CDPA 1988: Balancing the Rights of Copyright Users and Holders

Introduction

This essay will analyse whether CDPA 1988 provides a good balance between the rights of copyright users and copyright holders after the introduction of new defences for parody and quotation.

Copyright limitations have been recognised to be necessary for maintaining a balance between the rights of copyright holders and users.[1] [2] Freedom of expression and right to information are fundamental human rights protection of which is guaranteed to citizens of all states following ECHR. Hence, the freedom of expression of the copyright holders is always counterweighted by the very same rights of other members of the public.[3] The balancing of these rights provides a free flow of information within society.[4]

The US approach to copyright law was one of the main influences in the Hargreaves review. Although during the review it was decided that the implementation of such approach would not be possible in UK at this stage it was decided that further opportunities for exceptions to copyright under EU law should be considered. [5] This in part lead to the introduction of new defences of Quotation and Parody on 1 October 2014.[6]

Parody Limitation

Parody has a unique position of being regarded as a form of social and literal criticism having a socially significant value as free speech.[7] Historically, UK law did not have a specific defence for parody and the test for copyright infringement relied on the substantial copying of work and considered whether the labour put it by the defendant was sufficient to constitute original work.[8] The case with most parodies is that the artist often has to use the majority if not the entirety of the original work. Since parody is a satirical take on the original and is supposed to evoke said work, proving sufficient creative labour over reproduction posed difficulty.[9] This approach proved to be restrictive to public freedom of expression.[10]

The introduction of the Parody defence utilises freedom provided by Article 5(3)k of Infosoc and adds a requirements of fairness to qualify the breadth of said freedom.[11] There are no express requirements of acknowledgement of the work or its author unlike in the defence of quotation which will be discussed later in the essay.

The meaning of parody has been discussed in the case of Deckmyn, where it was also recognised as an autonomous concept within EU law.[12] The case concerned Mr Deckmyn, a member of a right-wing Belgian party who produced a modified version of a drawing featured in the Spike and Suzy comic book. The author of the book brought an action against Mr Deckmyn for copyright infringement. Mr Deckmyn’s version of the drawing replaced the main figure with the mayor of Ghent and highlighted his presumed wastefulness of public funds on various minority groups.  CJEU in this instance interpreted parody as having two essential characteristics. Firstly, a parody must evoke an existing work while being noticeably different from it. Secondly, it has to constitute an expression of humour or mockery. The last characteristic became a point of much discussion among the academics, who have noted that the only thing separating copyright infringement from a parody would be court’s sense of humour.[13]  There is no universal notion of humour that would apply across all states, so deciding cases on the subjective comedic value of a parody does not seem feasible. Moreover, it would go against the language in the Deckmyn case itself, where it was stated that the court must strike a fair balance between the interests of right holders and authors and freedom of expression of people. Such decisions would be detrimental to the public freedom of expression and could have produced a chilling effect on the artists and journalists. One has to reasonably assume that what the judges really meant by humour is humoristic intent though it has been suggested that humour could be determined by reference to the reasonable audience, the character of which will depend on the type of work in issue.[14]  The definition of parody introduced in CJEU was rather broad and, on the face of it, would offer more rights to the users of copyright material. However, the court has introduced an additional condition that was not present in the wording of the Infosoc Directive. The court recognised for the need to strike a balance between the rights of copyright holders and the right to freedom of expression. CJEU came to the conclusion that this required an assessment of all the relevant circumstances including the message of the parody. The author can oppose to parody if it contains a discriminatory message and he or she does not want to be associated with said message. This provides more protection of the rights of copyright holders.

Additionally, contractual terms preventing or restricting the making of the parodies under this exception are unenforceable in law, giving more of protection for public freedom of speech.[15]

Although Deckmyn seems to provide a balanced approach to the defence of parody, it has been argued that it may negatively affect the balance of rights in the defence of pastiche, as it will not need to evoke the existing work or constitute the expression of humour and so it may cover mash-ups and other types of derivative works.[16] Therefore, it has been suggested that the current provisions on fair dealing may need  adjustments as it has more differences with the concept of fair balance than was presumed.[17]

