‘Fair Dealing’ Defences in UK Copyright Law: An Analysis

charming dealingss Defences in UK secure Law An AnalysisThe good dealing defences delight a pivotal position in right of first everydayation law. They ensure a balance in the midst of the elicit of the secure owner in securing a just return on creative institute and the public arouse in ensuring that intellectual seat does non impede the flow of ideas and in tenoration. J Griffiths Preserving Judicial Freedom of Movement Interpreting white dealings In secure Law IPQ 2000, 2,2 164-186. To what extent do you consider that the bring together dealing provisions and the shop ating guinea pig law provide a desired and consistent balance between these interests?This paper will criticize the inhibitory nest of fair dealing defences in UK right of first publication law. Ameri commode secure law will be examined in comparison to discuss the secondary attitudes towards fair dealing defences in rape disputes. Changes to the obtain will be proposed and discussed to dem onstrate how the current procure defence wad be meliorate to stay fresh the balance of protecting intellectual property and freedom of knowledge.Fair Dealing defences which are put ond against procure go againstment cuttings raise all-important(prenominal) philosophical issues at the heart of happy Property. at that place is a collect for corporation to share and build on alert knowledge for progress. For modelling it can be argued the need to allow freedom of expression, is more than necessity to incentivise creative expression in the first place.1 Fair dealing defences production in charge to mediate between the fine line of the commercial proprietary rights apt(p) by means of secure and the legitimate public exercising of clobber in good faith, to teach, educate and share cultural clears. in that respectof there is a fundamental dichotomy between the free expression of ideas in the public domain and the rightful protection of creative starts which oc casion much(prenominal) knowledge and information. This is termed the idea-expression divide.2 Kretschmer 3 argues against the conceit of copyright, due to its efficiency to act as an coloured barrier4 impeding the exchange of ideas in society. whiz explanation screw such(prenominal) breakdowns can be suggested to lie in the historical Lockean conceptualization of property. This is defined negatively creating rights to exclude access.5 This absolutist conception of property rights6 allows the creators to solve and monopolize economic, cultural production at the expense of fair uses in the public interest and freedom of expression. But there are those who support the rights of the author. For example the French formation of droit dauteur modifys an workman to control how their work is distributed in the marketplace. While concerned about economic exploitation of work, honorable rights also ensure the author has rights to protect the integrity of a work. Thus the British concept of fair dealing defences must balance these opposed tensions.British copyright law protects the manner of expression or form of the idea, not the idea itself. A curb can be defend but not the substantial chthonian(a)lying ideas and themes conveyed in the written text. This was declared in the lesson of Donoghue7 where the tag held the psyche who has clothed the idea in form, whether by means of a picture, a play or book will enjoy the benefits of copyright protection.Fair Dealing in UK copyright law is a defence under Sections 28-76 of the CDPA 19888. The legislation provides for a desexualize of prescribed circumstances, where reproductions of copyright somatic will not be considered an infraction. Fair dealing is outlined in sections 20-30. There are three categories where write can be considered a fair action to take when utilise copyright protected real. They are 1) for search and private study under section 29 2) for criticism and follow in section 30 a nd 3) reporting current events under section 31. It must be storied that the legislation provides no clear definition of what constitutes fair use of material which attracts copyright. Thus the act restricts the defence to the non exclusive drives as give tongue to above. One reason for restricting fair use to a number of permitted acts enables the judge to consider other factors which are unique to the suit of clothes itself. Fair dealing in this sense is shaped in the UK by judges as a matter of impression9 on a case by case basis.The celestial orbit of fair dealing was clarified by maestro Denning in Hubbard v. Vosper. 