#1683 - Copyright Permitted Acts And Defences - Intellectual Property Law

5. Permitted acts and defences?

‘Exceptions’: Provisions that allow a person to carry out an exclusive act in relation to a copyright work, without having to remunerate the owner.

‘Limitations’: Provisions that allow a person to do an exclusive act, in return for paying remuneration of some kind.

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1a) Fair dealing for the purposes of research or private study

+ Lord Phillips: In judging what is fair one should be flexible not just bound by precedent.

‘Non-commercial’ purposes:

• HMSO & Ordnance Survey v. Green Amps Ltd [2007]; (noted [2008] EIPR 162];

Facts: One licensee of the Ordnance Survey maps was a university student, employed by GA during the holidays. Students used maps whilst doing tasks for GAs and at university. GA kept password and downloaded the product without payment. GA was trying to develop a mapping tool. GA’s acts were not licensed – tried to argue mapping tool was research.

Decision: Court held; section required that what would otherwise be an act of infringement was for act of research and a non-commercial purpose. GA would sell mapping tool so commercial. Anyway GA actions were not fair dealing, shown by covert nature of copying.

What is the meaning of ‘research’ and ‘private study’? How far is private study inherently non-commercial?

• *Sillitoe v. McGraw-Hill [1983];

Facts: M published study notes for use in exam preparation. These included extracts from the set texts which amounted to at least 5% of the work and were accompanied by brief explanations. This was a low ratio of explanation-extract.

Decision: Research – Private study must be inherently non-commercial. Study must be D’s. Others cannot rely on the exception – people to who they sold the books relied on it.

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1b) Fair dealing for the purpose of criticism or review

Orthodox position – does not cover criticism of the author of a work. Explanation of the work not same as criticism.

• *Sillitoe v. McGraw-Hill [1983]; Criticism or review – Held that the book was intended as a substitute for buying the published text. If it had been intended as a companion there would have been no need for the inclusion of extensive extracts.

• *Pro Sieben Media v. Carlton UK (CA) [1999];

Facts: There was a news story concerning a woman who was carrying 8 babies as a result of fertility treatment. Several companies were willing to pay large sums for the publicity rights. PS made a TV program about the woman which was criticised as cheque-book journalism. This case concerned a second TV program made by Carlton TV who used a 30 second clip from PS’s program. Carlton TV’s programme was critical of PS for having paid the woman for exclusive rights, depending on how many children survived.

Issue: Did this fall into the ‘criticism or review’ exception?

Decision: 1^st instance: held there was no intention to criticise the program, simply to criticise the claimant’s conduct so not fair dealing. CA disagreed: ‘expressions of wide and indefinite scope which should be interpreted liberally’. Stated that test was essentially an objective one, although the user’s subjective intentions and motives were relevant. Criticised the trial judge who had erred too much by focusing on the actual purposes and not enough on the Carlton programme’s likely impact on audience. Held the short extract was fair dealing and did not take advantage of PS’s exclusive right to the story.

Issue: Wide and indefinite scope? I can now criticise conduct. Arguably there is no difference between work/conduct.

• Banier v. News Group Newspapers [1997];

Facts: B (famous photographer) published a book of photos, including one of Princess Caroline. Photo published under licence in The Times. Published by Sun without a licence. Argued it was fair dealing and criticism of B’s book.

Decision: Held; it was just a photo, not criticism.

• IPC Media v. News Group Newspapers [2005];

Facts: IPC published a TV magazine. Sun advertised own rival magazine using IPC’s images (logo). D argued it was comparative advertising.

Decision: Held criticism of this type did not fall within the meaning of the section – all D needed to do was to refer to IPC to criticise not reproduce.

• Fraser-Woodward Limited v. BBC [2005];

Facts: 14 photos taken by F showing the Beckhams in off-guard moments. Published under licence. Tabloid Tales had a go at the Beckhams and showed 2-3 second shots of photos in show. BBC said their programme included criticism.

Decision: Mann J held; on facts, that the programmes did include criticisms of the photos themselves. Was not excessive use or impact of legitimate interests.

• Ashdown; The defence was not allowed here – parts from Ashdown’s memo was used to criticise the politics; for this defence however, it would only have been allowed in order to criticise the memo itself.

• Painer [2011]; Too obscure. Have British defences then Info Society Directive layered on top, and UK cannot do anything not permitted by Directive. Here Directive provisions were interpreted. Some might have bearing on interpretation of the UK provisions: E.g. Quotation exception in the Directive – you must name author unless imposs to do so. UK law has fairly dealing for criticism for review exception with requirement for acknowledgement. UK law defined in s.178 – name author and title, unless work published anonymously. In the light of AG in Painer about impossibility, requiring some attempt to be made to locate identity of the author, it could be arguable that that impossibility exception is no longer valid.

NB. Exception does not apply if work has not been made available to the public. Inappropriate if material obtained in breach of confidence:

• HRH Prince of Wales v. Associated Newspapers; Charles’ journals held to be unpublished even though he had given his diary to 75 people – not ‘available’. All those who had the journals knew that it was theirs in the strictest of confidence.

• Clockwork Orange; Can apply even if the work (or in this case because the work) is withdrawn from the public domain.

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1c) Fair dealing for the purpose of reporting current events

Rationale: Freelance photographers make a living from selling exclusive rights to their photos and that may make the issue newsworthy, otherwise would contravene Berne.

• Associated Newspapers v. News Group Newspapers [1986]; Publisher used death of Duchess of Windsor as an excuse to publish correspondence with Duke. Her death was historic event, not her position. This gave the public info which was interesting, not to keep it informed.

• HRH v. Associated Newspapers Ltd [2006]; HK journals published. Events no longer current in 2006. Even if they were the publication use was not fair for this purpose as it was in breach of confidence and excessive. Did not relate to any event.

• BBC v. British Satellite Broadcasting [1991];

Facts: BSP used live BBC broadcast of 1990 world cup football matches. BSB used excerpts from live BBC broadcasts as part of their sports programmes. BBC sued for infringement.

Decision: Scott J held World Cup important and no serious national news programme could ignore it so the match was an important event, and BSB did not use too much. Emphasised this was a special case and you could not use lengthy extracts as this would not be fair.

• PCR; C collected cocoa info. and produced reports and distributed them to subscribers. Court held perhaps the publication of the report was a current event, but too much was taken and dealing was not fair.

• Newspaper Licensing Agency v. Marks & Spencer (HL) [2001]; M argued it was a current event. All 3 CA judges were reluctant to see current event exception extended to cover commercial practices of this nature.

• World Cup Case; Must consider whether practice is reasonable in light of standard practice. Ruled typically 30 seconds of a football match is shown in news highlights.

+ Mance J: Doubted that this defence will have any application where the publication has been for commercial purposes.

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2) Incidental Inclusion

• Football Association Premier League v. Panini UK Ltd [2003];

Facts: P sells football stickers of premier league players wearing their club strip and logos. C (who held the exclusive licence in football stickers for the use of official emblems) lost tenders and accused D of copyright infringement.

Decision: Held the inclusion of logos was not incidental; you needed to show them in football strips. One must consider the incidental use at the time objectively when the sticker was used. It is irrelevant however, whether there was intention or not to do so.

+ Laddie: Suggested intent will be considered when dealing with sound on live broadcasts.

• IPC Magazines;

Facts: There was an advert for a woman’s magazine – D used a picture of their front cover.

Decision: This copy was allowed as it was near on essential to advertise it.

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1. Other Statutory Exceptions

S.31A: Visually...