IX.

PERMITTED ACTS AND OTHER DEFENCES

[1] Introduction
 International framework:
 Berne Convention
o Art. 9(2): Three step test: “(first step) It shall be a matter for legislation
in the countries of the Union to permit the reproduction of such works in
certain special cases, (second step) provided that such reproduction
does not conflict with a normal exploitation of the work and (third step)
does not unreasonably prejudice the legitimate interests of the author.”
o TST means that MS can have exceptions but only in circumstantial cases
- only for right of reproduction (first and second step)
o Only art 10(1) is mandatory for all states = quotation exception
o The others = optional
 Other Conventions
o TST extended via Art. 13 TRIPS, Art. 10 WCT and Art. 16 WPPT
o Art. 13 TRIPs applies to all exclusive rights
 EU framework:
 Partial harmonisation - Art 5 Information Society Directive + software and
database directives
o Partial harmonisation - Art. 5 Infosoc Directive
 Art. 5 (1) - mandatory exception; all other exceptions listed are
optional
 Art 5(2) & (3): optional but exhaustive list - “Member States may
provide for exceptions and limitations” - Member States cannot add
exceptions to this list (Pelham)
o The exceptions listed are an exhaustive list - cannot add an exception
which is outside of this list
o Art. 5 (4) Infosoc Directive - restatement of three step test
o Exceptions are interpreted strictly generally, but some cases have not
always followed this
 Can result in contradicting cases in relation to defences
o Infopaq case (?)
 UK framework
 Over 40 exceptions exist in UK law and are called ‘permitted acts’
 S.16 (2) - permitted by author to do so; s.171 (3) - benefitting the public
 Human Rights Act 1998
 Some, but not all exceptions, have been rendered imperative - some of
these exceptions cannot be contracted out; this change implemented in
2014

Permitted acts
Directive 2001/29/EC (Information Society Directive)
 mandatory defences
 S.28 A, Art. 5 (1) Infosoc Directive - concerned copies which are temporary
 When copy is temporary, must be transient or incidental
 Must be integral and essential part of technological purpose
 Sole purpose is to enable:
o A transmission of the work in a network between third parties by an
intermediary, or
o A lawful use of the work and
  There must be no independent economic significance
 Was created mainly to allow for caching and browsing on internet
o Public Relations Consultants case (2014) - copies on user’s computer
screen when viewing websites satisfied the Art. 5 (1) test
 NLA argued PRC had to obtain licence not only to prepare press
articles, but also for when viewer clicked on these reports to view
them: effectively paying twice
 optional defences
 three-step test
C-5/08 Infopaq International A/S v Danske Dagblades Forening
CDPA 1988, ss 28-76
Other defences
CDPA 1988, ss 16(2), 171(3)
Human Rights Act 1998

[2] Temporary copies

Directive 2001/29/EC, art 5
CDPA 1988, s 28A
C-5/08 Infopaq International A/S v Danske Dagblades Forening
C-403/08 Football Association Premier League v QC Leisure [2012] 1
CMLR 29
C-302/10 Infopaq International A/S v Danske Dagblades Forening
Public Relations Consultants Association v NLA [2013] UKSC 18
[26] The effect of this body of authority can be summarised as follows:
(1) Subject to the limitations which I shall summarise in the following sub-paragraphs,
the exception in article 5.1 applies to copies made as an integral and necessary part of
a ‘technological process’, in particular the digital processing of data. For this purpose,
the making of copies is a ‘necessary’ part of the process if it enables it to function
‘correctly and efficiently’: Infopaq II, at paras 30, 37.
(2) These copies must be temporary. This requirement is explained and defined by the
words which follow, namely that the making of the copies must be ‘transient or
incidental and an integral and essential part of a technological process’. It means (i)
that the storage and deletion of the copyright material must be the automatic
consequence of the user’s decision to initiate or terminate the relevant technological
process, as opposed to being dependent on some further discretionary human
intervention, and (ii) that the duration of the copy should be limited to what is
necessary for the completion of the relevant technological process: see Infopaq I, at
paras 62 and 64.
(3) The exception is not limited to copies made in order to enable the transmission of
material through intermediaries in a network. It also applies to copies made for the
sole purpose of enabling other uses, provided that these uses are lawful. These other
uses include internet browsing: Infopaq I, at para 63 and Infopaq II, at para 49.
(4) For the purpose of article 5.1, a use of the material is lawful, whether or not the
copyright owner has authorised it, if it is consistent with EU legislation governing the
reproduction right, including article 5.1 itself: Premier League, at paras 168-173,
Infopaq II, at para 42. The use of the material is not unlawful by reason only of the fact
that it lacks the authorisation of the copyright owner.
(5) The making of the temporary copy must have no ‘independent economic
significance’. This does not mean that it must have no commercial value. It may well
have. What it means is that it must have no independent commercial value, ie no
value additional to that which is derived from the mere act of digitally transmitting or
viewing the material: Premier League, at para 175, Infopaq II, at para 50.