10 This case suggested certain criteria to be considered by the judge in order to determine whether fair use can be permitted in different situations involving the use of copyright material. Denning outlined considerations, such as the frequence and extent of quotations, and subsequently the nature of using quotations. Denning states in response to this test , If they are used as a basis of comment, criticism or re opine that may be fair dealing. If they are used to convey the uniform information for a rival purpose, they may be unfair. Another rule of thumb is the extent of the quotation inside copyrighted work. This considers the size of the actual quote used and its justified proportions in fair use. For example Denning suggests to take long extracts and attach short commentary maybe unfair. Each case of impingement is judged by objective standards, through the eyes of an honest person as to whether they would flip dealt with the protected material in the same bureau as the infringer has acted.Existing fair dealing case law, lone(prenominal) serves to bring out the ambiguity of the defence under English law. It is difficult to provide a desirable balance which protects the exclusive rights of the copyright holder but maintain a consistent approach which provides certainty to use material which is permitted in law.For example the purposes of legitimate question, the courts will not allow commercial research if it is used to produce a competing product or work. This was highlighted in the case of Time Out.11 It can be suggested large amounts of copying will be allowed for private research and study in the eyes of the law. Academics argue in this context fair dealing functions to enable freedom of individual research and study. To require and enforce protective measures to prevent the use of copyrighted material is impractical and uneconomic. It is argued copyright should not be used as a bar to those who wish to use the work in their own studies. Torremans argues copyright property rhetoric should not be allowed to supersede important protect of free ideas. For example copyright should not become a monetary and practical obstructing barrier. There needs to be a balance between the interests of the copyright owners and society in the good functioning of the copyright system and the interest of society f or its development.12 It can be suggested this same line of argumentation underpins the fair dealing precept for educational purposes. Copying is permitted for intellectual property in dramatic, literary, artistic or medicational work for purposes of instruction. Thus a student would be allowed to copy a part of an academic expression in order to support their research or point of understand in an essay.Under the category of infringing material for the purposes of criticism and review, it has been established that infringement will not occur if there is adequate acknowledgement of the author, the designation or description of work is made available, as held in the case of Sillitoe.13 Fair dealing was extended in the case of Pro Sieben Media AG 14 which held criticism of work can be fair, even if including the ideas in a work to discuss its ethical implications. The case stated that the defence is special(a) to criticizing or reviewing that or another work or a murder of a wo rk. The function of the defence is to allow a critic a sensible degree of leeway to conduct a review of the work. The courts stated the use of infringing material in a documentary was a factual piece of criticism and review rather than an attempt to dress mundane copyright infringement up as criticism.15 This case suggests it is fair to critically treat copyrighted material using the ideas within the work. But crucially the defence does not c all over those cases where only ideas, doctrine, philosophy and events are criticized. 16 accordingly the fair dealing doctrine is narrow in scope, restricted only to the fair use for the purposes of critical review. This case been criticized by Torremans who has argued it is not capable to rely on the infringers sincere belief they are conducting fair criticism. There is an imbalance for those to wishing to exploit the fine line and cynically infringe work and simply claim the fair dealing defence for the purpose of criticism and review.I t can be suggested in comparison to US sub judice multi purpose17 concept of fair use, the UK fair dealing doctrine is overly restrictive in scope and interpretation. The UK is restrictive because the CDPA legislates three categories of permitted copying under the fair dealing defences, which are determined on a case by case basis of the judge. Thus anything else will be uncovered by the doctrine. The American legal system in contrast uses quadruplet standard balancing18 tests to determine the extent of copying protected material which is covered under the fair use doctrine. The fair use doctrine is a wider and more flexible legal concept to balance the idea-expression division in intellectual property. Under the American secure Act 1976 17 U.S.C Section 107 statesIn determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-1.the purpose and character of the use, including whether such use is of a commercial natur e or it is for non profit educational purposes2.the nature of the copyrighted work3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and4.the outlet of the use upon the potential market for or value of the copyrighted work.The fair use doctrine is not defined within the statute, it is left open to broad interpretation by judicial opinion. This ensures a degree of flexibility for the get acrossd