Copyright exceptions in copyright law


Essay, 2016

9 Pages, Grade: distinguished


Excerpt


Content

Introduction

Changes in the UK Copyright Law.

Exception in Education, Research and Teaching

Formats accessible to disabled users

Libraries, Archives and Museums

Works held by public bodies

Application of exception regulations

Conclusion

Bibliography

Introduction

A copyright refers to the right to copy; specifically, a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression. Copyrights give the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.[1] The primary legislation in the UK dealing with matters concerning intellectual property in general is the Copyright Designs and Patents Act (CDPA), 1988.[2] Works eligible for protection under copyrights law are literary works, dramatic works, musical and artistic works, films, typographical arrangement of published editions of magazines and periodicals and sound recordings.[3]

The 1995 Duration of Copyright and Related Rights Regulations has greatly modified the duration of copyrights. Section 12 of the regulations extended the duration of copyright for performances from 50 years to 70 years from the death of the author.[4] In the event the author is anonymous, the copyright lasts for 70 years from the time it was first made available to the public. Thereafter, it expires. Section 13 further provides that copyright for films and sound recordings last for 50 years from the day the recording was made or 50 years after its first release. Cable programs and broadcasts also last for 50 years after the first transmission or broadcast. Typographical arrangements hold the least period and last for only 25 years after the first publication of an edition.

Infringement of one’s copyright can attract criminal proceedings against the perpetrator. However, the infringing party can plead defences in relation to fair dealing. Section 29 of the 1988Act provides a defence where the alleged infringement is the use of the copyrighted material for research or private study. Where the work is used for the purposes of review, criticism or news reporting, the defence of fair dealing is available to the infringing party.[5] Fair dealing defences also lie when the copyrighted material is read in public with acknowledgement,[6] where the work is used for purposes of pastiche, parody or caricature[7] and the incidental inclusion of a copyrighted material by another author.[8] Other defences apply for educational use of copyrighted works and copying and supplying by libraries and archives for personal use or research.[9]

One is considered an author for the purposes of Copyright law where he has made original and significant contribution to an idea the material to be copyrighted entails. In Godfrey v Lees[10] for example, the claimant, an orchestral arranger of songs of a pop group was held to be an author of the groups copyrighted songs even though the group to which he was not a member, owned the copyright. The test of originality was also applied in Levy v Rutley,[11] but the court was reluctant to find joint authorship where there was neither agreement nor intention to that effect.

In 2014, the UK government published five statutory instruments for consideration by the Parliament. These are:

The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations, 2014, The Disability Regulations 2014, The Public Administration Regulations 2014 and The Research, Education, Libraries and Archives Regulations 2014.[12]

Changes in the UK Copyright Law

Before the enactment of the 2014 regulations, infringement of copyright entailed copying, supplying and distributing or otherwise using the copyrighted material without permission, proper authorization from the holder of the copyright of a licensee. The infringing party was liable to pay a fine of up to €50,000 or imprisonment of up to ten years.[13] The regulations have however changed the legal position on copyright law. Third parties can now legally use copyrighted material without seeking permission, allowance or other authorization from the owner of the copyright.[14]

With technical advancement in various fields, it was found fit that copyright law should be modified to adapt with the changes. It was for example noted that amendments were necessary to cater for disabled persons generally. Where copyright law only recognized visually impaired people, the 2014 regulations were adopted. They recognize the rights of deaf, hard hearing and dyslexic people.[15] Exceptions under copyright law are allowed for interpretation of copyrighted material into modes understandable by disabled persons. Copyright law was therefore modified to adapt with the digital migration and the present day modernization.

Exception in Education, Research and Teaching

The recent regulations allow teachers to make use of modern multi-media modes of teaching without infringing a copyright. Educational institutions were accustomed to acquire educational copying licenses. The Educational Recording Agency and the Copyright Licensing Agency were some of the institutions that provided licenses to educational institutions for purposes of recording television broadcasts and making copies of extracts from books.[16] With the legislation of the exceptions, teachers can make copies of copyrighted material for class handouts or record broadcasts for educational use.

Whereas exceptions in fair dealing existed before, the regulations have widened their scope of application. Minor acts such as recreating, copying, translating and distributing copyrighted material for the purposes of teaching is permitted. The use only needs to be fair and reasonable. Educational institutions are thus allowed to display copyrighted information on interactive whiteboards such as websites and books without having to seek permission from the copyright holder.