C-360/13 Public Relations Consultants Associations v NLA [2014] ECDR

22
[3] Fair dealing
 Used to be small in number but more were added in 2014; only applicable to the six
situations here
 Not the same as fair use in US

Hubbard v Vosper [1972] 2 QB 84 - Vosper was previous member of

Scientology and wished to criticised Hubbard who was a leading member of
Scientology; one of the beliefs of the faith was that there was a book given to
members which he was supposed to keep secret; Vosper used quotes from the
book

Lord Denning at 94:

It is impossible to define what is ‘fair dealing’. It must be a question of degree. You
must consider first the number and extent of the quotations and extracts. Are they
altogether too many and too long to be fair? Then you must consider the use made of
them. If they are used as a basis for comment, criticism or review, that may be fair
dealing. If they are used to convey the same information as the author, for a rival
purpose, that may be unfair. Next, you must consider the proportions. To take long
extracts and attach short comments may be unfair. But, short extracts and long
comments may be fair. Other considerations may come to mind also. But, after all is
said and done, it must be a matter of impression.

Independent Television Publications Ltd v Time Out Ltd [1984] FSR 64

Time Warner Entertainment Ltd v Channel Four Television [1994] EMLR
1 - after showing of Clockwork Orange, violence in UK rose; owner of film
wished to remove the Clockwork Orange and meant film was banned from UK;
Channel 4 bought the tape in France and imported the movie into the UK and
showed most violent parts in documentary criticising the decision of director
to remove film from UK
o Purpose of buying this copy was to criticise the work - this was fair
dealing

Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605

Walker LJ, at 619:
"Fair dealing" in its statutory context refers to the true purpose (that is, the good faith,
the intention and the genuineness) of the critical work--is the programme incorporating
the infringing material a genuine piece of criticism or review, or is it something else,
such as an attempt to dress up the infringement of another's copyright in the guise of
criticism, and so profit unfairly from another's work?

Hugenholtz and Senftleben, ‘Fair Use in Europe: In Search of Flexibilities’,

2011, available at SSRN: https://ssrn.com/abstract=1959554

Hyde Park Residence Ltd v Yelland [2001] Ch 143 - concerned publication

of an article about a false story and published stills; the Sun paid the
employee to give these stills to them but knew what they were doing was
wrong
o Aldous LJ at 379:
 The court must judge the fairness by the objective standard of
whether a fair minded and honest person would have dealt with the
copyright work.

Newspaper Licensing Agency Ltd v Marks and Spencer plc [2001] Ch

257
Ashdown v Telegraph Group Ltd [2002] Ch 149
HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522
(Ch),
[2006] EWCA Civ 1776, [2007] 2 All ER 139
 Fair dealing factors
  work published or unpublished
 means by which work obtained
 extent of work copied
 benefit obtained from using work
 motive for dealing
 consequences of dealing
 alternative means of achieving purpose

