users and rights holders than others: so to make the most vital points accessible to those they most affect, the text is searchable by the following table of contents.
1. Personal Copies for Private Use 2
2. Caricature, Parody or Pastiche 2
3. Quotation 3
4. Research and Private Study 4
5. Education and Teaching: 4
6. Libraries and museums: archiving and Preservation 5
7. Public Administration 7
8. Accessible Formats for disabled people 7
9. Recordings of folksongs 8
10. What is fair dealing? 9
11. SUMMARY 10
In force as of 1 June 2014:
The Copyright and Rights in Performances (Disability) Regulations 2014
The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 The Copyright (Public Administration) Regulations 2014.
In force from 1 October 2014 (expected):
The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014
1. Personal Copies for Private Use
Anyone who 'burns' a CD album to their laptop or uploads those files to their mp3 player is, at the time of writing, technically infringing copyright. There is no moral stigma to this activity, and nor have record companies found any effective way to police it: but the fact that the law is so openly flouted is hardly healthy for the public perception of what copyright is and why it matters. It also indicates that the law as it stands is no longer fit for purpose.
The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 introduces a new section 28B to the CDPA. This will allow an individual to copy a work (except a computer program) provided that the copy is the person’s own copy of a work which was lawfully purchased or downloaded on a permanent basis (therefore excluding borrowed, rented, broadcast or streamed works). This applies equally to copies of copies, providing the copy in question is made from a lawful personal copy of the work.
Importantly, such copying may only be for private use and not for essentially commercial purposes (even indirectly). It should be easy enough to identify uses which clearly are, within the intention of the new Regulations, either commercial or public (e.g. re-sale of personal copies, marketing, distribution or sharing online) or non-commercial and private (e.g. home music libraries). However, it is also possible to think of uses which might fall into a grey area. This exception is intended to bring the law in line with the actual use that consumers make of digital media and allow people to make private copies for format shifting (e.g. uploading music CD contents to home computers as MP3 files), making back-up copies (e.g. saving DVD films onto a computer hard drive) or electronic storage purposes (including 'cloud' storage).
However, absent the copyright owner's consent (say, under the terms of an end user licence), users will not be permitted to transfer a personal copy of the work to another individual except on a 'private and temporary' basis. So you can format shift a CD into MP3 files, and lend someone your MP3 player, but not share those MP3 files with your friends online. Nor (arguably) can you send them to another person's device – although the definition of 'temporary' is perhaps open to interrogation.
Nor can you sell or give away your original copy of the work (say, a rare piece of vinyl) whilst retaining your own personal copy made from that original on some other format. Otherwise, in either of the cases above, the personal copy then becomes an infringing copy – even if it was originally created under the exception.
This change should also ensure that, as well as the individual users, companies who manufacture any devices which allow such private copying will not be liable under the CDPA.
Also of interest to consumers, but of concern to publishers and rights holders, is that the amendment now renders unenforceable any contractual term which purports to prevent an act of copying that would normally fall under the exception. This is a significant shift in the balance of rights, and renders ineffective all 'notices' on CDs, records and DVDs which prohibit that any copies be made.
It is worth noting that computer programs are excluded from this exception. Software product licences already permit, in certain cases, the making of single copies for private 'back-up' purposes: this is more complex area of end user rights which is governed by the existing EU Software Directive.
2. Caricature, Parody or Pastiche
The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 create a new section 30A (Caricature, parody or pastiche) – fair dealing with a work (or, under Schedule 2 paragraph 2A, a performance or recording) for the purposes of caricature, parody or pastiche is not an infringement. Rights holders are unable by contract to prevent or restrict the use of their work for such acts.
An arguably unhelpful aspect of the new provision is that, contrary to the first draft of the amendment, the exception is still tied to what may be deemed 'fair dealing'. As ever, it is easy enough to apply to rule at the extreme ends of the scale. Use of a few lines from a book or film for a parody sketch is considered fair use; use of a whole recording, doubtful. But would the use of a song melody be fair – or would it need a licence?
