“The ‘fair dealing’ defences occupy a pivotal position in copyright law. They ensure a balance between the interest of the copyright owner in securing a just return on creative work and the public interest in ensuring that intellectual property does not impede the flow of ideas and information.” J Griffiths Preserving Judicial Freedom of Movement –Interpreting Fair Dealing In Copyright Law IPQ 2000, 2,2 164-186. To what extent do you consider that the fair dealing provisions and the supporting case law provide a desirable and consistent balance between these interests?

This paper will criticize the restrictive approach of ‘fair dealing’ defences in UK copyright law. American copyright law will be examined in comparison to discuss the alternative attitudes towards ‘fair dealing’ defences in infringement disputes. Changes to the rule will be proposed and discussed to demonstrate how the current copyright defence can be improved to maintain the balance of protecting intellectual property and freedom of information.

Fair Dealing defences which are used against copyright infringement cases raise important philosophical issues at the heart of Intellectual Property. There is a need for society to share and build on existing knowledge for progress. For example it can be argued the need to allow freedom of expression, is ‘more than necessary to incentivise creative expression in the first place.’^[1] Fair dealing defences attempt to mediate between the fine line of the commercial proprietary rights granted through copyright and the legitimate public use of material in good faith, to teach, educate and share cultural works. Thus there is a fundamental dichotomy between the free expression of ideas in the public domain and the rightful protection of creative works which use such knowledge and information. This is termed the ‘idea-expression divide.’^[2] Kretschmer ^[3] argues against the concept of copyright, due to its capacity to act as an ‘artificial barrier’^[4] impeding the exchange of ideas in society. One explanation behind such divisions 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 rights’^[6] allows the creators to exploit 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 system of droit d’auteur enables an artist to control how their work is distributed in the market. While concerned about economic exploitation of work, moral 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 conflicting tensions.

British copyright law protects the manner of expression or form of the idea, not the idea itself. A book can be protected but not the actual underlying ideas and themes conveyed in the written text. This was stated in the case of Donoghue^[7] where the judge held ‘the person 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 1988^[8]. The legislation provides for a set of prescribed circumstances, where reproductions of copyright material will not be considered an infringement. Fair dealing is outlined in sections 20-30. There are three categories where copying can be considered a fair action to take when using copyright protected material. They are 1) for research and private study under section 29; 2) for criticism and review in section 30; and 3) reporting current events under section 31. It must be noted 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 purposes as stated 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 case itself. Fair dealing in this sense is shaped in the UK by judges as a ‘matter of impression’^[9] on a case by case basis.

The scope of fair dealing was clarified by Lord 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 copyrighted material. Denning outlined considerations, such as the frequency 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 review that may be fair dealing. If they are used to convey the same information for a rival purpose, they may be unfair.’ Another rule of thumb is the extent of the quotation within 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 infringement is judged by objective standards, through the eyes of an honest person as to whether they would have dealt with the protected material in the same way as the infringer has acted.

Existing fair dealing case law, only serves to highlight 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 research, 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 value of free ideas. For example ‘copyright should not become a financial 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 for its development.’^[12] It can be suggested this same line of reasoning underpins the fair dealing doctrine for educational purposes. Copying is permitted for intellectual property in dramatic, literary, artistic or musical work for purposes of instruction. Thus a student would be allowed to copy a part of an academic article in order to support their research or point of view 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 title 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 limited to criticizing or reviewing that or another work or a performance of a work.’ 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 genuine piece of criticism and review rather than an attempt to dress ordinary 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 cover those cases where only ideas, doctrine, philosophy and events are criticized.’ ^[16] Therefore 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 sufficient 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.

It can be suggested in comparison to US legal ‘multi – purpose’^[17] concept of fair use, the UK fair dealing doctrine is too 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 four standard ‘balancing’^[18] 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 Copyright Act 1976 17 U.S.C Section 107 states:

‘In 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 nature or it is for non profit educational purposes;

2.the nature of the copyrighted work;

3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and

4.the effect 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 continued 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 use’^[19] for similar purposes of educating, parody or comment. The standard allows the courts to asses whether the use is fair and justified. It also requires the burden of proof on the infringer to ‘demonstrate how the consideration is the extent to which the use is interpreted 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” doll 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 ‘leeway’^[22] to copy factual material. This provision directly allows the courts to ‘prevent the private ownership of work that rightfully belongs in the public domain, as facts and ideas are separate from copyright.’^[23] This was held to be the case in Time Inc ^[24]concerning the public interest of the film depicting the assignation of President Kennedy. The social need to keep this in the public domain was greater than the commercial need to uphold the copyright in the film footage.