 research and private study

CDPA 1988, s 29

o Fair dealing for purpose of research for non-commercial purpose will not
infringe copyright in which the work provided that it is accompanied by a
sufficient acknowledgement
o Do not need for acknowledgement if it is impossible to give sufficient
acknowledgement
o Fair dealing for purposes of private study does not infringe any copyright
in the work - no need for sufficient acknowledgement
o Imperative exception
o ‘Research’ - any systematic inquiry into any question
o Goal of s.29 is to maximise production of new copyright works
o ‘Private study’ - for one’s own study - so will not cover publisher’s
reproduction of works in study guides for students
o ‘Non-commercial’ - it is more than just a few sales; Infosoc Directive;
organisational structure and means of funding are not decisive factors
o Private study is not the same as private copying
 Exception for private study exists in Art. 5 (2)(b) - EU law, but UK
has not implemented; was contained in s.28B CDPA but now
abolished
 Not allowed in UK e.g. copying a CD on an iPod

Sillitoe v McGraw Hill Book Co [1983] FSR 545

 text and data analysis

CDPA 1988, s29A
o S.29A CDPA 1988
o 'TDM' does not fall into S28A
o Can only be used for non-commercial practices
o Allows copies made for “computational analysis of anything recorded in
the work for the sole purpose of research for a non-commercial purpose”
+ sufficient acknowledgement unless impossible + lawful access
o Includes taking all the articles written for a certain topic, and ‘mine’
these by looking at the words which appear most often
o Must be done for sole purpose of research for non-commercial purpose
alongside sufficient acknowledgement
o Imperative exception
o European Commission proposes to widen it a bit (see directive proposal
on copyright in the digital single market) - mandatory

 criticism, review, quotation and news reporting

CDPA 1988, ss 30, 58
S.30 (1) CDPA 1988 - ‘Fair dealing with a work for the purpose of criticism or
review of that or another work or of a performance of a work, does not infringe
any copyright in the work provided that it is accompanied by a sufficient
acknowledgement by a sufficient acknowledgement and provided that the
work has been made available to the public.’
 Hubbard v Vosper [1972] 2 QB 84

Lord Denning at 95:

A literary work consists, not only of the literary style, but also of the thoughts
underlying it, as expressed in the words. Under the defence of "fair dealing" both can
be criticised. Mr. Vosper is entitled to criticise not only the literary style, but also the
doctrine or philosophy of Mr. Hubbard as expounded in the books.

Sillitoe v McGraw Hill Book Co [1983] FSR 545

Associated Newspapers Group v News Group Newspapers [1986] RPC
515
BBC v British Satellite Broadcasting [1992] Ch 141
Time Warner Entertainment Ltd v Channel Four Television [1994] EMLR
1 - criticism can also include decision to withdraw the work from circulation
Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605 -
criticism can include social and moral implications including style of journalism
 Pro Sieben - German TV channel with programme about woman with
eight foetuses; Carlton TV challenged this - read case
Ashdown v Telegraph Group Ltd [2002] RPC 5 - Paddy Ashdown had
conversation with Tony Blair about forming coalition and wanted to publish
book; some of the book reproduced; no need to reproduce the minute - read
case

Lord Phillips M.R. at 64:

In a democratic society, information about a meeting between the Prime Minister and
an opposition party leader during the then current Parliament to discuss possible close
co-operation between those parties is very likely to be of legitimate and continuing
public interest. It might impinge upon the way in which the public would vote at the
next general election. The ‘issues’ identified by the ‘Sunday Telegraph’ may not
themselves be ‘ events’, but the existence of those issues may help to demonstrate the
continuing public interest in a meeting two years earlier.
The Newspaper Licensing Agency Ltd v. Marks & Spencer Plc [2001]
R.P.C. 5 (CA)
Gibson LJ at 75:
The fact that an article appears in the press can be said to be an event. As the cutting
is copied promptly the event might be said to be current. The circulating of a copy to
an M&S executive can be said to be reporting the current event of the appearance of
that article. But is that what was intended by the phrase "for the purpose of reporting
current events"? I think not for two reasons. …the public reporting of a recent
newsworthy event. It is not natural to read it as meaning that the defence applies
where the dealing lies in reporting the mere fact that an article has appeared in the
press, however interesting that fact may be to M&S.