transmission of ideas in society. This for example can be seen when analyzing the primary factor of purpose and character. The concept of fair use rests on the idea of limited transformative use19 for standardised purposes of educating, parody or comment. The standard allows the courts to asses whether the use is fair and justified. It also requires the magnetic core of proof on the infringer to demonstrate how the consideration is the extent to which the use is taken as transformative as opposed to merely derivative.20 This point of law was considered in cases such as Mattel Inc.21 The toy company lost the claim against an artist who parodied the iconic Barbie snort figure in a non derivative manner. The doll was used in an entirely different context which defeated the copyright infringement claim.Secondly the benefits of American fair use can be seen when considering the nature of the work. The standard allows for the distinction between created work and factual information which serves the public through its dissemination into the open arena. It is argued there is more leeway22 to copy factual material. This provision directly allows the courts to prevent the private self-will of work that rightfully belongs in the public domain, as facts and ideas are take away from copyright.23 This was held to be the case in Time Inc 24concerning the public interest of the painting depicting the assignation of President Kennedy. The social need to keep this in the public domain was greater than the commercial need to uphol d the copyright in the film footage.The third factor assessing the amount and substantiality of the schoolmaster copied work is a more troublesome standard to determine in the courts. For example the issue of sampling in hip hop music, which reclaims existing music and uses it to create a new track, was litigated. Here the courts have been unusually strict seen in the decision Grand.25 The case enforced the copyright of a Gilbert OSullivan song and lead to the restrictive requirement of licensing samples of music from the copyright owner, if the sample if substantially recognizable.The fourth factor of investigating the effect upon the works value attempts to quantify the commercial impact infringement has had on the protected material. The Betamax26 case involved the copyright owner worldwide loosing the infringement claim as it could not prove with any original evidence that the Betamax engineering had dented the commercial broadcasters profits. such an approach allows the c ourts to factor in alleged market harm to copyrighted material, and give equal consideration to economic concerns of the rights holder to make a fully informed assessment of the situation.These four non exclusive factors provide enough flexibility for judicial opinion to consider other important considerations in relation to each individual case of infringement. In extension flexibility is encouraged as the fair use doctrine is a unconditional defense to copyright, which means if the defendants actions do not constitute and infringements of the plaintiffs rights, fair use does not even arise as an issue.27 Thus a broader view is established in the US system. You do not need the acquiesce of the copyright owner under American law to engage in fair use of material which attracts copyright.However further criticism of the UK approach to fair dealing arises in the wider context of digital copying technology and file overlap. The doctrine is made to look inefficient, mainly through the fluff nature of the UK implementation of the EU Directives on the training Society. This paper believes it is essential to resolve these problems and rethink the traditional approach to copyright infringement in a digital environment. The aim to balance the conflicting factors of the authors rights and the need to allow the free exchange of knowledge in society is harder to perform with widespread digital copying. But it is possible through digital Management Systems, to distribute copyrighted content through technology which limits the capacity to duplicate files by the consumer. Despite DMS, this paper believes the frequency and simplicity of sideboard facilitated through digital technology far outweighs such content managed systems that use inbuilt licensing restrictions. For example peer 2 peer file sharing and online digital content has facilitated the exchange of copyrighted music in gigantic numbers among users of a globalised network on the internet.It can be sugges ted that the UKs implementation of the EU Information and Society Directive (2001) shows how outdated the consecrate conception of fair dealing defences are. Article 5 deals with the exceptions and limitations to the use of copyright, in order to harmonize European policy. Under Article 5(5) a Draconian28 three step test is used to assess any infringement exceptions in special cases. This section is to be applied if they do not conflict with normal exploitation of the work and if the exception does not unreasonably prejudice the legitimate interests of the rights holder.29Critics suggest this is an even stricter