Defences

Defences

1. Points to consider:

   • The impact of the Human Rights Act 1998 on the CDPA
   • The comparison between the USA's 'Fair Use' (broad) test and the UK's 'Fair Dealing' (specific) test

2. 'Fairness'

   • The amount taken; the quality and quantity of what has been taken will be considered. If the work is short, it may be fair to reproduce the whole work
   • The use made of the work; it is more likely for the work to be considered fair if the defendant can show they have added to or recontextualised the part taken = transformation makes for a stronger case
     • If D derives a commercial benefit from the dealing, this will weigh against them unless there is some 'overriding element of public advantage which justifies the subordination of the right of the copyright owner' - Chadwick LJ in Newspaper Licensing Agency v Marks & Sparks
   • The consequences of the dealing; the impact that the dealing will have upon the market - particularly relevant where parties are in competition
   • Is the work unpublished?; if so, this could weigh against the dealing being fair. However, weighting will differ dependent on the type of work.
   • How was the work obtained?; it is less likely that a dealing will be considered fair if it relates to work that has been stolen or leaked, or obtained by unauthorised access
   • What was the motive for the dealing?; dishonesty or a motive that the court finds questionable will weigh against them in the evaluation of fairness
   • Could the purpose have been achieved by different means?; if it could have been carried out in a less intrusive way, it is more likely to be considered unfair e.g. Hyde Park v Yelland (2000)

3. 'Sufficient Acknowledgement'

   • The author and the work must be identified. But defence still available if not possible (e.g. s178 - anonymous works)
   • Can be identified by its title, or some other description e.g. name, pseudonym, photograph or log.

4. Temporary Technology-dictated Copies

   • Art 5(1) Information Society Directive (now s28A of CDPA 1988)
   • A person making a temporary copy will escape liability only if:
     • The copy is transient or incidental
     • The making of the copy is an 'integral and essential part of a technological process'
     • The copying either occurs to enable either transmission of the work in a network between 3rd parties and an intermediary, or to enable a lawful use of the work
     • The temporary copy has 'no independent economic significance'

5. Art 5(2)(b) ISD: Member states allowed to offer exceptions that permit personal copying for private use

6. Fair Dealing Defences

   • s29(1) and (1C): research or private study
     • a. Must be for person's own study, not someone else's.
     • b. The purpose of the activity must be non-commercial (links to s178)
     • c. The dealing must be fair having regard to: the amount taken, how readily available it is, and the effect on the market for the original work
     • d. There must be sufficient acknowledgement
     • s29A: text and data analysis - a. does the person have lawful access? b. is there sufficient acknowledgement?
   • s30(1): criticism or review
     • a. The dealing must be of the appropriate type (must state it is specific to a piece of work or performance)
     • b. The original work must have been made available to the public (cannot include leaked work under Prince of Wales v Associated Newspapers (2007)
     • c. The dealing must be fair having regard to: the effect it had on the market and the nature of the dealing
       • The court must steer away from assessing whether the criticism itself is fair meaning that D can still have a defence despite a malicious criticism
     • d. There must be sufficient acknowledgement
   • s30(1ZA): quotation
     • a. The dealing must be of the appropriate type - no futher than necessary to achieve the specific purpose
     • b. The original work must have been made available to the public (same as criticism and review)
     • c. The dealing must be fair, having regard to the effect it had on the market and the nature of the dealing
     • d. There must be sufficient acknowledgment
   • s30(2): reporting current events
     • a. The dealing must be for the purposes of reporting current events - 'current' = contemporary issue
     • b. The dealing must be fair, having regard to whether the work was published or not, the motive for the dealing, the amount taken, and whether the dealing was necessary
     • c. Is there sufficient acknowledgement? Note: not necessary in reporting via sound recording, film or broadcast where impossible for practical reasons (s30(3)
   • s30A(1): parody, caricature or pastiche
     • Deckmyn case defined parody as: to evoke an existing work while being noticeably different from it' AND 'to constitute an expression of humour or mockery
     • The humorous requirement is met where there is evidence of an intention to be humorous or whether such 'humour' must be appreciated by the audience (a reasonable audience with an appreciation of the type of work in question)

7. The creation of a copy that improves access to those with difficulties is permitted so long as it is for personal use; they have lawful possession of the OG; no commercial alternative; the charge (if so) must not be more than the cost

8. Exceptions: s50 onwards re. electronic works (personal copy); artistic works (public place, catalogue not for sale, not main design, and building owner repairs); broadcasts (supervisory body to copy, and watching later); and databases (download whilst searching e.g. cache)

9. s31(1): Incidental inclusion - applicable regardless of accident or deliberate