The third factor assessing the amount and substantiality of the original 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 O’Sullivan 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 work’s value attempts to quantify the commercial impact infringement has had on the protected material. The ‘Betamax’^[26] case involved the copyright owner Universal loosing the infringement claim as it could not prove with any reliable evidence that the Betamax technology had dented the commercial broadcaster’s profits. Such an approach allows the courts 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 addition flexibility is encouraged as the fair use doctrine is a positive ‘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 consent 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 sharing. The doctrine is made to look ineffective, mainly through the botched nature of the UK implementation of the EU Directives on the Information Society. This paper believes it is necessary 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 author’s 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 replication 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 huge numbers among users of a globalised network on the internet.

It can be suggested that the UK’s implementation of the EU Information and Society Directive (2001) shows how outdated the present 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 ‘draconian’^[28] 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.’^[29]Critics suggest this is an even stricter standard providing no fair use for ‘copy protected on demand services.’^[30] Critics view the directive to mistakenly allow principles of freedom of expression to be ‘handed over to the rights owner.’^[31] For example under article 6(4) availability of research material through on-demand services can be contractually blocked by the copyright holder. This has major repercussions for the role 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 technological 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.’^[33]

In 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 remuneration’^[34] 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 small royalty percentage on content traffic revenues from ISP’s would have been the obvious legal innovation.’^[35] Such novel solutions are needed 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 pragmatic 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.

Bibliography

Klang & Murray (eds) Human Rights in the Digital Age, 2005 Cavendish

Lloyd, Information Technology Law 4^th Ed, 2004 ,OUP

Bently & Sherman, Intellectual Property Law, 2^nd Ed, 2004, Oxford

Holyoak & Torremans, Intellectual Property Law, 3^rd Ed, 2001, Butterworths

Intellectual Property Law, Fourth Edition 2004, Cavendish Publishing

J Griffiths, Preserving Judicial Freedom of Movement –Interpreting Fair Dealing In Copyright Law IPQ 2000, 2,2 164-186

M. Kretschmer, Digital Copyright: End of an Era, 2003 www.cippm.org.co.uk

Joint 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.html

R. Buchan, Fair Picture, Guidance from the English High 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.aspx

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Footnotes

^[1] W. Landes and R. Posner, An Economic Analysis Of Copyright Law, (1989) 18 Journal of Legal Studies, 325-366

^[2] Http://en.wikipedia.org/wiki/idea-expression_divide

^[3] www.cippm.org.uk, M. Kretschmer, Digital Copyright: The End of An Era

^[4] http:en.wikipedia.org/wiki/copyright/fair_use_and_fair_dealing

^[5] www.cippm.org.uk, M. Kretschmer, Digital Copyright: The End of An Era

^[6] as above

^[7] Donoghue v Allied Newspapers Limited (1938) Ch 106

^[8] Copyright, Designs and Patent Act 1988

^[9] Lord Denning Hubbard v. Vosper (1972) 2 QB 84 1 All ER

^[10] Hubbard V Vosper (1972) 2 QB 84, 1 All ER 1023

^[11] Independent television Publications Ltd v. Time Out Ltd (1984) FSR 545

^[12] p. 258 Holyoak and Torremans, Intellectual Property Law, 3^rd Edition, Butterworths, 2001

^[13] Sillitoe v. McGraw-Hill Book Co (UK) Ltd (1983) FSR 545

^[14] Pro Sieben Media AG v. Carlton TV (1999)

^[15] p.259 as above

^[16] p.259, Holyoak and Torremans, Intellectual Property Law, 3^rd Edition, Butterworths, 2001

^[17] www.cippm.org.uk, M. Kretschmer, Digital Copyright: The End of An Era

^[18] http://en.wikipedia.org/wiki/fair_use

^[19] http://fairuse.stanford.edu.copyright_and_fair_use_overview/chapter9/index.html

^[20] http://en.wikipedia.org/wiki/fair_use

^[21] Mattel Inc v. Walking Mountain Productions

^[22] http://en.wikipedia.org/wiki/fair_use

^[23] http://en.wikipedia.org/wiki/fair_use

^[24] Time Inc. v. Bernard Geis Associates 293 F Supp. 130

^[25] 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 above

^[28] www.cippm.org.uk, M. Kretschmer, Digital Copyright: The End of An Era

^[29] p.268, Holyoak and Torremans, Intellectual Property Law, 3^rd Edition, Butterworths, 2001

^[30] p.8 www.cippm.org.uk, M. Kretschmer, Digital Copyright: The End of An Era

^[31] as above

^[32] p.10 as above

^[33] as above

^[34] as above

^[35] p.3, M. Kretschmer, Digital Copyright: The End of An Era