In practical terms, the digital age allows a great deal of editing, overlaying, re-mixing, digital creation and copying from other sources, which can make for blurred lines. Among the examples discussed in the consultations for these new Regulations were parody versions of hit music videos on YouTube. Yet it is doubtful this extent of use of a work or performance (e.g. similar or identical parts re-recorded with spoof lyrics) would fall within the previously accepted parameters of fair dealing for the purposes of, say, criticism or review.
The somewhat elastic definition of fair dealing is discussed in more detail at part 10 below, but it is a potentially challenging concept to apply to satire and lampoon – a form of expression which is often at its most powerful when it is being less than fair, or indeed proportionate.
Unlike the section 30 exceptions, there is no requirement here for sufficient (or any) acknowledgement of the original source material. It is not always practical or desirable for satirists to acknowledge their targets explicitly. That said, if the source material being referenced is not immediately obvious, it may be argued that the use could not fairly qualify as caricature, parody or pastiche in the first place – and so it would not come under the exception.
Another notable absentee from this new exception (still applicable to criticism, review and quotation under section 30) is any requirement for a work to have previously been made available to the public. In theory this could open up the path to 'spoiler' parodies, although if any confidential information was used it could still be actionable. It may be that forthcoming or unreleased movies, musicals, books or albums are considered a fertile ground for speculative parody or 'fan fiction' – hence allowed by Parliament under the exception. But if the parody used actual material not yet released to the public, a Court might very well consider it was not being 'fair'.
It must be noted also that – although a stated intention behind this change in law was to stimulate economic growth through creativity – 'fair dealing' suggests non-commercial dealing (or at least, a use which does not compete with the legitimate economic interests of the rights holder). It is hard to reconcile these two viewpoints, so expect this area to be rigorously tested should commercial success follow on the heels of any viral parody relying on this section. The worlds of publishing, advertising and marketing will be looking on with interest.
Finally, creatives should be wary: whether or not Parliament intended a narrow or a wider ambit to the notion of 'fair dealing', this exception does not create a 'carte blanche' for parody. Other areas of the law such as defamation, passing-off and trade mark use (not in accordance with honest business practices) may all come into play and give potential complainants alternative bases of claim.
In conclusion, the question remains as to whether (i) 'fair dealing' is intended as a more permissive concept under this new category of exception, to allow greater leeway in the name of satire (or at least affectionate send-up); or whether (ii) the new section 30A merely expands the range of acceptable purposes for 'fair dealing', in line with it as presently understood: that is, limited in measure, and generally non-commercial. This question is dealt with further in part 10 below.
It may not have been the intention of Parliament, but until the new law is tested, a conservative approach to use of copyright works is recommended in relying on the section 30A exception – even though a cautious satirist rarely makes for a good one.
3. Quotation
The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 also make an addition to section 30 (Criticism, review, quotation and news reporting) of new subsection (1ZA) – from 1 October 2014, use of a quotation (for criticism or review or otherwise) will not be an infringement provided that (i) the work has been published, (ii) using the quotation is “fair dealing”, (iii) the length of the quotation is no more than required, and (iv) it is accompanied by a sufficient acknowledgment. The amendment also renders unenforceable any contractual term which purports to prevent use of such a quotation.
This provides a greater freedom for authors, journalists and editors to quote others and, although there are several listed conditions to the exception, the application of this section is relatively straightforward. It is likely that 'fair de aling' should be interpreted in line with the similar exceptions found elsewhere in section 30. Quotation of a title or short
extract will be considered fair, for example, if sufficiently acknowledged. But copying a long extract from a book may not be permitted unless it can be justified in context.
It is worth considering this last factor – that the extent of the quotation should be 'no more than is required by the specific purpose for which it is used'. This requirement provides a little more clarity than just 'fair dealing': it is a purposive, pragmatic test that seems to allow flexibility so long as the intention justifies the extent of use. However, the use must still be fair dealing, so the effect is not to expand the exception but to limit it.
