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Copyright Permitted Acts And Defences Notes

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5. Permitted acts and defences?
'Exceptions': Provisions that allow a person to carry out an exclusive act in relation to a copyright work, without having to remunerate the owner. 'Limitations': Provisions that allow a person to do an exclusive act, in return for paying remuneration of some kind.
--------------------------------------------------------------------------------------------------------------------------------------------1a) Fair dealing for the purposes of research or private study

+ Lord Phillips: In judging what is fair one should be flexible not just bound by precedent.
? 'Non-commercial' purposes:
- HMSO & Ordnance Survey v. Green Amps Ltd [2007]; (noted [2008] EIPR 162]; Facts: One licensee of the Ordnance Survey maps was a university student, employed by GA during the holidays. Students used maps whilst doing tasks for GAs and at university. GA kept password and downloaded the product without payment. GA was trying to develop a mapping tool. GA's acts were not licensed - tried to argue mapping tool was research. Decision: Court held; section required that what would otherwise be an act of infringement was for act of research and a non-commercial purpose. GA would sell mapping tool so commercial. Anyway GA actions were not fair dealing, shown by covert nature of copying.
? What is the meaning of 'research' and 'private study'? How far is private study inherently non-commercial?

- *Sillitoe v. McGraw-Hill [1983]; Facts: M published study notes for use in exam preparation. These included extracts from the set texts which amounted to at least 5% of the work and were accompanied by brief explanations. This was a low ratio of explanation-extract. Decision: Research - Private study must be inherently non-commercial. Study must be D's. Others cannot rely on the exception - people to who they sold the books relied on it.
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1b) Fair dealing for the purpose of criticism or review Orthodox position - does not cover criticism of the author of a work. Explanation of the work not same as criticism.*Sillitoe v. McGraw-Hill [1983]; Criticism or review - Held that the book was intended as a substitute for buying the published text. If it had been intended as a companion there would have been no need for the inclusion of extensive extracts.

- *Pro Sieben Media v. Carlton UK (CA) [1999]; Facts: There was a news story concerning a woman who was carrying 8 babies as a result of fertility treatment. Several companies were willing to pay large sums for the publicity rights. PS made a TV program about the woman which was criticised as cheque-book journalism. This case concerned a second TV program made by Carlton TV who used a 30 second clip from PS's program. Carlton TV's programme was critical of PS for having paid the woman for exclusive rights, depending on how many children survived. Issue: Did this fall into the 'criticism or review' exception?
Decision: 1st instance: held there was no intention to criticise the program, simply to criticise the claimant's conduct so not fair dealing. CA disagreed: 'expressions of wide and indefinite scope which should be interpreted liberally'. Stated that test was essentially an objective one, although the user's subjective intentions and motives were relevant. Criticised the trial judge who had erred too much by focusing on the actual purposes and not enough on the Carlton programme's likely impact on audience. Held the short extract was fair dealing and did not take advantage of PS's exclusive right to the story. Issue: Wide and indefinite scope? I can now criticise conduct. Arguably there is no difference between work/conduct.Banier v. News Group Newspapers [1997]; Facts: B (famous photographer) published a book of photos, including one of Princess Caroline. Photo published under licence in The Times. Published by Sun without a licence. Argued it was fair dealing and criticism of B's book. Decision: Held; it was just a photo, not criticism.

- IPC Media v. News Group Newspapers [2005]; Facts: IPC published a TV magazine. Sun advertised own rival magazine using IPC's images (logo). D argued it was comparative advertising. Decision: Held criticism of this type did not fall within the meaning of the section - all D needed to do was to refer to IPC to criticise not reproduce.
- Fraser-Woodward Limited v. BBC [2005]; Facts: 14 photos taken by F showing the Beckhams in off-guard moments. Published under licence. Tabloid Tales had a go at the Beckhams and showed 2-3 second shots of photos in show. BBC said their programme included criticism.

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