The exceptions cover the licensing schemes by the agencies and allow educational institutions copy and use copyrighted material even where they do not hold licenses to the material. However, sharing of copies of copyrighted material over secure distance-learning networks requires that the educational institution holds the relevant license. Copying of copyrighted musical, literary, dramatic and artistic works is allowed even by means of reprographic processes such as use of interactive whiteboards and laptops. The regulations capture a fair dealing defence where the work is not used for commercial advantage, where it is used solely to illustrate a point, where the use is purely a fair dealing and it is used with sufficient knowledge.[17]

Copying copyrighted material for non-commercial purposes usually operates as a fair dealing defence. Copying of material for personal study or research therefore does not amount to an offence. Institutions, archives and libraries are permitted by law to allow access of copyrighted material by third parties in their premises. The exception regulations on education and teaching have extended the scope of fair dealing to include copying of not only literary, musical and dramatic works, but also broadcasts, films and sound recordings. However, the use of the material must be fair and reasonable and one must acknowledge the author sufficiently.

However, the use of copyrighted materials still requires authorization from the copyright holder and deliberate infringement can lead to criminal prosecution.[18] The regulations do not dispense the need of institutions to hold licenses for certain types of use. Copying of materials for distribution even for learning purposes does not fall under fair dealing exception as this may undermine the sales of the original teaching materials. Such as use would therefore amount to an offence where the relevant institution does not have authorization or does not hold licenses to execute the use.

Formats accessible to disabled users

Disabled people can now gain easier access to copyrighted material in formats they comprehend. The CDPA defines a disabled person as one who has a mental or physical impairment that prevents him from enjoying a copyright material to the same degree as one who does not have such impairment. Previously, the exceptions to copyright law only provided for visually impaired persons allowing bodies to make Braille versions of copyrighted works.[19] The exceptions however did not apply to other types of impairment such as dyslexia and they also restricted the copyright works to which the exceptions applied.

The exception regulations now permit authorized agencies and other bodies to make and supply copies of works for the use and benefit of disabled people without authorization from the author.[20] This does not amount to an infringement provided that: i) the copies are intended solely for personal use of disabled persons and not for a commercial course; ii) the body seeking to make copies must lawfully posses the copyrighted works; and iii) the accessible copy must not be commercially available.[21] The last prerequisite prevents competition of copies made by bodies by those commercially available produced by the author or copyright owner. The scope of exception has also been left open such that it extends to other forms of impairment that prevent disabled persons from enjoying copyrighted works to the same degree as other able persons. The regulations have simplified the role of bodies in producing and copying copyrighted works for disabled persons by eradicating bureaucratic designation processes. Bodies making the copies are however tasked the duty to keep the record of the copies made and supply those records to the holder of the copyright.

Libraries, Archives and Museums

Cultural institutions usually need to preserve, share and use their collections. The exception regulations have made this not only easier, but also cheaper. As earlier discussed, the exceptions allow cultural institutions and libraries make copies for non-commercial private study and research. The law also permits libraries, archives and museums to make copies of copyrighted material for the benefit of future generations. The copyrighted material should not be available for loaning to the public and should also not be readily replaceable.

Where libraries make copies for students intended to be used for private study and research, the number of copies is restricted to reasonable proportions. The author also needs to be sufficiently acknowledged. Nevertheless, any unfair or unreasonable copying, such as copying of the entire material as opposed to portions of it, may amount to a punishable offence.

Works held by public bodies

There are instances where local authorities or other public bodies hold copyright works to which the author is other than the public body. In this case, the law previously did not allow such material to be accessed by the public online through the public bodies without sufficient authorization by the copyright owner. The current position of the law following the exception regulations allows public bodies to offer online access to copyrighted material without necessarily seeking authorization from the copyright holder. However, this is only permitted where such material is not commercially available to the public. In the absence of such requirement, public bodies would still require authorization from the copyright holder in order to make copies of the copyright material accessible to the public.

Application of exception regulations

The adoption of the exception regulations has been met with criticism from bodies such as the Musicians Union, the British Academy of Songwriters, Composers and Authors and the UK Music. They argue that the exception regulations have no compensation scheme which leads to massive loss by copyright owners estimated at €85M per year.[22] The High Court was led to quashing the regulations in a case brought by the affected parties. The regulations allowed making of copies for private use. This however, was argued to affect the copyright owners negatively and the fact that there was no compensation scheme for loss suffered, there lacked legal redress for affected parties. The exception regulations however still apply in the majority of the cases.