Quotation Limitation

Before the addition of the limitation of quotation the defence would only succeed if the fair dealing was restricted to defined purposes of review or criticism of the work.[18] The criticism or review in this case may be of the work in its entirety, a single aspect of it, the philosophy behind it as well as its social and moral implications.[19] The courts have recognised that the identification of the work or performance was necessary to be the center of the criticism or the review in question. The defence therefore adopted a much narrower approach than was endorsed by Berne Convention and Infosoc.[20] As a result, S30(1) CDPA restricted freedom of expression of the users of copyright material. The defence of quotation, on the other hand, is not restricted by the purpose and allows for the copyright material to be copied provided it satisfies the four requirements.[21] Bently and Sherman argue that the term itself must be understood broadly so as to fit with the use of it across different fields in copyright.[22]

This, however, was not affirmed in case law. Sabine Jacque noted that AG’s definition of quotation in Painer, adopted an approach to the defence which could exclude music samplers.[23] The AG’s opinion in Painer was supported by Alec Cameron who also commented that samples and other similar activities such as video mash ups may not satisfy the second requirement of the defence which concerns fair dealing.  This issue was dealt with in a recent case of Pelham v Hutter where Advocate General stated that indication of the source can be done in the description of the work or even in its title. In the answer to the question whether defence of quotation can apply to music samples it was held that quotation exception does not apply where an extract of a phonogram has been incorporated into another phonogram without any intention of interacting with the first phonogram and in such a way that it forms an indistinguishable part of the second phonogram’.[24]

The judgment in Painer highlighted the importance of not giving quotation a too narrow definition as it seeks to balance copyright with freedom of expression.[25]  In a guidance preceding the reform UKIPO stated that the new quotation exception would benefit ‘academics, journalists and individuals engaging in online social networks’. [26] This further highlights the importance given to freedom of expression in this defence. Although, AG Trstenjak in this case seemed to favour the stricter conditions, Bently and Sherman note that the court seemed to implicitly reject such conditions and the definition of quotation can encompass a broad range of reuses of copyright material.[27] This seems to tip the scale onto the side of the copyright users, the rights of copyright holders are further protected in the requirements of availability which provides protection for ‘leaked’ materials of copyright holders.[28] Other necessary requirement is fair dealing, which is decided on a such factors as the amount of the original work taken, the effect of the quoting work on the market and the nature of the dealing itself.[29] However, when deciding whether the dealing is fair the courts do not tend to consider whether the criticism is fair.[30] So, the criticism may be misinformed or malicious without forfeiting the defence. In this case the author may try to seek remedy in the law of defamation.[31] As is the case with parody, the quotation defence is also protected from being restricted in contract terms.

Parody and Quotation After Brexit and Proposals for future change

It is difficult to assess to current state of copyright law in UK without addressing the recent political developments. On January 31, 2020, United Kingdom has formally left European Union. The UK copyright law at the present is largely derived from international conventions on intellectual property as well as EU directives. The latter were implemented in CDPA 1988 and thus will remain in force after Brexit. Some changes were made under the authority of European Union (Withdrawal) Act 2018.[32] Nonetheless, sections relating to copyright defences and limitations were not affected. Notably, CJEU decisions will no longer be binding on UK, although the historic CJEU decisions like Deckmyn and Painer will have the same authority status as Supreme court decisions after Brexit.[33] The conventions will also still be binding as they are not affected by the withdrawal.

One of the ongoing criticisms of the CDPA 1988 in the recent years has been the need for modernisation. Since the act was introduced before popularisation of the internet it can be argued that it does not adequately cover online intellectual property. And, as was commented by SAE institute, therefore does not explicitly cover the creative works built by open source coders or app developers, which limits protection of their copyright. [34] An attempt to modernise EU copyright law was made in The European Union Directive on Copyright in the Digital Single Market. Whilst UK copyright law will largely remain the same after EU withdrawal, it will not be modernized under the new directive.

Conclusion

Both quotation and parody are transformative in use and are therefore clearly grounded in freedom of expression and information. Historically UK copyright law favoured the copyright holders, the introduction of the defences of parody and quotation was a step towards a more balanced European approach. Nonetheless, it has led to the emergence of new issues. The approach to parody under Deckmyn seems to be balanced, however the defence of pastiche may prove to be problematic as it will not need to fulfil the requirements of evoking the original work and being humorous. The concept of fair dealing may also have to be reassessed due to its differences to the fair balance approach highlighted in Deckmyn.  Additionally, it seems that the law on quotation may not be able to protect samplers of music unless there is explicit reference to the original track. Otherwise, the requirements to the defence provide for a fairly balanced approach. The provisions on restrictive contract terms for both of the defences provide more protection to the copyright users. Though the introduction of new limitations was a step in achieving balance between users of copyright materials and copyright holders, it did not solve the pressing issues of modernisation. As of right now CDPA 1988 does not provide proper copyright protection to app developers or open source coders who represent a new generation of copyright holders.  The DSM directive could have helped to amend the situation but due to UK’s recent withdrawal from EU, directive will not be implemented. Although a similar legislation may be introduced domestically since UK was one of the largest advocates for the new directive.