The two factors can be viewed as somewhat self-reflexive: fair dealing should be measured by reference to the purpose for which an excerpt has been quoted; but if the purpose itself is not fair, it will not qualify for the exception. This section is not a back-door to creating an unlicensed anthology.
One pragmatic consideration comes in the need for a specific acknowledgment – this is not an absolute requirement where it would be 'impossible for reasons of practicality or otherwise'. An example might be if the identity of the owner cannot be established.
As was already the case with criticism or review, a user is also not entitled to quote any work before it has been made available to the public, which allows rights holders to protect their right to first publication (and ensures they have another footing, other than breach of commercial confidence, to enforce against unauthorised leaks).
4. Research and Private Study
(i) Fair dealing for Research and Private Study: exception extended to cover all works
The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 amend section 29 (Research and private study). They remove the requirement for a work to be literary, dramatic, musical or artistic to qualify, and the exception now applies to all copyright works. Specifically this extends it to sound recordings, films and broadcasts.
Now "fair dealing" of a work for non-commercial research purposes is allowed provided that it is accompanied by a sufficient acknowledgement. Fair dealing under section 29 provides more leeway in the measure of use than the more public uses under section 30, but research and private study does not provide a free licence to the individual – you can't copy a whole DVD instead of buying a copy, to use an example cited by the IPO.
(ii) Making copies for text and data analysis for non-commercial research
The new section 29A also allows for copies to be made for text and data analysis for non-commercial research. A copy of a work lawfully accessed can be made only for computational analysis for non-commercial research purposes, and it must be accompanied by a sufficient acknowledgement. The status of any copy is similar to the status of a personal copy for private use under the new section 28B: that copy cannot be transferred to another person unless authorised by the copyright owner, and subsequent dealing (sale, letting, hire or offer or exposure for sale or hire) would be infringing.
For both (i) and (ii), the amendment again renders unenforceable any contractual term which purports to prevent such acts.
5. Education and Teaching
(i) illustration for instruction; (ii) recordings of broadcasts; (iii) non-commercial use of extracts.
The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 have made a change to section 32 (Illustration for instruction).
This new replacement section allows "fair dealing" with a work where its use is solely for illustration for the purpose of instruction – including setting examination questions, communicating answers to pupils and answering the questions. The use must be for non-commercial purposes, and should be accompanied by a sufficient acknowledgement. Once
again, the amendment also renders unenforceable any contractual term by the rights holder which purports to prevent such acts.
This may assist educators in distance learning, and displaying websites, quotes [or images] on interactive whiteboards (to use examples cited by the IPO) without seeking additional permissions.
The Regulations also make a change to section 35 (Recording by educational establishments of broadcasts). This new replacement section allows education establishments to make recordings of broadcasts (or copies of such recordings) for non-commercial educational purposes, without infringing copyright in the broadcast or any work included in it – provided the copy is accompanied with a sufficient acknowledgement. That copy can then be communicated by the educational establishment to pupils or staff for those purposes, which arguably brings the law into line with the realities of how many teachers operate.
However, importantly, the educational establishment still cannot make or use the copies above if licences are available for such acts which the establishment was aware of or should have been aware of. So it should not legitimise any attempt to obtain valuable resources for free. And of course any further dealing with such copies (sale, letting or hire or offer or exposure for sale or hire, or communication beyond that to its students and staff) is prohibited and will be an infringement.
Another change is made to section 36 (Copying and use of extracts of works by educational establishments) where, for non-commercial instruction purposes, educational establishments can copy extracts of a relevant work. Helpfully, the term 'extract' is clearly defined by reference to objective criteria: that is, no more than 5% of a work over any 12 month period. The extract must be accompanied by a sufficient acknowledgment.
Note that a relevant work for these purposes is a copyright work other than a broadcast – which falls under section 35 – or an artistic work (unless incorporated into another work). A work which incorporates another work is counted as a single work for these purposes.
Such copies can also be communicated to pupils or staff by the educational establishment for that non-commercial purpose, but this communication should be made by a closed secure electronic network.
