5. C - defences Flashcards
TEMPORARY COPIES DEFENCES
S.28A
no liability if
- copying is transient and incidental (o.e. subsequently deleted without human intervention - infopaq)
- making copy is integral and essential to technological process
- copying occurs to enable transmission or lawful use (receipt of satellite broadcast is lawful so creating bugger copies = no liability, FAPL)
- no independent economic significance
FAIR DEALING - consider
amount taken use made of work consequences of dealing work unpublished how obtained? motive purpose achieved by different means?
Hubbard v vosper
Denning - is that amount taken “too long to be fair?”
C&R of Church of Scientology (used its quotes)
- FINE
- C&R covers style of work and criticism
- C&R extends to UNDERLYING PHILOSOPHY and subject matter
- C&R can be harsh but fair (fairness is not about criticism but about USE of work)
Pro Sieben Media v Carlton TV (case itself)
octomum interview
- documentary on chequebook journalism including clips from C’s interview
C&R defence applies
- C&R = broad
- can be criticism of COLLECTIVE GENRE of work
- test is objective
- whether C&R is intended or not is irrelevant BUT motive maybe relevant for whether it is FD
= FAIR C&R, use only 30s
quotation defence
FD
- can’t take more than required for specific purpose (limited by extent - other FD considers this only in whether it is fair)
- previously made avaliable
- sufficient acknowledgement
Time Warner v Chanel 4
C&R of decision to withdraw film from circulation = fine
- sufficiently connected
FD for C&R
- DEALING for purpose of C&R
- OF WORK (or another work) or of PERFORMANCE of work
- fair dealing
- sufficient acknowledgement
- made available to the public
Pro Sieben v Carlton TV (factors for fairness)
Q of fact and impression Degree the work competes with C's work extent of use motives amount taken purpose of use necessity of use was the original published?
Fraser Woodward
photo of the Beckhams (photographer = C)
D used in his documentary
- C&R = yes, it is broad
- criticism must just be connected (here about the tabloid press)
- can be C&R of UNDERLYING IDEAS
- FAIR? = yes (same factors as Pro Sieben)
- purpose and motive
- matter of impression
- no prejudice to interest of author
- amount taken? (careful w/ photos, here only on screen for a few seconds)
time Warner v Channel 4 (fair use?)
argued no fair use
DISC ACQUIRED IN UNDERHAND MANNER = not relevant got it legally
CLIPS USED DOESN’T REPRESENT FILM AS A WHOLE = not relevant, fairness of criticism is irrelevant (just looking at fairness of dealing, if genuine attempt at C&R that’s fine)
NOT C&R = it was
8% OF FILM USED, 40% OF DOCC WAS THE FILM = fair because that was what was necessary
Sillietoe v McGraw
study notes
Not FD for private study because it’s for someone else
FD of C&R?
- NOTES 1: no C&R, just exposition (no critical content)
- NOTES 2: C&R of the quotes (but not the summary), but not FD because D profits from C’s work
FD for news reporting
- dealing fair
- purpose of reporting current affairs?
- sufficient acknowledgement?
Hyde Park v Yelland
Fayed claimed Diana and his son = engaged
- video of them at the Villa (1 year later published)
CURRENT EVENT? YES, still interest and renewed coverage makes it an event again
FAIRNESS? no, extent was EXCESSIVE (could just use words) and use was unnecessary
Ashdown v Telegraph Group
diaries shown in confidence to press who published it
CURRENT EVENT - yes, 2 years later but meeting between PM and opposition is of continued public interest
FD = no, just for COMMERCIAL BENEFIT and BOC and would have been published anyway eventually
England & Wales v Tixdaq
8s clips
CURRENT EVENT?
- wide meaning but here it isn’t (purpose = commercial profiting from clips, not informing)
- current events can include contemporous sports but D’s purpose was not informatory
FAIRNESS (obiter):
- 3 step test requires same factors as fairness factors:
ONE - “certain special cases” (current events here)
TWO - not in conflict with normal exploitation (this is considered in FD)
THREE - no unreasonable prejudice to C owner interests (proportionality)
- here notice = commercial competition (people might not subscribe knowing they have 8s clips)
- extent was disproportionate (took the juiciest bits)
- not FD
Deckmyn
FD FOR CARICATURE, PARODY, AND PASTICHE
parody = autonomous concept
essential characteristics:
1. evoke existing work but noticeably different
2. constitute expression of humour or mockery
WEAPON PARODY = FINE
can’t compete with original work (i.e. not the same)
GENERAL DISCLOSURE OF PUBLIC INTEREST?
SEEMS UNLIKELY
Lion Lab v Evans (PID)
BREATHLYSER
- all 3 CA judges said public interest defence (re: reproducing report as c infringement)
- PID in C is same as in BOC
Hyde Park v Yelland (PID)
NOT public interest - info can be made available without infringement of C
MAJORITY:
PID doesn’t exist at all here (majority said)
- C = statutory regime and is exhaustive (PID not in code)
- PID not appropriate (C restricts reproduction of work not information it contains)
- DEFENCE is not compatible with Berne Convention
REJECTS PID broadly protecting freedom of expression
ONLY allowed if C used immorally
MINORITY:
s. 173 shows Parliament intended PID retained (Mance LJ)
- but PID not to level of BOC because C is not BOC
- court can make a broader defence in BOC
Ashdown v Telegraph (PID)
cabinet memo case
MAJORITY:
probably PID but narrow (C balances FOE well anyway)
- if FD defences don’t apply and result is inadequate –> then you can use PID
- applies differently to BOC because PD knocks out BOC action but in C, C still exists