Does not matter if criticism is fair: but cannot go over the line into defamation

Fraser-Woodward Ltd v BBC [2005] EWHC 472 (Ch)

IPC Media Ltd v News Group Newspapers Ltd [2005] EWHC 317 (Ch)
HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522
(Ch),
[2006] EWCA Civ 1776, [2007] 2 All ER 139
Newspaper Licensing Agency v Meltwater [2011] EWCA Civ 890
England and Wales Cricket Board & Sky UK v. Tixdaq & Fanatix

C-476/17 Pelham GmbH & Ors v. R. Huetter & F. Schneider- Esleben

[2016] EWHC 575

C-516/17 Spiegel Online GmbH v. Volker Beck

Quotation
 S.30(1ZA) CDPA 1988 - introduced in 2014
 Weirdly worded - will include criticism/review
 The work has to be made available to the public;
 The use of quotation is fair dealing with the work;
 The extent of the quotation is no more than is required by the specific purpose
for which it is used;
 ‘Specific purpose’ - could be political, artistic, etc. purpose; if commercial
purpose strays away from fair dealing factor: struggle to use this
 The quotation is accompanied by sufficient acknowledgement
 Pelham case - no definition of directive of quotation so usual meaning had to
be applied
 ‘The essential characteristics of a quotation are the use, by a user other
than the copyright holder, of a work or, more generally, of an extract
from a work for the purposes of illustrating an assertion, of defending an
opinion or of allowing an intellectual comparison between that work and
the assertions of that user, since the user of a protected work wishing to
rely on the quotation exception must therefore have the intention of
entering into ‘dialogue’ with that work’
 Where use of sound sample is recognisable to the ear in that new work,
can amount to quotation if it has been used with intention of entering
into dialogue
 Concept of quotations does not extend to a situation in which it is not
possible to identify the work concerned by the quotation in question
 Spiegel Online case - ‘…direct and close link between the quoted work and his
own reflections, thereby allowing for an intellectual comparison to be made
with the work of another’
 Use of a hyperlink - quotation could be made by this method
 Read the case
 ‘Made available to the public’ - s.30 (1A) been made available by any means
including:
 Issuing copies to the public;
 Rental or lending of copies of the work to the public;
 Communication to the public of the work;
 Performance, exhibition, playing or showing of the work in public
 Spiegel Online: being made available to the public with authorisation of the
copyright holder or in accordance with non-contractual licence or
statutory authorisation; Advocate-General’s opinion worth reading
 HRH Prince of Wales case - Prince of Wales made comments about return
of Hong Kong to China and gave these comments to friends and relatives
under obligation of confidence; comments were published in newspaper -
breached obligation of confidence
 If work is made available to certain number of persons: it is not
available to the public

- caricature, parody or pastiche

CDPA 1988, s 30A - ‘fair dealing… for the purposes of caricature, parody or
pastiche…’
 Imperative exception
 They are not synonyms
 Parody arguably encompasses caricature; but pastiche does not normally
require humour - it is aesthetic imitation - could include mash-ups, music
sampling, appropriation art, collages, homages
 C-201/13 Deckmyn v Vandersteen [2014] ECDR 21 - what is a parody?
parody of a work for political reasons; original author sued but defendant
sought to rely on parody
 EUCJ: parody not defined: autonomous concept; no definition - usual
meaning in everyday language
 Essential characteristics
 Evoke an existing work whilst being noticeability different from it
and
 Constitute an expression of humour or mockery
  Must strike fair balance between interests of copyright holder and freedom
of expression of the user of a protected work who is relying on the
exception for parody
 Need to respect principle of non-discrimination
 Irrelevant factors: parody does not need to display original character of its
own: only that it displays noticeable differences with respect to the
original work
 Could reasonably be attributed to a person other than the author of
the original work itself;
 Should relate to the original work itself or mention the source of the
parodied work
 Target and weapon parodies