However, as with recordings of broadcasts, the educational establishment cannot make or use the extract copies above if licences are available for such acts which the establishment was aware of or should have been aware of. Any further dealing with the above copy (sale, letting or hire or offer or exposure for sale or hire or communication beyond that to its students and staff) is prohibited and will be an infringement.
Any licences which seek to reduce the entitlement which can be copied to below 5% over 12 months will have no effect – regardless of whether they are on payment or free of charge.
6. Libraries and museums: archiving and Preservation
The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 deletes sections 37 (Libraries and archives: introductory), 38 (Copying by librarians: articles in periodicals), 39 (Copying by librarians: parts of published works) and 40 (Restriction on production of multiple copies of the same material).
The IPO's paper outlining these changes makes it clear what the intended benefit is: "This will make it easier for libraries, archives, museums and galleries to preserve their collections. They will be able to make copies of all types of creative works in their collections, in order to preserve them for future generations, when it is not reasonably practicable to purchase a replacement."
The relevant areas now in effect are sections 40A to 43. A new section 40B is created (Libraries and educational establishments etc: making works available through dedicated terminals) to permit institutions making copies available to visitors, students etc. through 'dedicated terminals' on their premises. This implements a provision in the Information Society Directive, which is intended to cover how library resources are now generally made available to visitors for the purposes of research.
The exception requires that such use via on-site terminals is for private study or research, and is made in compliance with any purchase or licensing terms to which the work is subject.
This section 40B defines which institutions are eligible, namely libraries, archives, museums and educational establishments. To qualify for the exception, the library must be either accessible to the public or the library of an educational establishment. The term 'museum' also encompasses galleries.
There are wholesale changes to section 41 (Copying by librarians: supply of single copies to other libraries), although these include changes which were already extant under separate regulations. A librarian can make a single copy of a published work (except an article in a periodical) and supply that to another library if (a) the requesting library is not-for-profit and (b) the librarian is not aware of (or cannot establish) the person who could authorise such copying. Of course the rights holder may not be the author, nor the original publisher, but that is where such enquiries should start. There are also wholesale changes to section 42 (Copying by librarians etc: replacement copies of works). A librarian, archivist or curator of a not-for-profit library, archive or museum may copy an item in that institution's permanent collection – held on premises for reference purposes and not accessible to the public, or only available on loan to other libraries, archives or museums – to preserve or replace the item (or replace an item lost, destroyed or damaged in the collection of another institution).
The exception will only apply where it is not reasonably practicable to purchase a copy of the item to achieve the above purpose: again, as seen throughout these exceptions, Parliament seeks to preserve the valuable commercial rights of rights holders where they are relevant.
Articles in periodicals, which do not fall under the section 41 exception, are covered by a new section 42A (Copying by librarians: single copies of published works) and 43A (Sections 40A to 43: interpretation). A librarian in a not-for-profit library can make and supply a single copy of one article in any one issue of a periodical, or a reasonable proportion of any other published work, in response to a form of written declaration believed to be true by the librarian. Such declaration should include a statement that the librarian has not been supplied with such a copy by any library; that it will be used for non-commercial research or private study; that they will not supply it to any other person; and that to the best of their knowledge no one the requestor works or studies with has made, or intends to make, a request for the same material. A false declaration to this effect will mean the exception does not apply and there will be an infringement.
There are wholesale changes to section 43 (Copying by librarians or archivists: single copies of unpublished works). A librarian or archivist can make a single copy of the whole or part of a work in response to a person who has provided a written declaration. Such declaration should include a statement that they have not been supplied with such a copy by any library, that it will be used for non-commercial research or private study and they will not supply it to any other person.
The exception only applies if the work was not published before it was deposited in the library or archive. It does not apply where the copyright owner has not consented to such copying and the librarian should have been aware of this. A false declaration will again mean the exception does not apply and there will be an infringement.
