Two new statutory instruments came into operation
on 1 October 2014, creating new permitted acts under the Copyright,
Designs and Patents Act 1988, which is now so heavily amended that
demands for a complete new codification and root-and-branch reform of
copyright law are getting louder and louder (recently being added to
in Mr Justice Arnold’s Herchel Smith lecture). They have exciting
(that’s irony, incidentally), but admirably descriptive, titles:
the first is the Copyright and Rights in Performances (Quotation and
Parody) Regulations 2014 (SI no 2356). The words in brackets in the
title of the second (SI no 2361) are ‘(Personal Copies for Private
Use)’. Although they do similar jobs, they work in subtly different
ways, and it is yet to be seen whether the private copying
regulations comply with the relevant EU directive (the so-called
information society directive) and therefore whether they are legal:
interested parties are considering their position and a legal
challenge may follow.
There are already many permitted acts, often
inaccurately referred to as ‘exceptions’, in UK copyright law.
Several of them fall under the general heading ‘fair dealing’,
creating the impression that perhaps they are similar to the ‘fair
use’ exception in US copyright law. Far from it: whereas ‘fair
use’ is a powerful and widely-usable ‘get out of jail free’
card, the UK law’s notion of ‘fair dealing’ is inherently more
limited and restricted to certain specific activities. Fair dealing
must be for private study, non-commercial research, ‘criticism and
review’ (must it be simultaneously for both?) or reporting current
events. Recent grafts onto this limb of the Act (Chapter III of Part
1) deal with making versions of certain works adapted to the
requirements of visually-impaired people. Now they are joined by
provisions allowing parodies and quotations, provided they amount to
r dealing.
How do you know what amounts to fair dealing?
First, it is important to note that it is not the same as fair use.
When the law uses a different word, it is safe to assume that it
intends to say something different. One might argue that it is fair
use, for example, to show a film to a small invited audience who do
not pay for the privilege, but perhaps make a donation to charity.
The charitable aspect immediately reveals possible arguments that the
use of the film is fair: the promoter is not making a profit from the
activity. But that is not the question we have to answer under our
law: we have to ask whether it amounts to fair dealing. Has it
interfered with the normal exploitation of the copyright by its
owner? Has it deprived the owner of the opportunity to earn
remuneration from the activity? It is perfectly possible that the
owner would, had they been asked, have given permission to show the
film in exchange for a payment which they would themselves donate to
charity – paying the money straight to charity effectively makes
the decision for the copyright owner that a particular charity will
benefit from a showing of the film, and whether it might be
classified as ‘fair use’ it is not ‘fair dealing’. The
English courts have developed tests for fair dealing, asking whether
the act complained of adversely affects the market for the work, and
in appropriate cases whether the amount of the work used is
reasonable and appropriate. The law tries to strike a balance between
the interests of the copyright owner and users of the copyright work.
The first of the new fair dealing provisions
permits acts done for purposes of parody, caricature or pastiche. The
three expressions were not previously known to UK copyright law, but
a recent Court of Justice decision, in Case C-??/???, Deckmyn, tells
us (making unfortunate use of the word ‘original’, in a different
sense from its normal copyright sense) that a parody must ‘fulfil a
critical purpose; … display humorous traits; seek to ridicule the
original work; and not borrow a greater number of formal elements
from the original work than is strictly necessary in order to produce
the parody’. So parody is concerned with poking fun at (or what in
my childhood we would have called ‘macking gam’ of) a work rather
than its creator.
The UK Intellectual Property Office has published
guidance on the new regulations in which it states:
In broad terms: parody imitates a work for
humorous or satirical effect. It evokes an existing work while being
noticeably different from it. Pastiche is musical or other
composition made up of selections from various sources or one that
imitates the style of another artist or period. A caricature portrays
its subject in a simplified or exaggerated way, which may be
insulting or complimentary and may serve a political purpose or be
solely for entertainment.
The Hargreaves Review concluded that the
uncertainty about whether parody, caricature or pastiche required
the copyright owner’s permission was restricting the activity of
creative people and businesses. But there was little uncertainty:
under the law as it stood then, these activities required the
copyright owner’s consent if the whole or a substantial part of a
work were taken. If the parody did not take enough of a work to
amount to infringement, there would be no infringement. Why should a
parody ever take a substantial part of a copyright work? If the
parodist is doing their job properly, the parody will put the reader,
listener or viewer in mind of the work being parodied but without
taking anything from it in a way that might constitute and
infringement.
The scope of the exception will depend to a great
extent on the interpretation placed on certain expressions by the
courts – the Regulations have done little to create legal
certainty. In particular, the judges’ view of what amounts to ‘fair
dealing’ and how they balance the interests of the copyright owner
and the user. The wording of the provision does not expressly exclude
commercial use, so one interesting matter will be the extent to which
the courts permit commercial activities under this head: if the use
deprives the copyright owner of income, it is unlikely to be treated
as fair dealing.
Quoting from a copyright work is permitted
provided a number of conditions are met. First, the work must have
been made available to the public. The use of the quotation must
amount to fair dealing with the work, the extent of the quotation
must be no more than is necessary for the specific purpose for which
it is used, and the quotation must be accompanied by a sufficient
acknowledgement. The last requirement, which reflects conditions
attached to other fair dealing uses and for which the courts have
developed detailed rules, will not apply if ‘impossible for reasons
of impracticality or otherwise’. To treat something which is merely
impracticable as an impossibility stretches the point: this is a new
meaning of the word ‘impossible’, perhaps. At least the
‘otherwise’ bit is vague enough that it is qualified by the
‘impossible’.
The rule about quotations from a performance or
sound recording (in the modern world, one of the most important areas
for quotation) is much the same, but there is no ‘sufficient
acknowledgement’ requirement.
Private copying by an individual is now permitted
provided that they have lawfully and permanently acquired the copy
from which the copy is made. The new copy must not be made for
commercial ends – which surely hardly needs to be stated expressly,
as it would not be a private copy if it were. Private copies of
computer programs will not be permitted under this provision.
The new private copying provisions have been
controversial. The relevant EU directive stipulates that there must
be a mechanism for compensating the copyright owner in any system for
private copying introduced by a Member State. A parliamentary
committee warned earlier this year that the UK might be in breach of
its treaty obligations if it did not include such a mechanism, but
the government after further reflection went ahead without one,
claiming it is unnecessary. It relies on the fact that the directive
says no mechanism is needed if the harm done to rights owners would
be ‘minimal’. The government seems to be taking an optimistic
view of how the new permitted act might work – and UK Music,
claiming that musicians will lose £58 million in revenue, is
considering whether to launch a legal challenge to the new
legislation.
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