Safeguards in UK Copyright Law

It has been said that intellectual property legislation is structured around a fundamental conflict, which involves the balancing of the copyright owner’s private rights with the rights of the public. The entire body of copyright law is, to a large extent a balancing exercise, which attempts to accommodate both these contradictory goals. Traditionally, the courts have utilised various statutory and common law methods of reconciling the need to secure economic return to the copyright owner and the need to safeguard public access to protected information. Analyse and discuss the various safeguards in UK Copyright Law that are used to protect owners rights whilst allowing public access to protected information

One of the most cited justifications for the existence of intellectual property rights is the protection of the intellectual and economic interests of the holder of the intellectual property rights. However, there is also a clear public interest in being able to access and use copyrighted materials, which must be balanced against the interests of the copyright holder. This question focuses on the question of in what circumstances the public is permitted under UK law to make use of copyrighted materials. This essay will critically analyse these exceptions to the rules relating to copyright infringement with regards the balance they strike between the economic and intellectual rights of the owner’s rights and the public’s access to copyrighted information. The essay will then go on to examine other developments in UK copyright law that arguably strengthen the position of the copyright holder vis-à-vis the public, and will argue that the law of copyright in the UK currently strikes an acceptable balance between protecting the rights of the copyright holder and allowing the public access to copyrighted information.

The law relating to copyright is contained in the Copyright Designs and Patents Act 1988, which contains a number of circumstances in which the use of copyrighted material will be permitted, otherwise known as the ‘permitted acts’. These permitted acts are defences to copyright infringement, but there are also a number of other defences to copyright infringement that are not permitted acts, for example lack of jurisdiction, that the act done does not fall within the restricted acts, or that copyright does not subsist in the work in question. This essay will however focus on the permitted acts in analysing whether the interests of the public in being able access copyrighted works is fairly balanced against the rights of copyright holders under the law.

Perhaps the most commonly invoked defence to copyright infringement is that of the permitted acts, contained in Chapter III of Part I of the Copyright, Designs and Patents Act 1988. Chapter III lists a number of situations in which copyrighted material may be published without infringing copyright. These include the making in domestic circumstances of recordings for the purposes of enabling the programme to be watched at a later date (the time-shifting exception). [1] In the cases of acts that fall within Chapter III of the Act, it is not necessary to demonstrate that the use of the copyright material amounted to fair dealing; it is sufficient simply to show that the acts fell within one of the permitted uses. The existence of the permitted acts provisions within the Act is an acknowledgement that in order to properly enjoy certain types of copyright material, the public must be allowed a certain degree of latitude in the way in which they are able to access that material. So for example, tape recording a radio show or television programme in order to watch it later in the day, or photocopying pages from a library reference book in order to use the information to write an essay are all necessary acts in order for the public to be able to enjoy the radio show, programme or book. Allowing these acts under the law and acknowledging that they do not amount to copyright infringement is evidence of the balance that the law seeks to achieve between the rights of copyright holders and the public interest in being able to access copyright works.

In addition to the permitted acts exemptions from copyright protection, the CDPA 1988 also provides a defence of fair dealing against copyright infringement in the context of reporting current events; “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 … it is accompanied by a sufficient acknowledgement.” [2] Part of the rationale behind this aspect of the fair dealing exception to copyright infringement is that it is almost always in the interest of the public to be made aware of current events and what is happening in the word, for example through news broadcasting. If the use of copyright material was completely excluded in such situations there is a danger that this could prevent the dissemination of information, thus reducing the public access to information about important current events.

In addition, it is not usually in the public interest for one person or company to have exclusive copyrights over information or material in which the public has an interest in the sense of desiring to access the information, since this can result in a monopoly situation in which the holder of the copyright is able to use their exclusive right to exploit the copyright. A good example of this is the copyright of broadcasting companies in major sporting events. As Tom Simpson has noted, “where a broadcaster has negotiated exclusive rights to show footage of a sports or other event, it would not be in the public interest for that broadcaster to have a complete monopoly over the footage.” [3]