- illustration for teaching – s 32

 CDPA S30(2) - Reporting Current Events

 “(2) Fair dealing with a work (other than a photograph) for the purpose of
reporting current events does not infringe any copyright in the work provided
that (subject to subsection (3)) it is accompanied by a sufficient
acknowledgement.
 (3) No acknowledgement is required in connection with the reporting of
current events by means of a sound recording, film or broadcast where this
would be impossible for reasons of practicality or otherwise”.
 Aim is to enable free speech - esp freedom of press
 Issue: 'other than a photograph' - could be an issue in photojournalism - there
is no such exclusion in the InfoSoc Directive
 Nothing about 'current events' in the act - based on case law/interpretation of
the Courts
 'current'
o Back to the Hyde Park Residence case - Ds claiming that they were
reporting current events even though what they were reporting about
occurred one year ago - courts said “The investigation into the events of
the night of August 30 and the morning of August 31 was continuing and
therefore the events had an element of currency.”
o Contrasted with HRH Prince of Wales: Prince Charles' diaries had his own
personal thoughts about the return of Hong Kong to China, which
occurred in 1997 - was held no longer current in 2005
o Ashdown: “In a democratic society, information about a meeting
between the Prime Minister and an opposition party leader during the
then current Parliament to discuss possible close co-operation between
those parties is very likely to be of legitimate and continuing public
interest. It might impinge upon the way in which the public would vote at
the next general election. The ‘issues’ identified by the ‘Sunday
Telegraph’ may not themselves be ‘events’, but the existence of those
issues may help to demonstrate the continuing public interest in a
meeting two years earlier.”
 Notion of current can be as long as you want as long as it is still in
continuing public interest
 'event'
o Anything is an event -but according to the law, an event is something of
importance, newsworthy (something of national or political importance,
nor trivial or ephemeral)
 o BBC v British Satellite Broadcasting and England and Wales Cricket
Board v Tixdaq and Fanatix: newsworthy - of national or political
importance, not trivial or ephemeral - even sport events can be of
'national importance'
o Pro Sieben – a trivial matter can become a newsworthy event through
media coverage – pregnancy, its progress and outcome and fact she had
sold exclusive right to broadcast interview
o NLA v Marks & Spencer: best illustration of 'trivial or ephemeral'
 “The fact that an article appears in the press can be said to be an
event. As the cutting is copied promptly the event might be said to
be current. The circulating of a copy to an M&S executive can be
said to be reporting the current event of the appearance of that
article. But is that what was intended by the phrase "for the
purpose of reporting current events"? I think not for two reasons.”
 “…the public reporting of a recent newsworthy event. It is not
natural to read it as meaning that the defence applies where
the dealing lies in reporting the mere fact that an article has
appeared in the press, however interesting that fact may be to
M&S”.
o England and Wales Cricket Board v Tixdaq and Fanatix: Notion of
reporting/‘for the purpose of reporting current events’ – must be judged
objectively; informatory purpose of the reporter
 “If a member of the public captures images and/or sound of a
newsworthy event using their mobile phone and uploads it to a
social media site like Twitter, then that may well qualify as
reporting current events even if it is accompanied by relatively little
in the way of commentary …
 users add comments to the clips they are uploading, they do not
create a report to which they add clips …
 The clips were not used in order to inform the audience about a
current event, but presented for consumption because of their
intrinsic interest and value”.
o Requirement to interpret reporting current events liberally is reinforced
by obligation to construe CDPA in conformity with Art 10 ECHR
 Reporting current events must be interpreted more broadly than in
the past because must be given a living interpretation i.e. can
include ‘citizen journalism’
 'reporting'
o Hyde Park Residence - Purpose was not to report current events but to
expose M. Al Fayed’s lies - thus need to look if the purpose was to report
current events
o Fair dealing: Commercial nature is very rarely a relevant factor for this
defence as often done by commercial newspapers so defence would
otherwise rarely apply
o Spiegel Online v Volker Beck -
 Reporting current events – usual meaning in every day language +
legislative context and purpose of rules of which they are part
 Reporting = providing information on a current event NOT merely
announcing it BUT no need to analyse it in detail
  Current event = “an event that, at the time at which it is reported,
is of informatory interest to the public” – broader than UK courts’
interpretation
 Art 5(3)(c) “to the extent justified by the informatory purpose”
 CJEU: “the use of the protected work must not be extended beyond
the confines of what is necessary to achieve the informatory
purpose”
 “that provision concerns the dissemination of information by news
agencies for the purposes of satisfying the informatory interest of
the public in respect of current events” - less broad than UK courts’
interpretation (Tixdaq)
o Interpretations
 Normally - notions of criticism, review and reporting current events
must be interpreted broadly (Pro Sieben, Time Warner, HRH Prince
of Wales, England and Wales Cricket Board BUT Spiegel Online)
 Sufficient acknowledgment
o For research, criticism or review, quotation, reporting current events,
illustration for instruction
o S 178: “an acknowledgment identifying the work in question by its title
or other description and identifying the author”; unless impossible eg
anonymous works
o Name, pseudonym, photo of author, Pro Sieben (logo), Fraser-Woodward
(oral, implicit)
o Painer: if the newspapers received the photograph without the author’s
name indicated by the security authority providing it, then the
newspapers were required only to indicate the source, not the name of
the author.

