COPYRIGHT 2

PERMITTED ACTS AND DEFENCES

Role of Copyright Tribunal

• Deals with disputes and licensing

• Statutory licensing under the CDPA

a. educational purposes

b. rental of sound recordings

c. competition

• Can refer anti-competitive practices to Office of Fair Trading & complaints can then go to Competition Commission

LICENCES

• A licence allows use of copyright material BUT NOTE

a licence is just that - a form of permission – it is not a property right.

• Licences can be granted for specific area/period of time.

• Can be exclusive/non-exclusive. Note the difference between the 2.

INFRINGEMENT (1)

• Copying a work• Issuing copies to public• Renting/lending copies to public• Performing, showing or playing a work in public• Communicating work to the public• Making an adaptation of a work or any of above

in relation to an adaptation

(s. 16 CDPA)

INFRINGEMENT (2)

• To do any of the above in respect of the whole or substantial part of the work is a PRIMARY infringement

• What is ‘substantial’?

• Note that all this applies to material on the internet as well. Note the new powers under Digital Economy Act 2010

PERMITTED ACTS relevant to the media

• Incidental Inclusion

• Fair dealing

• Publishing in the Public interest

• Reproduction of Speeches & Interviews

INCIDENTAL INCLUSION

• Where copyright material included is not the main theme of the publication or work

• Football Association Premiership League Ltd v Panini Ltd [2003]

FAIR DEALINGAN IMPORTANT DEFENCE

• 3 forms apply here:-

1. Fair Dealing for the purposes of criticism or review

2. Fair Dealing for the purposes of reporting current events

N.B. NO defence for use of photograph

3. Fair Dealing for the purposes of parody, Pastiche and Caricature.

A. CRITICISM & REVIEW

• S.30(1) CDPA• There must be a sufficient

acknowledgment & the work must have been made available to the public by legitimate means:

- copies issued to public - copies been loaned or rented to public - work been performed exhibited played

etc or communicated in some way

2 EXAMPLE CASES

1. Time Warner Entertainments Co v Channel Four Television Corp plc [1994]

(‘Clockwork Orange case’)

2. Pro Sieben Media AG v Carlton UK TV [1999]

• Note the material MUST be used for purpose of criticism/review NOT sensationalism

B. REPORTING CURRENT EVENTS

S. 30 (2) & (3) CDPA

Must be accompanied by sufficient acknowledgement unless, in the case of sound recording or film or broadcast it is impossible for reasons of practicality or otherwise

Some useful cases

• BBC v British Satellite Broadcasting [1992]

• Hyde Park Residence Ltd v News Group Newspapers [2000] (Also known as ‘Yelland’)

• Ashdown v Telegraph Group [2001]

PARODY, PASTICHE & CARICATURE

• Came into force on 1st October 2014 – Copyright & Rights in Performances (Quotation and Parody) Regulations 2014

• Amends S.30 - Allows quotation from original work the benefit of Fair dealing as a defence. No guidance on how this will work in practice.

PARODY, PASTICHE cont’d

• Courts will have to address issue of whether new creation uses too much original material.

• Fair Dealing rules will apply. • Moral rights will not be affected. • Will courts have to decide if the new work –

the parody/pastiche - is funny? Does a parody or pastiche always have to be funny?

The Public Interest defence and Human Rights

Despite what is stated in S.171 (3) CDPA this is very limited. Look at :

• Lion Laboratories v Evans [1984]

• Hyde Park Residences case (Yelland)

• Ashdown case

and the comments of the courts about when public interest is appropriate to use

Public Interest – Court of Appeal view

• Both Hyde Park Residence & Ashdown went to CA.

• Courts split as to use of public interest and how strict the interpretation should be.

• Aldous LJ – use only in case of wrongdoing by claimant

• Mance LJ – parameters of defence not capable of precise definition

BUT IT CAN WORK....

• See Reading Post case referred to in McNae p.353 ( concerns photographs)

• This a small claims case reported on the Newspaper Society website in 2010

• Judge allowed defence in these specific circumstances

Speeches & Interviews

• Copyright attaches to spoken words as soon as they are recorded in a permanent form (with or without permission)

• There is copyright in the script from which speaker reads• Can be used for reporting current events provided:• Speaker did not prohibit the recording and the use made of the words was not prohibited in

advance by the speakerSee case of the Queen’s Speech and Sun Newspaper NO copyright in the facts conveyed in a speech

Copyright reform?

• Is copyright too heavily weighted in favour of the copyright owner?

• Should the law be reformed?

• Reforms being discussed e.g. for parody and pastiche.