In the context of sporting events, the last major case regarding what amounts to ‘current events’ and what can be said to be ‘fair dealing’ was the case of British Broadcasting Corporation v. The British Satellite Broadcasting Ltd [1991] 3 All E.R. 833. In that case the BBC brought a case against BSB for copyright infringement on the basis that BSB had used extracts from the BBC coverage of the 1990 World Cup finals in their broadcasting. The extracts lasted between 14 and 37 seconds and were shown four times each on BSB programming in the 24 hours following each match, with the source of the programming acknowledged as being the BBC. BSB raised the defence of fair dealing, which was accepted by the court. Mr Justice Scott, referring to Lord Denning’s comments in Hubbard v Vosper [4] stated that “It is impossible to define what is “fair dealing” … but, short extracts and long comments may be fair … after all is said and done, it must be a matter of impression … the quality and quantity of BBC copyright material used in each programme seemed … consistent with the nature of a news report and to be no more than was reasonably requisite for a television news report …”. As such, it seems as though the courts have been willing to ascribe a fairly wide interpretation to the notion of fair dealing, with the result that public access to protected information is generally fairly permissive. In the context of the broadcast of sporting events, or other valuable footage this presents a difficult balance to be struck: On the one hand, the price paid by broadcasters for the exclusive right to broadcast significant events such as the World Cup is extremely high, and is based on the fact that they and only they will be permitted to broadcast the event, ensuring themselves a large audience share. To this extent, it is important for the law of copyright to protect the copyright holder’s economic investment in the protected material by limiting the circumstances in which it can be used by others without incurring penalties for breach of copyright. On the other hand, there is a clear public interest both in being able to access significant events such as the World Cup through a variety of sources, and also in being provided with choice as to the source they choose to absorb the information through. It is submitted that the liberal judicial interpretation of the fair dealing defence strikes a good balance between these competing considerations: The rights of the copyright holder to broadcast the entire event as it occurs are protected, while the right of the public to choose the source of their information is protected because they are able to view short extracts through other providers.

The Chapter III stated exceptions and the exception of fair dealing in the UK as a mode of balancing the interests of the public in accessing protected information and the rights of the copyright holder can be contrasted with the fair use defence to copyright infringement in the United States of America. The US doctrine of fair use derives from the First Amendment right to freedom of speech under the US Constitution, and is contained in s. 107 of the US Copyright Act 1976. The fair use exception provides a general exception for any use of copyrighted material that amounts to a fair use, and unlike the UK law which specifies a number of acts that are permitted as fair dealing, the US law does not specify what acts will be considered fair use; the decision as to whether an act amounts to fair use is a matter for the courts. In comparison to the US law on fair use, the UK narrow list of permitted uses and fair dealing situations is therefore somewhat restrictive. Tony Ballard has noted with regards the difference between the UK and US laws; “Ultimately the two systems are aiming at the same objective, but in the United States there is one section in the Copyright Act to establish the fair use principle and it is the courts which are left to strike the balance by applying the principle in accordance with guidelines or criteria set out in s.107. In contrast, in the United Kingdom, and indeed in Europe generally, the balance is struck by the legislators themselves.” [5]

As such this can be viewed as an example of how the UK law on copyright unfairly favours the rights of copyright holders over those of the public in accessing copyright information. [6] This being said, it is not necessarily the case that the US system does in reality provide a more permissive system for the use of copyright material by the public than the UK system does. Although the US system appears to provide a more flexible system of allowing for the use of copyright material by the public, when the decision as to what should constitute an acceptable use of copyright material is left largely to the courts there is always a chance that the courts will interpret the law in a less permissive way, thereby restricting the ability of the public to access protected works and reinforcing the rights of the copyright holder. [7] It is no coincidence that much of the copyright litigation involving online files sharing has taken place in America, where the courts have generally shown themselves to be unsympathetic to the plight of the public who have an interest in accessing copyright material.

