Defences, remedies and exploitation

Question 1

What does the Pelham case say about EU harmonisation and fundamental rights?

Answer 1

Member states may not provide exceptions to copyright protection which go beyond those allowed under EU law I.e., the infosoc directive. Art5(5) allows for a balancing act between fundamental rights of the freedom of expression and those of the copyright owner

Question 2

What is the defence of temporary or incidental copying in Article 5(1)?

Answer 2

They’re essentially temporary and necessary acts of copying to enable a technological process to take place which therefore don’t amount to an infringement of the copyright

Question 3

What are the requirements for the temporary or incidental copying defence to apply?

Answer 3

• Must be transient or incidental copying
• Must be an integral and essential part of a technological process
• It’s sole purpose must be:
  a) transmission in a network between third parties by an intermediary or
  b) a lawful use of work with no independent economic significance

Question 4

What 6 fair dealing defences exist under the closed list of the CPDA?

Answer 4

1) Research or private study
2) Criticism or review
3) Quotation
4) Reporting current events
5) Parody, caricature or pastiche
6) Illustration for instruction

This is a purposive list except in relation to quotation

Question 5

What is the assessment for fairness as laid down in Hyde Park v Yelland?

Answer 5

Fair minded and honest person

“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 that The Sun did, for the purpose of reporting the relevant current events, in this case the published untruthful statement of Mr Al Fayed”

Question 6

What doe Hubbard v Vosper say about fairness?

Answer 6

It’s a question of degree and impression

Question 7

What 3 factors did the court identify in Ashdown v Telegraph regarding fairness?

Answer 7

1) Commercial competition i.e., are P and D in competition?
2) Prior publication
3) The amount of copyright work copied and its importance

Question 8

What other general fairness factors are when assessing whether any of the fair dealing defences apply?

Answer 8

• Quality and quantity of the work taken
• How the work is used, and to what extent it has been altered or added to
• What commercial benefit the defendant has gained from copying
• How competitive are the plaintiff and defendant with each other?
• Was the work unpublished? (note the defences of criticism/review and quotation don’t apply if the work’s unpublished)
• How was the work obtained?
• Could the purpose of the copying have been achieved by other means?

Question 9

What does s178 of the CDPA relate to?

Answer 9

Sufficient acknowledgement - Where required, the copier must identify the author and the title.

Question 10

In what situation does s178 not apply?

Answer 10

Where the original work is published anonymously or where the author cannot be ascertained by reasonable enquiry

Question 11

What does Prescott v Pasternak say about s178 of the CDPA?

Answer 11

You cannot rely on the defence of quotation, even if it fair dealing, where you fail to give sufficient acknowledgement and have made reasonable enquiries

Question 12

What is the defence of fair dealing for research or private study? What section of the CDPA is it?

Answer 12

s29

Applies to research for non-commercial purpose, provided it’s accompanied by sufficient acknowledgement (basically preventing plagiarism)

Also applies to fair dealing for the purpose of private study.

Normal fairness factors apply.

Question 13

What is required under the defence of fair dealing for criticism or review and what section of the CDPA is it?

Answer 13

s30

• Work must have already been published
• The criticism must be of the work itself, or of another work or the performance of a work, i.e., it cannot be criticism at large.
• However, it can include criticism of the underlying themes or its ideas and need not merely be a criticism of the style of the work.

Question 14

What was said in Pro Sieben v Carlton Television about fair dealing in review/criticism?

Answer 14

A programme about chequebook journalism which used extracts from another programme was fair dealing as it was criticising the poor standards of journalism by the plaintiff.

Question 15

What did Hubbard v Vosper say about the criticism/review defence?

Answer 15

The criticism of scientology was acceptable and fair dealing despite the use of the protected works on the grounds that it was acceptable to criticise the philosophy behind the work too.

Question 16

What did Time Warner v Channel 4 say about the criticism/review defence?

Answer 16

It suggested that what would amount to fair dealing was not necessarily a closed list. In this case, the criticism of the plaintiff for withdrawing a film from circulation included clips from the film itself.

Held that it was fair dealing because criticising the decision to withdraw the film was inseparable from the film itself.

Question 17

What did Ashdown v Telegraph group say about the review/criticism defence?

Answer 17

The publication of the secret memo of the former leader of the Lib Dems was not protected by the defence as it was used to criticise the PM and Ashdown rather than the memo itself or its ideas.

Question 18

What section deals with fair dealing for quotation and what are the requirements for it apply?

Answer 18

s30(1ZA)

• The work must have previously been made available to the public
• it must be accompanied by sufficient acknowledgement
• Quotation can be for any purpose must must be no more than is required by the purpose for which it is used.