It is worth noting that for all the copying exceptions above (sections 41, 42, 42A and 43), any charge made for such copying must be calculated by reference to the costs of producing the copy, while any contractual term purporting to prevent such copying is unenforceable.
There is a change to section 75 (recording of broadcast for archival purposes) meaning that a broadcast can be recorded or a copy of such broadcast made to place it in an archive maintained by a not-for-profit body and any contractual term purporting to prevent such copying is unenforceable.
7. Public Administration
The Copyright (Public Administration) Regulations 2014 insert new sub-sections 47(2) and (3) (material open to public inspection or on official register).
Where material is open to public inspection under a statutory requirement – or is on a statutory register – it will not be an infringement, by or with the authority of the appropriate person, to copy so much of the material as contains factual information. This applies as long as that copying does not involve issuing copies to the public.
The question may arise as to who the appropriate person is. In this case it will not be the author or publisher in the traditional sense, but someone administrating the material in an official function.
This exception has now been extended to allow:
(i) Material open to public inspection – copying, issuing copies to the public or making it available to the public electronically is allowed (with the permission of the appropriate person) in order to allow it to be inspected at a more convenient time or place, or otherwise facilitate the exercise of any right for which the statutory requirement was originally imposed. So a member of the public may be able to print off copies of records to take home for private study, or indeed access the material remotely via the appropriate website. (ii) Material on statutory register or open to public inspection of 'scientific, technical, commercial or economic
interest'. Again, there is no infringement in copying or making available as above with the appropriate permission, if it is not commercially available to the public.
It is worth noting that in neither case above will the exception apply to material which is otherwise commercially available to the public with the copyright owner's lawful consent.
New sub-sections 48(2) and (3) (material communicated to the Crown in the course of public business) state that similarly, works communicated to the Crown during public business can be copied, issued to the public and made available electronically to the public by the Crown provided that this is done for the purpose for which it was communicated to the Crown.
This will allow public bodies including the Crown to share third party copyright material online, and extends beyond issuing paper copies or allowing inspection at certain times. This will allow greater transparency and reduce the cost and expense in accessing such material.
8. Accessible Formats for disabled people
The Copyright and Rights in Performances (Disability) Regulations 2014 make significant changes and additions in sections 31A (Disabled persons: copies of works for personal use), 31B (Making and supply of accessible copies by authorised bodies), 31 BA (Making and supply of intermediate copies by authorised bodies) and 31BB (Accessible and intermediate copies: records and notification). 31C to 31F are deleted and there is a new 31F (Sections 31A to 31BB: interpretation and general).
As an initial point, the qualifying definition has been extended from 'visual impairment' to 'disability'. So this extends the exception beyond adaptations made for the visually impaired and includes the hard of hearing and other categories of disability.
Anyone with a physical or mental impairment which prevents them from enjoying a copyright work to the same degree as a person without that impairment (excluding visual impairment which can be corrected by reading glasses) will qualify as a disabled person under the act. Such a person can make, or have made for them, an accessible copy of a copyright work for their personal use.
'Accessible' means a copy which allows full enjoyment of the work, and can include features to navigate around the work – provided that such accessible copies are not commercially available on reasonable terms or with the copyright
owner’s consent. So once again, even in this area, the law seeks to protect the reasonable commercial rights of the copyright holder.
A person assisting a disabled person in making such a copy must not make a profit in doing so, and should do no more than recover their costs in making and supplying the copy. The transfer of an accessible copy to a non-disabled person is an infringement unless the copyright owner consents. The same applies to any subsequent dealing (sale, letting or hire, offer for sale or hire) in the copy.
To help ensure this, any accessible copy must state that it was made under section 31B CDPA, have a sufficient acknowledgment, and reproduce where possible any copy protection.
Authorised bodies – that is, educational establishments or not-for-profit bodies (such as a charities) – with lawful possession of copyright works can make and supply accessible copies of the work for the personal use of disabled persons, again provided that such copies are not commercially available on reasonable terms by or with the authority of the copyright owner. This includes making recordings of broadcasts.