One of the most controversial exceptions to the prohibition on copyright infringement is the public interest exception, which allows the publication of copyrighted material where to do so is in the public interest. Cases in which the public interest defence is raised often involve the publication of copyrighted information that in some way embarrasses the copyright holder or another person. For example, in Lion Laboratories Ltd v Evans, [8] the defendant newspaper wished to publish information relating to the reliability of a piece of equipment used to measure blood alcohol levels. The claimant obtained an injunction to prevent the defendant from publishing the information, on the basis that publication would infringe copyright. The defendant’s appeal against the injunction succeeded on the basis that they were entitled to raise the public interest defence to breach of copyright. In reaching their decision the court were eager to stress that what was in the public interest was not always the same as what the public was interested in. which is a key notion when assessing the extent to which the public interest in being able to access protected information is protected under copyright law. In general it seems that where the copyrighted material in question relates to the public health or morals, the courts have generally been willing to accept that the public interest in accessing the protected information overrides the copyright holder’s rights. For example, in Beloff v Pressdram [9] , Ungoed Thomas J suggested that the circumstances in which a public interest defence to copyright infringement would include the disclosure of “matters medically dangerous to the public.”

In Hyde Park Residence Ltd v Yelland [10] the court held that the CDPA 1988 does not give the courts the power to enable an infringer to use another’s copyrighted material on the basis that to do so would be in the public interest. However, the court in Yelland held that the court did have an inherent jurisdiction to refuse to enforce copyright where to do so would offend against the public interest. Yelland related to the publication of stills from a video surveillance camera showing Princess Diana and Dodi Al Fayed leaving Mohammed Al Fayed’s house the day before they were killed in a car crash. The defendant raised the defences of public interest and fair dealing for the purposes of reporting current events. Both arguments succeeded in the Chancery Division, in which Jacob J noted that there were two forms of public interest defence; that of denying copyright altogether, and that of acknowledging the existence of copyright, but raising public interest as a defence to infringement. However, when the case reached the Court of Appeal, Jacob J’s decision was overturned, and judgement was given in favour of the claimant for copyright infringement, since there was no discernable public interest in publishing the photographs.

Although it is unclear in what precise circumstances the courts will deem enforcement of copyright to be offensive to the public interest, Aldous LJ in Yelland did list the circumstances in which he thought a court would be justified in refusing to enforce copyright as being where the work is ‘(i) immoral, scandalous or contrary to public life; (ii)injurious to public life, public health and safety or the administration of justice; (iii) incites others to act in a way referred to in (ii)’. These circumstances indicate the types of circumstance in which the court will consider that the balancing exercise between the rights of the copyright holder and the rights of the public to access information; Generally speaking the courts will only accept the defence of public interest where the information contained in the copyrighted information has the potential to affect the public in some way. This seems to strike the correct balance between the two sets of competing rights; clearly copyright holders should not be entitled to rely on the copyright laws in order to keep information in which the public has an interest and which may affect the public adversely or enable the public to better protect themselves from harm. However, the public does not have a right to access information simply on the basis that it is salacious or interesting to them where doing so involves breaching the intellectual property rights of the copyright holder. By limiting the use of the public interest defence to cases in which the relevant information has the potential to affect the public the courts manage to strike a fair balance between the rights of the public and the rights of the copyright holder.

In addition to cases involving copyrighted material that contains information relating to public health and circumstances in which the copyright holder has in some way forfeited their rights, the public interest defence has also been successfully invoked on the grounds of freedom of speech in defeating injunctions in cases in which the defence of fair dealing is to be raised. For example, in Kennard v Lewis [11] , the claimant had published a pamphlet entitled 30 Questions and Honest Answers about CND. The defendant published a similar pamphlet entitled 30 Questions and Honest Answers about CND, with regards which the claimant sought an interim injunction restraining publication. The defendant raised the defence of fair dealing, and the court held that as a principle the court should not allow injunctions against copyright infringement where to do so would restrain free speech or political controversy.

Balanced against the public interest justification for copyright infringement must be the private interest of the copyright holder in protecting their right not to have private copyrighted information made available to the public. In HRH the Prince of Wales v Associated Newspapers Ltd [12] , Blackburne J acknowledged that an individual copyright holder should receive a particularly high level of protection for their rights in cases in which the copyrighted material is personal or sensitive such as a personal diary, as was the case in Associated Newspapers. In seeking to balance the rights of the public to access protected information and the rights of the copyright holder it seems right that the weight attached to the rights of the copyright holder should be greater in cases involving personal copyrighted information such as a diary, since the public interest in accessing such information lies predominantly in its entertainment value rather than in any actual need to know the information.

