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Exceptions and LimitationsLooking at the exceptions a defendant may rely on when sued for infringement of copyright Chapter 3 of Part 1 1988 Act - permitted acts - "consists of a collection of provisions which define with extraordinary precision and rigidity the ambit of various exceptions to copyright protection" (Laddie J - Pro Sieben Media) There are common law defences as well as the exceptions in the Act The exceptions only come into play when a claimant has established that copyright has been infringed S28(1) - the fact that an activity falls within a permitted act does not mean it does not contravene some other legal right eg breach of contract
What role do the exceptions perform?
- The exceptions perform a number of different roles
? Sometimes they promote and encourage the creation of works - the case where the permitted use transforms the original work in some way
? Sometimes they overcome the market failure that arises where an economically optimal use would not occur - where the dealing is so small that the transaction costs of formulating an agreement outweigh the value of any licence that might be negotiated between the parties
? Defences might be intended to protect non-copyright interests - privacy and free speech - CDPA s29 - private study
? To prevent monopolies being abused
? To help preserve material that is culturally and historically valuable - s75 (archives) What affects the UK exceptions?
- The "three-step test" - all exceptions must be limited to certain special cases, must not conflict with a normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the author
- The three step test sets general parameters to the freedom of national legislatures to create exceptions
- European Community developments have had a more pronounced impact on copyright exceptions available in the UK - the Software, Databases and Info Soc Directives require member states to operate certain exceptions and limit the circumstances in which other exceptions may be granted
- The Info Soc Directive - contains one mandatory exception regarding transient/incidental acts of reproduction and a huge list of optional defences - the list is exhaustive and member states cannot maintain any other exceptions
? All defences subject to the three step test - art 5(5) Info Soc
- The ECHR/HRA and Strasbourg jurisprudence - offers an important backdrop for the interpretation of a number of defences
? Art 10 - confers a freedom of expression, limitations to which must be "necessary in a democratic society"
? Ashdown v Telegraph Group  - C of A - acknowledged that art 10 considerations were to be taken into account, firstly, in the process of interpreting the existing exceptions AND secondly, in the formulation of remedies AND, thirdly, if nec, in the formulation of a judicial "public interest" exception to copyright
Fair dealing defences
Act s29 and 30 Basically - a person not liable if they can show
? Fair dealing for the purposes of research or private study s29(1) and s29(1C)
? For the purposes of criticism or review - s30(1)
? For the purpose of reporting current events - s30(2) The restricted approach in the UK can be contrasted with American copyright law which has a general defence of fair use - if the court is satisfied that the use is fair, then no infringement
When does an infringer fall within one of the purposes listed in the Act?
? Courts have construed the specific purposes liberally - the first hurdle of deciding whether the dealing falls within one of the purposes = easy
? The second issue is the standard of interpretation that will be adopted when deciding the purpose for which the work was used - the language suggests that this should be decided according to the subjective intention of the infringer
? Hyde Park  - Aldous LJ - when deciding the purpose of the dealing, it is not necessary "for the court to put itself in the shoes of the infringer" - a more objective approach should be adopted
? Pro Sieben  - the more objective approach ensures that court does "not give any encouragement to the notion that all that is required is for the user to have sincere belief, however misguided, that he or she is criticizing a work or reporting current affairs"
? SO perhaps a stricter test after all????
After showing that the dealing falls within one of the purposes, D must show that the dealing was fair
? This is a question of degree and impression
? Cannot provide precise guidelines
? Ashdown v Telegraph  - Lord Phillips MR - now that the HRA is in force, it is essential not to apply inflexibly tests based on precedent - "but to bear in mind that considerations of public interest are paramount"
? Griffiths "Copyright law after Ashdown - Time to Deal Fairly with the Public" (2002) - where freedom of expression is affected, this may require the courts to place less weight on factors such as whether the work was unpublished/the commercial purpose of the dealing and more weight on factors such as the political importance of the work and whether the subject matter is at the margins of copyright
- Factors that influence this question
? Is the work unpublished?
? If the dealing relates to unpublished work then this will weigh against the dealing being fair
? For criticism and review - defence is unavailable if work not previously "made available" to the public
? How the work is obtained
? Dealing is less likely to be fair if work is leaked/stolen
? The amount taken
? The quantity and quality of what is taken - a crucial factor
? Hubbard v Vosper  - Lord Denning MR - you "must consider the number and extent of the extracts" and are "they altogether too many and too long to be fair?"
