Copyright and the defence of fair dealing under the Copyright, Designs and Patents Act 1988

The Copyright, Designs and Patents Act 1988 gives exclusive rights to the copyright owner for a period of time, enabling him to exploit the expression, or embodiment of his ideas.

In order for a creation to be protected under the Act, the work must fall within one of the following categories of work; literary work, dramatic to be musical work, artistic work, films, sounds recordings, broadcasts, and typographical arrangement of published additions. However, Chapter III of Part I of the Act provides for a number of situations where copying or use of a work will not be deemed to infringe the copyright, in effect limitations on the rights of copyright holders. One of the defence to infringement is fair dealing.

The defence arise in cases where the copyright infringement is for the purposes of non-commercial research or study, criticism or review, or for the reporting of current events. Fair dealing originates in Sections 29 and 30 of the Copyright, Designs and Patents Act 1988. It requires the infringer to show not only that their copying falls into one of the three fair dealing categories above, but also that it is “fair” and, in some cases, that it contains sufficient acknowledgement for the original author. Factors when deciding the “fairness” of the copying can include the quantity of the work taken, whether or not it was previously published, the motives of the infringer and what the consequences of the infringement on the original author’s returns for the copyrighted work will be.

If sued for copyright infringement, one can rely on fair dealing as a defence in court. The burden of proof then falls on the defendant to prove that one of the exceptions applies. This is done first by proving that the infringement falls within one of the three categories. The courts will not, however, give any consideration to what the infringer thought his work was for, or rely on a subjective test in any way (see, Hyde Park Residence v Yelland). If the copyright infringer can show that their use falls within one of the three categories, they must then show that the dealing was “fair”. This takes into account a number of things, and due to the freedom of speech provisions under the Human Rights Act 1998 is deliberately intended not to be based on rigid and inflexible tests. In alternative, the courts bear in mind that considerations of public interest are paramount.

How the work was obtained and for what purpose is also a factor. If the work was obtained illegally or unethically, the dealing is less likely to be “fair” than if it was legitimately acquired. Similarly, if the motives of the dealing are negative, the fairness will be impugned. As in Hyde Park, the court must “judge the fairness by the objective standard of whether a fair minded and honest person would have dealt with the copyright work in the manner” in question. Consequences are also a factor; if, as in Hubbard v Vosper, the parties to the case are competitors and infringing on the work acts as an alternative to purchasing the original, this will limit the fairness of the dealing. Occasionally the courts will also consider whether the purpose of the infringement could have been achieved in a less intrusive way, as in Hyde Park. The quantity of the work taken is also taken into account. If the infringer uses the majority of a copyrighted work, or all of it, they reduce the expected returns of the copyright owner and compromise “the role that copyright plays in encouraging creativity”. As such, the fair dealing defence usually only applies when part of a work has been taken, although some judicial comments.

For this defence to apply, the infringer must show that the dealing is for non-commercial research or private study. Private study is defined by Section 178 of the Act as excluding any study directly or indirectly for commercial purpose. It therefore covers most academic purposes, but not things such as the use of a database in market-testing of new drugs. Research, when not academic, is covered by the Controller of Her Majesty’s Stationery Office. Ordnance Survey v Green Amps Ltd sets the test as whether or not it is thought that the research would be used for a commercial purpose in the future.

Section 30(1) of the 1988 Act provides that the fair dealing exception is valid if the material is being copied for criticism or review. For it to apply, the infringer must be able to show that the dealing was for criticism or review, that the infringed work was previously made available to the public, that the dealing was fair, and that the dealing was accompanied by an acknowledgement. Under Section 30(2) of the Act, fair dealing using any work for the purpose of reporting current events, with sufficient acknowledgement, is a valid exception to copyright. Photographs are excluded. An important element of the “current events” exception is whether or not the reporting covers “current” events. “The older the issue, the less likely it is that it will be treated as having any currency” (Hyde Park)

As of 1 October 2014, Section 30A provides for fair dealing as a defence in cases where the infringement was for the purpose of caricature, parody or pastiche. The Intellectual Property Office suggests that a “parody” is something that imitates a work for humorous or satirical effect. A “pastiche” is a composition that is made up of selections from various sources or one that imitates the style of another artist or period. A “caricature” is something that portrays its subject in a simplified or exaggerated way, whether insulting or complimentary and whether for a political purpose or solely for entertainment.

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