Conclusion

From the discussions above, the exception regulations have prima facie created a lot of freedom in copyright law. Third parties have been allowed easier access to copyright works. The requirement of authorization and licenses from copyright owners had led to a lot of bureaucratic barriers in the access of copyright works. The general public is likely to draw a lot of benefits from the regulations especially with the accessibility of information online. In addition, the regulations still observe the rights of copyright owners by restricting the application of the exceptions.

However, the exceptions are likely to adversely affect copyright owners if not strictly applied. The extension of the scope of fair dealing may be abused by consumers, thus bringing loss to copyright owners. Nevertheless, the exception regulations have brought copyright law up to date with the digital migration and eased the access of copyright material to persons with disabilities. The regulations also seem to be geared towards promoting education and preservation of material for the benefit of future generations. Furthermore, the possible loss to copyright holders is likely to be negligible.

Bibliography

Primary Sources

Statutes

The Copyright, Designs and Patents Act, 1988

The Copyright Act, 1956

The Copyright Act, 1911

The Duration of Copyright and Rights in Performances Regulations, 1995

Case Law

Levy v Rutley (1871) 6 LR (CP)

Godfrey v Lees (1995) EMLR 307

Secondary Sources

Articles

Intellectual Property Office, Exceptions to Copyright: Education and Teaching (October, 2014)

Intellectual Property Office, Exceptions: Accessible Formats for Disabled People (October, 2014)

Intellectual Property Office, Exceptions to Copyright: Accessible Formats for Disabled People (2014)

Copyright Service, Copyright Infringement (January 2016) available at http://www.copyrightservice.co.uk/copyright accessed 7 January 2016

Intellectual Property Office, Exceptions to Copyright: Copyright Material Held by Public Bodies (2014)

Intellectual Property Office, Exceptions to Copyright: An Overview (2014)

Intellectual Property Office, Exceptions to Copyright: Guidance for Consumers (2014)

Intellectual Property Office, Exceptions to Copyright: Research (2014)

Intellectual Property Office, Exceptions to Copyright: Libraries, Archives and Museums (2014)

Books

Lionel Bentley & Brad Sherman, Intellectual Property Law (Oxford University Press, 2008)

Marshall Leaffer, Understanding Copyright Law (LEXISNEXIS, 2010)

Simon Stokes, Digital Copyright: Law and Practice (2nd edn, Hart Publishing, 2009)

[...]


[1] Black’s Law Dictionary, 9th edition

[2] UK Copyright Service, UK Copyright Law Fact Sheet (2014) Available at: http://www.copyrightservice.co.uk/copyright

[3] Ibid, supra note 2

[4] H Tina hart, simon clark, and others, Intellectual Property Law (Palgrave Macmillan 2013) 216

[5] Section 30 Copyright Designs and Patents Act

[6] Section 59

[7] Section 9, ibid

[8] Section 31

[9] Section 38-40

[10] (1995) EMLR 307

[11] (1871) 6 LR (CP)

[12] L BENTLY, L., & B SHERMAN,. Intellectual property law. (2014). 223

[13] Copyright Service, Copyright Infringement; available at http://www.copyrightservice.co.uk/copyright

[14] Intellectual Property Office

[15] Intellectual Property Office, Exceptions to Copyright: Accessible Formats for Disabled People (2014)

[16] Ibid, pg 3

[17] Intellectual Property Office, Exceptions to Copyright: Education and Teaching (2014) 3

[18] Intellectual Property Office, Exceptions to Copyright: Education and Teaching (2014) 2

[19] Intellectual Property Office, Exceptions: Accessible Formats for Disabled People (2014) 3

[20] SOAS, Copyright Exceptions for Disabled Users

[21] Such as an audio version of a book or DVD with subtitles for the deaf of hard of hearing

[22] Press Association, High Court Quashes Regulations Allowing People to Copy CDs

Excerpt out of 9 pages

Details

Title
Copyright exceptions in copyright law
College
University of Geneva
Course
Intellectual property law
Grade
distinguished
Author
Year
2016
Pages
9
Catalog Number
V314652
ISBN (eBook)
9783668140578
ISBN (Book)
9783668140585
File size
455 KB
Language
English
Keywords
intellectual property law, CDPA
Quote paper
Ekaterina Zabelina (Author), 2016, Copyright exceptions in copyright law, Munich, GRIN Verlag, https://www.grin.com/document/314652

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