[4] Incidental copying

CDPA 1988, s 31
A work is not infringed if incidentally included in an AW, SR, F or B
 Football Association Premier League v Panini UK [2004] FSR 1 -
Incidental = casual, inessential, subordinate, ephemeral, merely background
 Fraser-Woodward Ltd v BBC [2005] EWHC 472 (Ch)

Whether incidental depends on why is work included, aesthetic or commercial

reasons
Attractive for the collector – commercial reason
S 31(3): MW, LW, and SR or B of MW/LW are not incidentally included if deliberately
included – ex. music chosen for movie scene ≠ MW included accidentally in live
broadcast

[5] Disabled persons

CDPA, ss. 31A-31F
Directive (EU) 2017/1564 - implementing Marrakesh treaty – needed to be
implemented by 11/10/2018 + Regulation applies as of 12/10/11
 Previous UK provisions were in general more restrictive than directive
 Copyright and Related Rights (Marrakesh Treaty etc) (Amendment) Regulations
2018, apply as of 12/10/2018:
http://www.legislation.gov.uk/uksi/2018/995/pdfs/uksi_20180995_en.pdf - statute
book outdated!

Regulation (EU) 2017/1563

 Ss. 31A-31F: disabled persons

 S 31A(1): a disabled person can make a copy of a copyright work for his/her
personal use; must have lawful access to a copy of a work
 S 31B: An authorised body which has lawful access to a copy of a work “may,
without infringing copyright, make, communicate, make available, distribute or lend
accessible copies of the work on a non-profit basis for the personal use of disabled
persons in UK or other EU member State”

[6] Education
Things done for the purposes of instruction or examination
CDPA 1988, ss 32-36A
S32 illustration for instruction
“(1) Fair dealing with a work for the sole purpose of illustration for instruction does
not infringe copyright in the work provided that the dealing is—
(a) for a non-commercial purpose,
(b) by a person giving or receiving instruction (or preparing for giving or
receiving instruction), and
(c) accompanied by a sufficient acknowledgement (unless this would be
impossible for reasons of practicality or otherwise).
(2) For the purposes of subsection (1), “giving or receiving instruction” includes
setting examination questions, communicating the questions to pupils and
answering the questions.”

Imperative; broad if one follows Berne

S 33-36A: other educational exceptions inc. performing playing and showing works,
recording broadcasts, making and supplying copies, lending works

[7] Libraries
Copying of periodical articles and books
CDPA 1988, ss 37-44A
Case C-117/13 Technische Universität Darmstadt v. Eugen Ulmer

Orphan works - ss. 44B, 116A-D CDPA - Copyright and rights in performances
(Licensing of orphan works) Regulations 2014 < Directive 2012/28 on certain
permitted uses of orphan works

[8] Public administration

Parliamentary and judicial proceedings, Royal Commissions and statutory inquiries
CDPA 1988, ss 45-50
[9] Computer programs and databases
Directive 2009/24/EC (Computer Programs Directive)
Directive 96/9/EC (Database Directive)
Copyright (Computer Programs) Regulations 1992 (SI 1992/3233)
Copyright and Rights in Databases Regulations 1997 (SI 1997/3032)
CDPA 1988, ss 50A-50D