Authorised bodies can supply (at cost price only) accessible copies to other authorised bodies for the purposes of them making a further accessible copy. But educational establishments conducted for profit should ensure that accessible copies made are used only for educational purposes.
Importantly, authorised bodies are required to maintain records (which can be inspected by the copyright owner) of the accessible copies they make, and the persons to whom such copies are supplied. They should also notify any collecting society or the copyright owner when an accessible copy is made. Therefore the record-keeping obligation with this exception is quite onerous.
The amendment also renders unenforceable any contractual term which purports to prevent such use.
The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 now deletes section 74 (provision of sub-titled copies of broadcast). That provision allowed designated bodies to make subtitled or otherwise accessible copies for disabled persons.
9. Recordings of folksongs
The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 make changes to section 61 (recordings of folksongs). Folksongs had already been the subject of special rules under the CDPA, to facilitate the preservation of cultural heritage, but only in respect of government-designated bodies. The new regulations amplify the exception and extend it to any archive maintained by a body not established or conducted for profit.
This exception allows charities and not-for-profit bodies to make a sound recording of a song's performance – say, a live performance at a folk festival or in a town hall – for archival purposes, where the words are unpublished and of unknown authorship (i.e. of folk origin). This will not infringe either the lyrics or the music, providing it is also not prohibited by any performer and the recording does not infringe any other copyright.
An example of how the recording might inadvertently infringe other copyright could range from words or background music picked up by the recording (other than purely incidental), to the inclusion in the performance of a distinctive guitar part or chorus from a protected work of known authorship – which, given the nature of folk music, might create something of a minefield.
The performers' rights are preserved in so far as they have, in effect, a right of veto as to the making of the recording. They will of course retain their normal performers' rights as against bodies for profit or any commercial, non-archival use. But section 61 provides more as a 'negative' right where not-for-profit bodies are concerned, as opposed to an outright permission. What is not entirely clear is how actively a would-be archivist should sound out the performers for any possible objection, either at the point of recording, or subsequently. There is no specific provision for notice, only prohibition.
It is worth noting that a copy of such recording can be supplied by an archivist in response to a formal written request made for non-commercial research or private study use only. The formalities for this process are set out in the amended Act, but it involves the applicant making a declaration as to their identity and their purpose for having the copy, and is limited to one copy per person.
The archive is entitled to make a charge for supplying a copy in this way, but that right is explicitly limited to covering their attributable costs of producing it.
10. What is fair dealing? (i) The historic position
Fair dealing, as Hart J noted in IPC v News Group Newspapers Limited [2005] EWHC 317, "is an elusive concept". There is no statutory definition, and the categories which statute does give us – such as "criticism or review" or "reporting current events" – hardly assist in nailing it down. These categories "should be interpreted liberally, and their precise boundaries cannot be plotted" (Copinger and Skone James on Copyright). The hard and fast rules demanded by certainty do not exist, for either users or rights holders.
A trial judge will exercise his or her own judgment after taking into account a number of factors which are not necessarily determinative in themselves. This is a balancing act which not every user working to a deadline can realistically be expected to go through, which is why conservative values have generally been adopted – to take the trial judge out of the equation.
The world of publishing, for example, has developed 'rules of thumb' as to what it considers safe, and what actionable, in quantities of words (which will vary from lyrics to poems to novels). While these may not sit four-square with academic legal analysis, they are by and large observed by writers and editors. But contrary to this conventional wisdom, fair dealing is not measured by an objective 'quantum'. Nor is it an even standard across all categories of use – or all media.
So for example: with the existing exceptions it is generally held that the expectation of what is fair under the section 30 (criticism, review and news reporting) will be more limited than under section 29 (research and private study). The reasoning is clear enough: private study may necessitate more wholesale copying, without causing damage to the owner. But even within the various categories of fair dealing, the case law suggests that context is all.
