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.

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events defence respects freedom of expression, it is clear in some circumstances it does such as with photographs, whereas in others such as the meaning of current events, a restrictive approach has been adopted which can be detrimental to journalists. However, in rare cases where fair dealings will not adequately protect freedom of expression , S171(3) of the CDPA provides the ability to restrict the enforcement of copyright on the ground of public interest.

Criticism and Review and quotation

Criticism and review outlined in S30(1) CDPA states that in order to rely on the defence the dealing must be for the purpose of criticism and review, the work must have been previously in the public domain, the dealing is fair and there is sufficient acknowledgement of the author . Similarly to the defence of current events, criticism and review also has a wide scope and is to be interpreted liberally. In Hubbard Lord Denning stretched the meaning of criticism and review to include not only the literary style but also the thoughts and philosophies underlying it. However, following case law, the defence of criticism and review is unavailable to works where the same information has been provided with no intention to introduce additional comment . In terms of freedom of expression, this can constrict the supply of factual information the media (or other industries wishing to rely on the defence) is able to provide.

Following the implementation of Directive 2001/29 on the harmonisation of copyright laws, it became unfair to criticise a work which was unpublished. Arguable for good reason, this new rule may have been based on economic grounds as first publication is going to be more successful than latter ones. However, it can be concerning considering a lot of information is often leaked in the media industry which can carry with it political and cultural interest and therefor public concern. Burrell has described this new rule as “excessive” possibly due to the idea that unpublished or not, if a work is of great public interest, it should be considered to be covered under the defence. Academics such as Masiyakurima, recognise the lack of consideration given to public interest and the publics freedom of expression to receive information. A case which illustrates how restrictive the new rule can be is the Prince of Wales v Associated News Papers . In this case, the defence failed as the diaries under scrutiny had previously not been made available to the public. However, prior to the implementation of the directive, the defendants would have stood a reasonable chance of succeeding through criticism and review through S30(1).

It had been acknowledged by Laddie that the pre-condition of public availability is not conclusive and in cases of legitimate public controversy the use of leaked materials will be allowed. Although this still seemed restrictive on Art 10 rights for investigative journalists who thrive of leaked materials, there was some assurance that in cases of deep concern to the public, the defence will be allowed. The first case in which the Court of Appeal addressed the conflict between Art 10 and Copyright protection and public concern was Ashdown . In this case the Sunday telegraph had published extracts of a meeting between Lord Ashdown and other political figures including the Prime Minister. The extracts used brought to light concerns from the public of a planned co-operation between the Liberal Democrats and New Labour. The Telegraph was then sued for breach of confidence and also breach of copyright upon which they appealed. It was clear in this case that the subject matter was that of a public concern, however, Lord Phillips was quick to dismiss the defence without real consideration of them.

A prerequisite when establishing whether the defence of criticism and review (and also reporting current events) is available to the defendant there must have been sufficient acknowledgement of the authors original work. Sufficient acknowledgement is defined in the act as identifying the work in question by its title and author. The biggest concern here in terms of freedom of expression is the use of parody.

Parody

Prior to 2014, a parody would come under the defence of criticism and review. In order for a parody to be protected there would be an assessment following the requirements set out in the statute for criticism and review including that of sufficient acknowledgement. These requirements were particularly difficult to meet as in order for a parody to be successful, the viewer would know who the original author was and know of their work .

However, following the recommendations of Gower and Hargreaves, a new fair dealing exception was introduced in 2014, S30(A)(1) creating an exception for caricature, parody and pastiche satisfying Art 5(3)(k) of the Information Society Directive and having no express requirement to acknowledge the authorship of the work parodied. This facilitates the development of freedom of expression in this area and allows for creativity of creators to continue without the threat of infringement.

The recent decision of the CJEU in Deckmyn the court state that parody is to be “regarded as an autonomous concept of EU Law” , however it gave two requirements. The first is that it evokes an existing work but has noticeable differences; the second, it must be humorous. Parodies often meeting these two requirements, freedom of expression appears to have balanced sufficiently.

However, in ensuring there is no misuse of the parody exception, the government have asserted that the parody must constitute “fair dealing”. I have mentioned previously the factors which the courts are likely to consider. An example in the case of parody is likely to be how much is copied. Often there will be licenses available for creator to buy in order to use a work without infringing. In cases such as these, the defence of parody will not stand where the whole work is used without a license.

Even so, in cases of parody a wide interpretation has been accepted securing a good balance between freedom of expression and Art 1 rights.

Quotation

Prior to 2014, the scope of quotation was narrow and followed the restrictive rules of criticism and review, in particular, the purpose of the use. However, this narrow scope raised doubts on the restriction of freedom of expression. Art 10(1) of the Berne Convention does not limit quotation by the purpose of the use and so the courts were limiting perhaps where they shouldn’t have been. The government responded to these criticisms with the introduction on S 30(IZA) which is not limited by purpose of the use but must only extend no further than