In some cases, the acts of the copyright holder will be such as to reduce the weight attached to their interests when balancing them against the public interest in accessing copyrighted material. This will be the case where the copyright holder has committed a criminal act in producing the copyrighted material, or where the material relates to some wrongdoing on the part of the copyright owner. For example, in the Spycatcher case, Attorney-General v Guardian Newspapers Ltd [13] , the House of Lords indicated that they would refuse to enforce copyright in the Spycatcher novel because of the author, Peter Wright’s, behaviour in divulging national secrets. This arguably indicates that in some circumstances the copyright holder’s behaviour can be such as to weaken or even negate their rights when balanced against the information in which they hold copyrights.

The exceptions that can be invoked to justify an act that would otherwise amount to a breach of copyright generally speaking represent concessions on the part of the law to the public interest in being able to access and use information that is the subject of copyright protection. However, in recent years there have been a number of developments in the field of copyright that tend to suggest that the law is moving in the opposite direction in ascribing greater rights to copyright holders as compared with the public. For example, the Copyright Designs and Patents 1988 for the first time in UK law introduced the concept of moral rights for copyright holders; previously such rights could only be enforced through the torts of defamation, passing off and malicious falsehood. [14] The author of copyright material now enjoys the following moral rights; The right to be identified as the author or the director [15] ; The right to object to the derogatory treatment of work [16] ; The right to object to the false attribution of work [17] and; The right to privacy of certain photographs and films [18] . These rights are held only by the author of the work, and cannot be transferred to anyone else, [19] but can be waived with consent. [20] The moral right to object to false attribution lasts for 20 years after the death of the author, however the other moral rights last for as long as copyright subsists in the work. [21]

The recognition in copyright law of the moral rights of the author of work in which copyright lies is to some extent indicative of a strengthening of the position of the copyright holder vis-à-vis the public, in that the copyright holder has attracted a new set of rights. However, the nature of the moral rights are such that the relationship that is most affected by the new rights is not the relationship between the public and the piece of copyright work, but rather the relationship between any person to whom the author of the work assigns copyright and the copyrighted work. The moral rights of the author prevent those who purchase the copyright in a work from defacing the work, or claiming the work as their own or someone else’s. In this respect, the addition of moral rights to the catalogue of rights enjoyed by the author of copyrighted material does not substantially affect the balance struck between the rights of the author of copyrighted work and the public interest in accessing the copyrighted information.

One obvious alternative to the current copyright regime in the UK would be to simply relax some of the existing modes of protection for copyright holders by, for example, reducing the standard copyright term. However, another more extreme alternative to the current copyright regime in the UK has been suggested by Lawrence Lessig, who favours the abolition of copyright laws altogether. In his book, ‘Free Culture’, which is made available on the internet, Lessig argues that copyright laws stifle creativity and rather than being utilised for the benefit of individual authors and artists instead benefit only large corporations interested in profit maximisation. [22] Although Lessig’s argument is compelling from an emotional perspective, in reality it is difficult to agree that dispensing with copyright laws altogether would be advisable or fair. For those authors who do dedicate their energy and resources into producing original work it is important to reward their efforts and their intellect by ensuring that it is possible for them to make a profit from their exercises. If we were to dispense with copyright laws altogether it would mean that for many aspiring authors and producers of copyright content the prospect of producing works would be economically unviable since there would be no guarantee that if successful their work would not simply be copied without their permission and they would receive no financial return on their investment. This would be just as likely to stifle creativity, by pricing potential creatives out of the market, as Lessig claims the current system does.

In conclusion, this essay has analysed the various ways in which the UK law of copyright seeks to protect the rights of copyright holders while also permitting an acceptable level of access to protected works by the public. Although there are arguments to be made in favour of greater or less protection for copyright holders in the UK, it is submitted that the analysis of this essay has demonstrated that the current legal regime under the Copyright Designs and Patents Act 1988 and the common law strike an acceptable balance between the moral, economic and privacy rights of the copyright holder in protecting their intellectual and economic investments in the copyrighted material. However, through the exception of permitted acts and the defences of fair dealing and public interest the law also allows for public access to protected information in circumstances in which the public interest in access outweighs the rights of the copyright holder, such as in the case of fair dealing or public interest, or in cases in which acts that would otherwise amount to a breach of copyright do not have a discernable negative impact on the copyright holder, as in the case of permitted acts such as time-shifting.