Designs – ss. 51 & 53

Typefaces – ss. 54-55

[10] Representation of certain artistic works on public display - s 62

[11] Personal copies for private use

CDPA 1988, S65: reconstruction of buildings - also applies to drawings and plans

CDPA 1988, s 70 - time-shifting: “The making in domestic premises for private and
domestic use of a recording of a broadcast solely for the purpose of enabling it to
be viewed or listened to at a more convenient time does not infringe any copyright
in the broadcast or in any work included in it.”
Sony Music Entertainment (UK) Ltd v Easyinternetcafé Ltd [2003] FSR 882
[CDPA 1988, s 28B]

[12] Public interest defence

CDPA 1988, s 171(3): “Nothing in this Part affects any rule of law preventing or
restricting the enforcement of copyright, on grounds of public interest or otherwise”
Not what is of interest to the public, but what is in the public interest
Beloff v Pressdram Ltd [1973] 1 All ER 241
Lion Laboratories Ltd v Evans [1985] QB 526
Beggars Banquet Records Ltd v Carlton Television Ltd [1993] EMLR 349
Hyde Park Residence Ltd v Yelland [2001] Ch 143
Ashdown v Telegraph Group Ltd [2002] Ch 149 - Not capable of precise
categorisation or definition Hyde Park Residence (CA) & Ashdown (CA) and include if
copyright work is (i) immoral, scandalous or contrary to family life; (ii) injurious to
public life, public health and safety or the administration of justice; or (iii) incited or
encouraged others to act in a way referred to in ii) + to give effect to freedom of
speech (Ashdown (CA))
 “Now that the Human Rights Act is in force, there is the clearest public
interest in giving effect to the right of freedom of expression in those rare
cases where this right trumps the rights conferred by the Copyright Act. In
such circumstances, we consider that section 171(3) of the Act permits the
defence of public interest to be raised… We do not consider that this
conclusion will lead to a flood of cases where freedom of expression is invoked
as a defence to a claim for breach of copyright. It will be very rare for the
public interest to justify the copying of the form of a work to which copyright
attaches”.
 Because copyright does not prevent the publication of information
(idea/expression dichotomy)
HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch),
[2006] EWCA Civ 1776, [2007] 2 All ER 139 - it will be rare that a defendant wins on
public interest defence if a fair dealing defence does not apply
Spiegel Online and C-469/17 Funke Medien v Germany
 In 5(3)(c) and (d) Infosoc directive, ie exceptions for quotation (which includes
criticism and review) and reporting current events, MS and courts enjoy
margin of discretion and should take users’ fundamental rights into account
 and the effectiveness and purpose of the exception but still respect the TST
and comply with all conditions of the specific exception when doing so
 MS cannot use freedom of information/press to derogate to rights of
reproduction and CTTP
 Does the public interest defence still stand? Unsure after Funke Medien and
Spiegel Online

Imperative character of exceptions - recap

 Research and private study, data mining, quotation, parody, s 32(3)
(teaching), s 36(7) (educational use) + others
 BUT not criticism/review, reporting current events or public interest defence
 Exceptions can be cumulated
o Like the economic rights, exceptions can be cumulated if conditions are
fulfilled – eg Pro Sieben
o Overlap between quotation, criticism or review, parody and reporting
current events

X. MORAL RIGHTS

[1] INTRODUCTION

 Civil Law origins - French ‘droit moral’ or ‘droits moraux’ >< common law: copyright
centers on the economic aspects
 Moral rights are personal to the author/creator, also called personality rights. A
company cannot have moral rights => Independent from the author’s economic
rights
 Concerns an author’s relationship with his/her work (name, honour and reputation)
rather than commercial value/exploitation of the work
 Introduced late in the UK, only in 1988. Some protection was provided by the torts
of defamation and passing off before 1988
 International protection of moral rights
 Foundation for international protection of moral rights = Article 6bis Berne
Convention.
 Mandates only 2 types of rights:
 1. Attribution right (‘Paternity’ or ‘Maternity’ right)
 2. Integrity right
 UK law
 CDPA 1988, ss 2(2), 77-89
 2 rights in the UK: attribution and integrity
 2 other rights akin to moral rights: false attribution and privacy
 The right to privacy in respect of photographs commissioned for private
or domestic purposes (“the privacy right”). Belongs to the commissioner
of the photograph
 Right against false attribution: Right of ANY person against misleading
and deceptive attributions = so does not only belong to authors;
“reverse of attribution right”
  Case law