? Lengthy extracts/extracts of the most important parts of a work - will reduce the expected returns to the copyright owner
? The courts recognize that fair dealing should not undermine the role copyright plays in encouraging creativity
?BUT Sillitoe v McGraw Hill  - the courts have acknowledged that in some cases, such as where the work itself is short, it may be fair to reproduce the whole work - case was a parishioner quoting an epitaph on a tombstone in the churchyard
? Use made of the work
? A use is more likely to be fair if D can show that he has added to or recontextualised the part taken
? This is especially the case for fair dealing in relation to criticism/review
? If D derives a commercial benefit from the dealing, this will weigh against them
- indeed, for purposes of research, the defence only applies to research for a non-commercial purpose
? This is because the copyright owner is likely to suffer commercial disadvantage
? NLA v Marks and Spencer  - Chadwick LJ - it won't be a fair dealing if there is commercial benefit "unless there is some overriding element of public advantage which justifies the subordination of rights of the copyright owner"
? Consequences of the dealing
? Hubbard v Vosper  - the impact that the dealing will have on the market for the work is important - especially where the parties are in competition and the defendant's use of the work acts as a substitute for the purchase of the original work
? Could the purpose have been achieved by different means?
? Info Soc Art 5(3)(a), (c), (d) - limits the scope of exceptions for research, reproduction by the press and criticism or review respectively to "the extent justified" by the non-commercial purpose, the 'informatory purpose' and the 'specific purpose'
? Idea - could the purpose have been achieved in a manner less intrusive on the owner's rights?
? Hyde Park Residence v Yelland 
? Case concerned an application for summary judgment against the Sun newspaper for publishing stills of Dodi Fayed and Princess Diana, taken from a security film, the copyright in which was owned by the claimant
? D argued that the stills revealed the times when Fayed and Diana were present at Villa Windsor and so exposed the falsehood of statements made by Mohammed Al Fayed
? At first instance - argued that it was not necessary for the Sun to have published the images taken from the video - they said the Sun could have interviewed the security guard and said that they had seen the photos without actually publishing them
? C of A - Aldous LJ - the information as to the timing of the arrival and departure of Dodi and Diana could have been given in the articles - the court applied that the pictures were no more effective evidence than the written word
? The purpose was only to expose the lies of Mohammed Al Fayed NOTE - each of the fair dealing defences requires the dealing to be fair in UK law BUT Info Soc Directive art 5 - says that although for research, current events and criticism and review the use of the work must be to the extent justified by the purpose.... With regards to fair dealing specifically, it says the use must be "in accordance with fair practice" only in the context of criticism and review (Art 5(3)(d))
- In some situations, the dealing must be accompanied by 'sufficient acknowledgment' - author and work must be identified
?Fair dealing for research or private study - sufficient ack only required in relation to research and when ack is not impossible
? Fair dealing for criticism and review - sufficient ack required for all works
? Fair dealing for reporting current events - sufficient ack required for all works BUT no ack required for reporting current events by means of a sound rec, film or broadcast where this would be impossible D must identify both the work and the author of the work
FAIR DEALING FOR THE PURPOSES OF RESEARCH OR PRIVATE STUDY-S29 The exception does not apply when the dealing is with a sound rec, film or broadcast - LDMA works only The limited scope of the defence - criticized because it fails to reflect the increasing importance of non-textual media for study and research Rationale for defence
? Research and study are necessary to generate new works
? Also, non-commercial research and study do not normally interfere with the rewards that copyright provides to its creators
? SO - defence help to achieve goal of maximizing the production of works Private study - defined in s178 - not including study which is directly or indirectly for a commercial purpose - issues with the use of indirectly here - much study is intended to equip students with skills to improve their commercial potential Before 2003, little turned on whether the activity was defined as research or private study
? Research - seen as a process intended to lead to a particular result
? Study - 'for its own sake' Distinction now more important - defence will only apply to dealings for research where there is specific acknowledgment Terms must be interpreted in light of Info Soc Directive
? Key difference between terms - research may not be private
? So private study can be for its own sake or with a goal in mind
? Research requires output of papers/talks etc and the output must be a product of systematic inquiry (research as opposed to fiction) The s29(3)(b) limitation to exception - no fair dealing is it will result in "copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose" - lecturers are unable to use the research/private study defence where they make multiple copies of a work for their students
FAIR DEALING FOR CRITICISM OR REVIEWS30(1) The defence recognizes the value of criticism and review As said above, the courts take an objective approach when deciding the purpose for which the work was used The courts have said that criticism and review should be construed liberally The criticism or review may be the work as a whole or a single aspect of a work, the thought or philosophy underpinning a work (Hubbard v Vosper) or its social and moral implications (Pro Sieben)
Pro Sieben Media 
- C of A treated as justified the use of extracts from the claimants television broadcast (which featured interviews with a woman who was pregnant with octuplets) even though the defendant's programme criticized the practices of "cheque-book journalism" of which the
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