Exceptions and Limitations Flashcards
Exceptions and Limitations
Exceptions: Allow a person to carry out an exclusive act without having to renumerate.
Limitations: Allow a person to do an exclusive act in return for paying renumeration.
Fair Dealing: Research and Private Study
Applies to all works
S29(1) CDPA: Fair dealing with a work for the purposes of research for a non-commercial purpose does not infringe any copyright provided that it is accompanied by a sufficient acknowledgement.
(S178: private study does not include directly or indirectly for a commercial purpose.)
S29(3) CDPA: It is possible for librarians to rely on this exception provided they do not supply more than one copy of the same article to the same person.
Fair Dealing: Reporting Current Events
s30(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.
s30(3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film or broadcast where this would be impossible for reasons of practicality or otherwise
Definition of a current event: NLA v M&S- The language of the section naturally connotes the public reporting of a newsworthy event.
(Successful argument for media coverage being a current event, Hyde Park Residence- the use of the stills was for reporting current events in the sense that it relate to recent media coverage about the two.)
Scope of fair dealing for the purpose of reporting current events in light of EU law, E&W Cricket Board-
> it is clear that “current events” are not confined to events which are very recent, particularly where the ramifications of an event continue to be a matter of public debate or concern.
> “Citizen journalism” can qualify as reporting current events.
> The clips were not used in order to inform the audience about a current event, but presented for consumption because of their intrinsic interest and value. Although the fact that a news service is a commercial one, I consider that the defendants’ objective was purely commercial rather than genuinely informatory.
Fair Dealing: Criticism or review
s30(1) CDPA Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise) and provided that the work has been made available to the public
The criticism or review must be directed to the work that is allegedly infringed or else another work or performance of a work, it cannot be general criticism or review.
Pro Sieben- Defendant had taken a 30 sec clip from TAFF programme to produce a current affairs programme (had also copied the whole programme to enable selection of the appropriate extract).
Criticism or review and reporting current events are expressions of wide and indefinite scope. Any attempt to plot their precise boundaries is doomed to failure.
The court will adopt an objective test of criticism and review.
There must be sufficient acknowledgement.
Pro Sieben- ‘TAFF’ and Pro Sieben logo, CA held logo sufficient as it was the means by which the author of a TV programme was accustomed to identifying itself.
Fair Dealing: Quotation
s30(1ZA) CDPA: Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that—
(a) the work has been made available to the public,
(b) the use of the quotation is fair dealing with the work,
(c) the extent of the quotation is no more than is required by the specific purpose for which it is used, and
(d) the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
Fair Dealing: Parody
s30A(1) CDPA: Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.
Deckmyn v Vandersteen- A parody must bring to mind the original work while being clearly different in some way, but whether intellectual creation has gone into the parody is irrelevant. A parody must have humorous effect.
Fair Dealing: Personal copies for private use
a28B CDPA
(1) The making of a copy of a work, other than a computer program, by an individual does not infringe copyright in the work provided that the copy—
(a) is a copy of— the individual’s own copy of the work, or a personal copy of the work made by the individual,
(b )is made for the individual’s private use, and
(c) is made for ends which are neither directly nor indirectly commercial.
Fair Dealing: Fairness Factors
Hubbard v Vosper, Lord Denning: It is impossible to define what is “fair dealing.” It must be a question of degree.
> The number and extent of the quotations and extracts.
> Then you must consider the use made of them.
> Next, you must consider the proportions.
> Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression.
Ashdown- Lord Phillips:
> By far the most important factor: commercially competing with the proprietor’s exploitation of the copyright work?
> The second most important factor: whether the work has already been published or otherwise exposed to the public?
> The third most important factor is the amount and importance of the work that has been taken.
(Griffiths argues there are two further principles that could usefully be applied: the SM of D’s article; the nature of C’s work.)
