Critically Evaluate the Extent to Which the “fair Dealing” Defences to Copyright Infringement Contained in the Copyright, Designs and Patents Act 1988 Respect the Right to Freedom of Expression.

Critically evaluate the extent to which the “fair dealing” defences to copyright infringement contained in the Copyright, Designs and Patents Act 1988 respect the right to freedom of expression.

Introduction

Copyright creates a partial monopoly, by which a person is able to protect their work from unauthorised exploitation constituting an infringement . However, Chapter III of the statutory basis of Copyright law in the UK, the Copyrights, Designs and Patents Act 1988 (CDPA) , outlines several defences which can be used in order to place limits upon the rights of the author.

The focus of this essay will be on the fair dealing defences, primarily; current events, criticism and review, quotation and parody. In these situations, one can make use of a work without the threat of copyright infringement, reflecting the awareness for the need of freedom of speech within a democratic society . As per Lightman J, the defences are “directed to achieving a proper balance between protection of the rights of a creative author and the wider public interest (of which free speech is a very important ingredient)” . This acts as an internal safeguard to prevent conflict between copyright protection and freedom of expression. In the case of ashdown , Sir Andrew Morritt VC stated that these internal mechanisms built into copyright along with the idea/expression dichotomy is enough to balance copyright against freedom of expression . However, this has been disputed as the courts mustn’t reply purely on these mechanisms. Since 1998 it has been the courts duty to interpret the CDPA in accordance with the Human Right Act (HRA) ensuring that freedom of expression is not unreasonably hindered by copyright . Following the doctrine of proportionality, the courts are to question whether these internal mechanisms are protecting freedom of expression proportionately to protection of copyright instead of the assumption of an embedded balance.

Freedom of expression is a fundamental right incorporated into the European convention of human rights 1998 (ECHR). Article 10 part 1, states that everyone has the right to freedom of expression, including freedom to hold and to receive and impart information and ideas. Part two of the article provides exceptions in which the judiciary are able to restrict freedom of expression in situations proscribed by law and necessary in a democratic society. The CDPA is a clear prescription of the law which is in force in order to necessitate a democratic society. Therefore, the courts are able to rely on Art 10(2) to restrict freedom of expression in favour of copyright protection.

Lord Phillips MR has acknowledged this chance of conflict occurring stating: “copyright is antithetical to freedom of expression”. These conflict occur particularly when discussing the issues of fairness, public availability and sufficient acknowledgement. I will now go on to evaluate each of these to observe the extent to which the CDPA respects freedom of expression.

Reporting current events

The fair dealings defence under s30(2) CDPA allows infringement of copyright when reporting current events, primarily in order to protect the media when informing the public of current events on matters of public concern. The Act doesn’t provide a definition of current events, however, it is clear through common law that reporting current events are expressions of wide and indefinite scope and should be interpreted liberally . For example, in the case of Hyde Park the report on princess Diana was held to be a current event despite the fact that it was released years after her death. This is due to the element of public discussion it carried with it. However, this lack of definition has allowed the courts some discretion when determining what constitutes an event. The courts in Ashdown highlight the importance of the actual event opposed to the current interest attached to it . This means conventionally, that factual reporting of an event is protected by the defence opposed to works of express or implied commentary of interest surrounding the event. The media is a highly competitive business, in order to sell stories commentary is almost necessary. As stated by Jacob J “[press] are not philanthropists”. If part of the work is used for comment on the circumstances, protection under S30(2) may not be available undermining their Art 10 rights. This acts as an illustrative example of how the judiciary limiting opposed to widening the scope.

When evaluating the extent to which current events respect the right to freedom of expression it is important to consider the exclusion of photographs in the defence. The explanation behind this provision seems to be the impact a photo can have, and the value of a visual record . It also benefits the photographers from an economic point of view, as often they work on a freelance basis and so they wouldn’t want their work to be copied freely. Moreover, it acts as an incentive for newspapers to hire photographers as they’re less likely to invest if they’re able to use other photos freely after. In BBC v British Satellite Broadcasting Ltd , the counsel stated that a photo cannot be summarised or shortened in comparison to other works (eg. Literal). Therefore, when copying a photograph, you’re either using it or you’re not. In terms of freedom of expression, this requirement safeguards that expression of the photographers. If photos were included in the act, then market position for photographers could be dangerous .

However, these arguments have been considered by academics as unpersuasive. Photographers take hundreds of photos, most of which don’t reach the media but the ones that do can boost a story and have more of an impact on the public.

It also holds an absolute nature meaning that no matter the circumstances, a photograph will not be included in the defence even irrespective of “the content of the photograph, the circumstances in which it was taken or the willingness of the copyright owner to grant permission for its publication”. This here is a restriction of freedom of expression of the photographer if he/she wishes to permit anyone the use of their work, possibly to get noticed in the industry etc. When considering modern day media, this can severely weaken a story as the exclusion of a photo may not give as much of an impact to the audience and it certainly isn’t as eye catching.

It is unclear as to why photographs are separated from other copyright materials. Understandably, photographs can be considered more captivating and from an economic point of view to the photographers the limits placed are useful. However, surely the same can be said for literary works for example a journalist or someone writing on a blog.

When evaluating whether the current