(a) Berne Convention (1928), Art 6 bis

Independently of the author’s economic rights, and even after the transfer of
the said rights, the author shall have the right to claim authorship of the work,
and to object to any distortion, mutilation or other modification of, or other
derogatory action in relation to, the said work, which would be prejudicial to
his honour and reputation.

CDPA 1988, ss 2(2), 77-89

Dworkin, ‘Moral Rights in English Law – The Shape of Rights to Come’

[1986] EIPR 329
Ginsburg, ‘Moral Rights in a Common Law System’ [1990] Ent LR 121
Teilmann, ‘Framing the Law: The Right of Integrity in Britain’ [2005] EIPR 19

(b) Duration of moral rights

CDPA 1988, s 86
 Unclear as not stated in article 6bis Berne
 Depends on the country but in most, duration is the same as economic rights
 Moral rights are inalienable between living persons but transferable upon
death and can be waived
 Any infringement of the right occurring after the author’s death is actionable
by his/her heirs or if no heirs, the state

(c) Consent and waiver of moral rights

CDPA 1988, s 87

[2] RIGHT OF ATTRIBUTION (PATERNITY RIGHT)

a. Content of the right

CDPA 1988, s 77(1)

b. Circumstances in which the right exists

- Literary and dramatic works: CDPA 1988, s 77(2)
- Musical works: CDPA 1988, s 77(3)
- Artistic works: CDPA 1988, s 77(4),(5)
- Films: CDPA 1988, s 77(6)

(c) Mode of identification

CDPA 1988, s 77(7)
Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565 [2005] 3 All ER 636

(d) Assertion of the right

CDPA 1988, s 78
But see Berne Convention, Art 5(2):
The enjoyment and exercise of these [moral] rights shall not be subject to any
formality ….
Walmsley v. Education Ltd t/a Oise Cambridge [2014]

(e) Exceptions
 CDPA 1988, s 79

[3] RIGHT OF INTEGRITY

(a) Content of the right

CDPA 1988, s 80(1)

(b) Derogatory treatment

CDPA 1988, s 80(2)
Snow v Eaton Centre (1982) 70 CPR (2d) 105
Morrison Leahy Music Limited v Lightbond Ltd [1995] EMLR 144
Tidy v Trustees of the National History Museum [1996] EIPR D-86
Confetti Records v Warner Music UK Ltd [2003] EMLR 790
Harrison v Harrison [2010] EWPCC 3
Delves-Broughton v. House of Harlot Ltd [2012] EWPCC 29

(c) Circumstances in which the right is infringed

- Literary, dramatic and musical works: CDPA 1988, s 80(3)
- Artistic works: CDPA 1988, s 80(4),(5)
- Films: CDPA 1988, s 80(6)

(d) Exceptions
CDPA 1988, s 81

(e) Qualification of right

CDPA 1988, s 82

(f) Possessing or dealing with infringing articles

CDPA 1988, s 83

[4] RIGHT TO OBJECT TO FALSE ATTRIBUTION

CDPA 1988, s 84
Moore v News of the World Ltd [1972] 1 QB 40
Noah v Shuba [1991] FSR 14
Clark v Associated Newspapers Ltd [1998] 1 All ER 959
Harrison v Harrison [2010] EWPCC 3

[5] RIGHT TO PRIVACY OF CERTAIN PHOTOGRAPHS AND FILMS

(a) Content of the right
CDPA 1988, s 85(1)

c. Exceptions
CDPA 1988, s 85(2)