Bibliography

Books

Journals and Articles

Table of Cases

• Deckmyn v Vandersteen (C-201/13)

UK Legislation

EU Legislation

• Berne Convention
• Information Society Directive 2001
• Electronic Resources
• https://www.sae.edu/gbr/article-13-constraint-creativity-or-much-needed-update-copyright-legislation

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[1] Resolution on the Communication from the Commission: Follow-up to the Green Paper on copyright and related rights in the information society, European Parliament, A4-0297/97, of 23 October 1997, para 12.

[2] Ibid para 19

[3] Spoor/Verkade, D.W.F. 91993) 187

[4] Lucy Guibault, Molengrafica deel II 1998 Europees Privaatrecht (1st edn, Lelystad: Vermande 1999) 225

[5] Hargreaves, I. (2011). Digital Opportunity: A review of Intellectual Property and Growth

[6] Copyright, Designs and Patents Act 1988, S 30A

[7] Dr. Seuss Enters., LP v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997)

[8] Copyright, Designs and Patents Act 1988, S 30(1)

[9] Williamson Music Ltd and Others v The Pearson Partnership Ltd and Another [1987] F.S.R. 97

[10] Deazley, R. (2010) Taking Backwards the Gowers Review

[11] CDPA (n6)

[12] Deckmyn v Vandersteen (C-201/13) [2014] E.C.D.R. 21

[13] Laetitia Lagarde, 'Parody in the UK and France: defined by humour?' [2016] Thomson Reuters Practical Law accessed 1 January 2020

[14] L Bently and others, Intellectual Property Law (5th edn, Oxford Press 2018)

 251

[15] CDPA S30(2A)2

[16] Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)

[17] Griffiths, Jonathan, Fair Dealing after Deckmyn - The United Kingdom's Defence for Caricature, Parody or Pastiche [2016].

[18] CDPA (n8)

[19] Newspaper Licensing Agency Ltd V Marks And Spencer Plc [2000] EWCA Civ 179; Pro Sieben Media v Carlton Television [1999] 1 WLR 605; Hubbard v Vosper [1972] 2 Q.B. 84; Time Warner v Channel 4 Television [1994] EMLR 1

[20] Ashdown v Telegraph Group Ltd [2002] RPC 5 235, 61; Time Warner v Channel 4 Television [1994] EMLR 1, 15

[21] CDPA 1988 S30(1ZA)

[22] L Bently and others, Intellectual Property Law (5th edn, Oxford Press 2018)

 246

[23] Eva-Maria Painer v. Standard Verlags GmbH and others, C-145/10, ECLI:EU:C:2011:239, [208-209]

[24] Pelham GmbH v. Hütter [2020] F.S.R. 6

[25] Painer (n23) 134

[26] UKIPO, Consultation on Copyright (December 2011) para 7.191. Available at www.ipo.gov.uk/consult-2011-copyright.pdf (accessed 9 January 2020)

[27] L Bently and others, Intellectual Property Law (5th edn, Oxford Press 2018)

 246

[28] His Royal Highness the Prince of Wales v Associated Newspapers Ltd [2006] EWHC

[29] PC Media Ltd v News Group Newspapers Ltd [2005] EWHC 317; Pro Sieben Media v Carlton Television [1999] 1 WLR 605; Fraser-Woodward Ltd v BBC & Brighter Pictures Ltd [2005] EWHC 472

[30] Time Warner v Channel 4 Television [1994] EMLR 1, 12

[31] Pro Sieben Media v Carlton Television [1999] 1 WLR 605

[32] Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019

[33] European Union (Withdrawal) Act 2018

[34] Sae institute, 'Article 13: A Constraint on Creativity, Or A Much Needed Update To Copyright Legislation?' (SAE Institute, 29 April 2019) accessed 1 January 2020