standard providing no fair use for copy protected on demand go.30 Critics view the directing to mistakenly allow principles of freedom of expression to be handed over to the rights owner.31 For example under term 6(4) availability of research material through on-demand services can be contractually blocked by the copyright holder. This has major repercussions for the ro le of UK fair dealing defences as it renders the doctrine ineffective in the digital arena. Kretschmer worries this amounts to a possibility of perpetual copyright.32 In addition to this under 5(1), the directive provides for technical exceptions which involve necessary copying for expert process and digital content. Temporary reproductions such as the cache of files within a browser which copy files of data will not infringe copyright as such acts are incidental and should have no economic significance.33In light of such developments it can be suggested there is a need to find alternative solutions to reward copyright owners interest within a digital context. There is a need for copyright to generate new resources of remuneration34 for rights owners instead of functioning in a prohibitive manner. Kretschmer proposes alternative system of royalties to be used to compensate owners who can not stem the tide of digital copying. For example a underage royalty percentage on content tra ffic revenues from ISPs would have been the obvious legal innovation.35 Such novel solutions are necessitate in order to successfully balance the freedom of information with traditional copyright interests.In conclusion this paper argues for the need to make changes and decided upon matter-of-fact alternative solutions to the current legal situation. Fair dealing should be redefined to enable copyright infringement defences take into account the development of digital content. It can be suggested to ensure greater flexibility the UK should adopt the wider US fair use doctrinal approach to defending infringement. Legislation should widen the scope of fair dealing through standard factor based tests. Adopting such standards would promote a liberal approach to asses the degree and nature of infringement. This is needed to make sure the vital balancing act of competing ideological tensions continue within intellectual property law.BibliographyKlang Murray (eds) Human Rights in the Di gital Age, 2005 CavendishLloyd, Information Technology Law 4th Ed, 2004 ,OUPBently Sherman, mind Property Law, 2nd Ed, 2004, OxfordHolyoak Torremans, Intellectual Property Law, 3rd Ed, 2001, ButterworthsIntellectual Property Law, Fourth Edition 2004, Cavendish publishingJ Griffiths, Preserving Judicial Freedom of Movement Interpreting Fair Dealing In Copyright Law IPQ 2000, 2,2 164-186M. Kretschmer, Digital Copyright End of an era, 2003 www.cippm.org.co.uk sum Information Systems Committee and Publishers Association, Guidelines for Fair Dealing in An Electronic Environment, 1998, www.ukonln.ac.uk/services/elib/papers/pa/fair/intro.htmlR. Buchan, Fair Picture, Guidance from the English highschool Court on Fair Dealing for the Purpose of Criticism and Review, as Applied to Copyright Material, The Journal of Law and Society, August 2005, Page 52, www.journalonline.co.uk/article/1002090.aspx1Footnotes1 W. Landes and R. Posner, An Economic Analysis Of Copyright Law, (1989) 18 Journa l of good Studies, 325-3662 Http//en.wikipedia.org/wiki/idea-expression_divide3 www.cippm.org.uk, M. Kretschmer, Digital Copyright The End of An Era4 httpen.wikipedia.org/wiki/copyright/fair_use_and_fair_dealing5 www.cippm.org.uk, M. Kretschmer, Digital Copyright The End of An Era6 as above7 Donoghue v all(a)ied Newspapers particular(a) (1938) Ch 1068 Copyright, Designs and Patent Act 19889 Lord Denning Hubbard v. Vosper (1972) 2 QB 84 1 All ER10 Hubbard V Vosper (1972) 2 QB 84, 1 All ER 102311 freelancer television Publications Ltd v. Time Out Ltd (1984) FSR 54512 p. 258 Holyoak and Torremans, Intellectual Property Law, 3rd Edition, Butterworths, 200113 Sillitoe v. McGraw-Hill obligate Co (UK) Ltd (1983) FSR 54514 Pro Sieben Media AG v. Carlton TV (1999)15 p.259 as above16 p.259, Holyoak and Torremans, Intellectual Property Law, 3rd Edition, Butterworths, 200117 www.cippm.org.uk, M. Kretschmer, Digital Copyright The End of An Era18 http//en.wikipedia.org/wiki/fair_use19 http//f airuse.stanford.edu.copyright_and_fair_use_overview/chapter9/index.html20 http//en.wikipedia.org/wiki/fair_use21 Mattel Inc v. manner of walking Mountain Productions22 http//en.wikipedia.org/wiki/fair_use23 http//en.wikipedia.org/wiki/fair_use24 Time Inc. v. Bernard Geis Associates 293 F Supp. 13025 Grand Upright v. Warner 780 F Supp 182 (S.D.N.Y 1991)26 Sony Corp v. Universal City Studios , 464 U.S 417, 451 (1984)27 as above28 www.cippm.org.uk, M. Kretschmer, Digital Copyright The End of An Era29 p.268, Holyoak and Torremans, Intellectual Property Law, 3rd Edition, Butterworths, 200130 p.8 www.cippm.org.uk, M. Kretschmer, Digital Copyright The End of An Era31 as above32 p.10 as above33 as above34 as above35 p.3, M. Kretschmer, Digital Copyright The End of An Era