The extent of use is certainly relevant, although its relevance depends on the circumstances (Hubbard v Vosper [1972] 2 Q.B. 84). Fair dealing is not only a question of degree, but one of fact and impression (Beloff v Pressdram Ltd [1973] RPC 765). The degree to which the use directly competes with the legitimate right of the copyright owner to exploit the work is a very important consideration. Finally, there is room in any individual case to consider a purposive element; as Copinger states, "[t]here may be some subjective consideration of what the user's purpose was."
Applying the practical lessons of how the CDPA has been interpreted, fair dealing may be characterised as a measure of proportionate, honest convention within the medium. The question may be asked: could the rights holder reasonably object to this? Is it costing them anything? What is commonly accepted practice? This is where 'industry conventions' begin to have force.
Like publishers and authors, journalists tend to know (and are expected to follow editorial guidelines on) what is legitimate to excerpt from a book, film or exhibition for a review, or to display for the purposes of reporting current events. So when it comes to applying the new exceptions, it is not too challenging to extend these principles to, say, quotation. But not every new exception lies on such tried and tested ground.
(ii) A new understanding of fair dealing?
As discussed in part 2 above, in the case of the new 'parody' exception, a conservative reading of the statute would argue that 'fair dealing' for these purposes is closer to the existing meaning for, say, criticism or review (since it is arguably a form of both). However, parody also involves the creation of new work in itself – a rewritten lyric, literary
figures in a new scenario, a famous movie scene re-imagined – even if important elements such as melody, plot, characters, or look and feel are retained.
These elements would normally constitute taking of a substantial part of a copyright work to a greater extent than is acceptable for the purposes of 'fair dealing', certainly by comparison to how the term has previously been applied in other contexts where the use is for wider public consumption.
If we take a purposive view – that is, considering what was necessary for the new work – the definition of 'fair' can be stretched quite far; but there is a question of whether any particular act of parody is necessary at all. If we say it is, for sound cultural reasons, what obligation is on the parodist to create 'new' copyright elements rather than take short cuts (re-using footage, score, dialogue, names, melody and so on)? And, as discussed above, convention in parody or caricature is not to be fair to the original in any sense of the word.
A more equitable reading might suggest that, to be legitimate, parody does not have to be polite; but it should not unfairly 'piggy-back' on the hard work of others for its own commercial gain. This analysis, however, is untested and gives no more than a rough map of where the law might be heading at this stage.
11. SUMMARY
Our view is that these amendments to the UK copyright regime – while unlikely to bring about fundamental changes to the way our clients do business – will nonetheless impact on the behaviour of the majority of consumers, publishers, writers and academic or cultural institutions in the sector. In some cases it will not change that behaviour, but it will effectively legitimise it (or at least, set out the framework in which such use of copyright works is permissible).
Some of the points will be more of interest culturally or in terms of best practice, rather than being of substantial economic impact. Others simply adapt the existing law to reflect new technology (or even not so new) such as mp3 files, electronic databases, government websites and computer terminals in libraries. However, some aspects feed into everyday commercial considerations – notably the provision across several parts of the new legislation that one cannot be made to contract out of these rights, and attempts to do so by rights holders will be unlawful and unenforceable.
One notable point which reflects current provisions, and supports the economic purpose of copyright, is the fact that several of these exceptions will not apply if there is a commercially available licence affording the same rights otherwise granted under the exception. In other words, these exceptions are not intended to undercut active, valuable copyrights, but to enable non-commercial use – and legitimise certain acts of copying where no commercial basis exists to do so (i.e. via the lawful rights holder).
In many cases it is simply a case of the law catching up with what is already the prevailing culture and technology. But while the changes have been widely trumpeted as 'common sense', it would perhaps be going too far to say this view will be universal. Although generally welcome, these new Regulations arguably represent a missed opportunity to move away from – or at least clarify – the murky definitions of 'fair dealing' in the UK copyright regime. Indeed, the term is if anything wider and more subjective than before.
If you require further information on anything covered in this bulletin please contact Peter Wienand ([email protected]; 0203 375 7355) or your usual contact at the firm on 0203 375 7000. Further information can also be found on the IP&Cpage on our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
