Determining whether a certain, unauthorised use of a work is shielded from liability by means of an exception is not an easy exercise. Things may get even more complicated if the applicable law is that of a country, eg the UK and all the other EU Member States, that does not have an open-ended fair use-style exception but rather requires one to, first, identify what exception might be applicable to the case at hand and, secondly, verify that all the relevant conditions for the application of that particular exception are satisfied.
As part of my IP Materials Series, I have prepared a high-level checklist for my students (currently busy with their IP revision) of the questions to ask when determining whether a certain exception in the Copyright, Designs and Patents Act (CDPA) is actually applicable to the case at hand.
[Of course, the checklist is only meant as a study aid, and does not pretend to be an exhaustive assessment of UK copyright exceptions. It should be noted that in any case consideration of exceptions follows logically the establishment of a prima facie infringement, as I tried to explain in my Copyright Infringement Checklist]
Here we go:
The rationale of the various questions
Answering questions a) and b) serves to rule out at the outset the applicability to the particular case considered of exceptions whose beneficiaries are limited (eg in the case of exceptions for libraries, archives, public administration, educational establishments, persons with disabilities) or only apply to certain types of works (eg computer programs or databases). In a sense, these are preliminary questions to be considered and addressed.
The core of the assessment regarding the applicability of a certain exception to a specific instance is answering questions c) to e).
Question c) requires consideration of whether a certain exception requires a number of conditions to be satisfied. For instance, the new (introduced in 2014 and yet to undergo judicial consideration) exception for quotation within section 30(1ZA) requires that: (1) the work has been made available to the public; (2) the use of the quotation is fair dealing with the work [this would go under question e)]; (3) the extent of the quotation is no more than is required by the specific purpose for which it is used, and (4) the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
Question d) requires one to determine whether the exception considered is only applicable to use of a work for certain, specified purposes. While section 30(1ZA) does not require that the quotation is made for any particular purposes, the same is not the case for other exceptions, such as criticism o review (section 30(1)), news reporting (section 30(2)), caricature, parody or pastiche (section 30A).
Question e) is a crucial one for those exceptions that are framed within fair dealing. The CDPA does not contain a definition of ‘fair dealing’, nor does it stipulate what factors are to be considered when assessing whether a certain dealing with a work is to be considered fair. The notion of ‘fair dealing’ has been thus developed though case law from the perspective of a “fair-minded and honest person” (Yelland), and has been traditionally been considered a matter of degree and impression (Hubbard). A number of considerations may inform the decision whether a certain use of a work is fair, although the relative importance of each of them will vary according to the case in hand and the dealing at issue. Citing with approval a passage from leading UK copyright treatise on The Modern Law of Copyright and Design by Laddie, Prescott and Vitoria, in Ashdown [recently recalled by Arnold J in Fanatix, noted here] Lord Phillips noted the impossibility of laying down
"any hard-and-fast definition of what is fair dealing, for it is a matter of fact, degree and impression. However, by far the most important factor is whether the alleged fair dealing is in fact commercially competing with the proprietor's exploitation of the copyright work, a substitute for the probable purchase of authorised copies, and the like ... The second most important factor is whether the work has already been published or otherwise exposed to the public ... The third most important factor is the amount and importance of the work that has been taken. For, although it is permissible to take a substantial part of the work (if not, there could be no question of infringement in the first place), in some circumstances the taking of an excessive amount, or the taking of even a small amount if on a regular basis, would negative fair dealing."
Finally, answering question f) requires one to consider other factors that might have an impact on the actual applicability of a certain exception. So, for instance, while applicability of the exception for caricature, parody or pastiche within section 30A cannot be overridden by contract (such terms would be unenforceable), the exception is without prejudice to an author’s moral rights.
To clarify further the approach required under UK law, the table below considers the case of an unauthorised, slightly altered reproduction of an extract from a third-party literary work (eg a novel) and the possible considerations to be undertaken regarding whether the criticism or review (section 30(1)), quotation (section 30(1ZA) or parody (section 30A) exceptions would be applicable [note that is it not excluded that other exceptions might also come into consideration, eg news reporting] to the defendant’s act (of course, all this assuming that in the case at hand there is a prima facie copyright infringement):
Is the exception limited to certain, specified beneficiaries?
Is the exception limited to certain subject-matter?
Are the conditions provided for in the relevant provision respected?
Does the relevant provision envisage that the use is for a certain specified purpose?
Must the use at hand be ‘fair dealing’ with the work in question?
Other considerations (eg contractual override)?
Criticism or review (section 30(1) CDPA)
(1) Sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise)
(2) Work has been made available to the public
Yes: criticism or review
Quotation (section 30(1ZA) CDPA)
(1) Work has been made available to the public
(2) Extent of quotation is no more than is required by specific purpose for which it is used
(3) Sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise)
[fair dealing is under question e)]
Yes: contractual override prohibited
Parody (section 30A CDPA)
Yes: contractual override prohibited
[Originally published on The IPKat on 11 April 2017]