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Intellectual Property Law

‘ Consider the Proposition that there is insufficient guidance in the Copyright, Design and Patent Act 1988 for courts to make logical, justifiable decisions concerning Fair Dealing with copyright works, making reference to recent case law’

Research paper submitted by Rami olwan

LLM in International and Commercial Law

August 1999

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Contents

1. Introduction

2. History of the defence of fair dealing

3. Analysing the statue: trying to define fair dealing

4. Cases

5. Fair Use in the United States

6. Comparison Between UK and US

7. Conclusion

8. Appendices

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FAIR DEALING

Introduction

When I was gathering the materials for this term paper, I noticed some form of connection between what I am doing and the question raised. I asked my self why the law allows me to do so? Am I just taking the labour, skill and judgement that the authors demonstrated in their books which many of them spent a considerable part of their lives writing?

Intellectual property protects the effort and creativity of human intellectual thinking, copyright is one form of protection. The primary purpose of copyright is to make a balance between the interests of the authors, composers, and artists to allow them to exploit their works to benefit economically, and the interests of the society and the individual to use these kind of works when ever good reasons allows that. One of the good reasons is the defence of Fair dealing to copyright infringement, the defence of fair dealing enables humans to build on each other work if it is done for the purpose of research and private study or criticism and review.

In this term paper I will talk about the history of the defence of fair dealing from the 1911 Copyright Act through the 1956 Copyright Act and the Copyright Design, Patent Act of 1988. Then I will try to analyse the statute under two separate headings research and private study, criticism, review and news reporting. I will examine the recent cases concentrating on the ones after the 1988 Act and at the same time referring from time to time to important cases decided earlier. I will also talk about the defence of fair use in the United States, which based its origin on English Common Law. A comparison must also be drawn between both respective Jurisdictions in the UK and the United States.

In conclusion I will try to answer the question raised, giving also my own opinion of what is hoped from parliament when introducing again the defence of fair dealing. Hoping at the end that I will interest the reader.

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History of the Defence of Fair Dealing

Tracing back the origin of the defence of fair dealing it becomes known that the defence is not wholly new. It has been since the 1911 Act (even before that when the defence was Common Law not Statutory one). At the beginning it was applied only to research or private study, criticism or review and newspaper summary 1'in relation to literary, dramatic, musical artistic work 2' Then Section 6(1) of the 1956 Act divided the purpose of fair dealing into three distinct groups - research or private study3

criticism or review 4 and reporting current events which were categorised under two separate headings 5 - (a) newspaper, magazine, similar periodical; (b) broadcasting or in a similar cinemagraph film. Also sufficient acknowledgement were introduced for the first time in relation to criticism or review and reporting current events in newspapers, magazines or similar periodicals.

The defence of fair dealing became more sophisticated when introduced in the Copyright, Design and Patent Act 1988 under Sections 29(1-4) Research and private study and Section 30(1-3) criticism, review and news reporting. For the first time the Act mentioned typographical arrangement of a published edition,6 also copying by a person other than a researcher or student himself7 and fair dealing with computer programms8. The 1988 Act made the defence applicable to sound recording, films, broadcasts and cable programmes and retained the requirement of a sufficient acknowledgement9

which was introduced earlier with the exception that they are not yet applicable to reporting current events by means of a sound recording, film, broadcast or cable programme10.

1 Section 2(1) I "the following acts shall not constitute an Infringement of copy right: (t) any fair dealing with any work for the purpose of private study, research, criticism, review or newspaper summary" 2 David Bradshaw. "Fair Dealing as a Defence to Copyright Infringement in UK Law - An Historical Excursion from 1802 to the Clockwork Orange Case 1993 – DLJ. pp 67-90 3 Section 6(1) 1956 Act 4 Section 6(2) 1956 Act 5 Section 6(3) 1956 Act 6 Section 29(2) I988 Act, appendix 1. p. 1 7 Section 29(3) 1988 Act, appendix 1,p.1 8 Section 29(4) 1988 Act, appendix 1, p1 9 For summary of the history of the defence of fair dealing please see – British Broadcasting Corporation v. British Satellite Broadcasting Ltd 119911 3 WLR 174 10 Section 30(3) - Criticism, review and news-reporting - CDPA 1988 - Appendix 1. p. 2

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From the above-mentioned discussion it should be noted that the defence of fair dealing is becoming more developed each time parliament introduces it into new legislation and also the rapid influence and spread of technology which human beings are facing is influencing our law and living.

Analysing the Statute (Section 29-30)

Fair dealing in the Copyright, Design and Patent Act 1988 is divided into two separate headings: research, private study and criticism, review and news reporting. I shall examine every separate heading individually.

S.29 Research and Private Study Trying to define fair dealing?

The first question to ask is what to we mean by fair dealing? The concept of fair dealing is not defined in the Copyright and Patent Act 1988 (even in the 1911, 1956 Acts), it is said that "some guidance can be found in S 29(3) with respect to multiple copying for the purpose of private study and research’ 11 , Lord Denning's view in Hubbardv. Vosper is that "it is impossible to define fair dealing ... it must be a matter of impression....", although Lord Denning did not attempt to define fair dealing he identified three factors which will ordinarily be relevant in determining whether a particular use is fair. Firstly, the number and extent of quotations and the extract, secondly, the use made of the quotations and the extract. Thirdly, the proportion of the work consisting of quotations and extracts should be compared to the proportion of the work.

This depends on every case individually. If the work is lengthy, the copying of a substantial part of it is unlikely to be far, whereas if the work consists of a substantial part it is unlikely to be fair12. But why Parliament did not try to define this concept through all these acts "due to the vast range of kinds of copyright materials and mode of use13 and also it is submitted that judges are more capable of deciding whether the use is fair or not as said previously it is a matter of impression and having a rigid definition, might restrict judges' discretion.

11 Catherine Colston. Fair Dealing: What is Fair?, DLJ. 1995, p.91 12 Hubbard v. Vosper [1972] I ALL ER 1023 13 Robert Merkin, Copyright Design and Patent Act - The New Law, (first edition). Longman Group UK Ltd. 1989

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Having attempted to define fair dealing and failed to do so. We can say that in certain circumstances there will be no infringement of copyright and there are good reasons. r for copying, if that copying will nevertheless benefit either the individual or society and on the other hand won't harm the exclusive rights of the copyright owner.

An objective test: the question whether the use is fair or not is tested objectively against the party using the copyright work. The critic and reviewer's state of mind is a helpful factor but not determinative14

Literary. Dramatic, Musical or artistic -work (not sound recording film and cable Programmes

Fair dealing is permitted in relation to literary, dramatic, musical or artistic but what is literary, dramatic musical or artistic work? I shall discuss briefly every kind of work under a separate heading.

1. Literary Work

Literary work is defined by the Copyright, Design and Patent Act 1988 Act as "any work which is written, spoken and accordingly includes (a) a table or compilation, (b) a computer program and (c) preparatory design material for a computer program.15. In University of London Press Ltd v. University Tutorial Press 16 " Peterson, J considered what constituted literary work. He said "the word literary work covers work which is expressed in print or writing irrespective of the question whether the quality or style is high"

Also Stephenson, L J17 said, "A literary work would be something which was intended to afford either information and instruction or pleasure in the form of literary enjoyment..." . Returning back to the statutory definition it is apparent that literary work is a work which is written or spoken". Some observations must be made. First of all, we do not know what we mean by work. Secondly, we are only concerned with original literary work.18 . Thirdly can we compare the word literature in its narrow sense to include under the definition a lecture, novel ... etc and exclude other categories? From the above- mentioned discussion it is apparent that the task of defining strictly what is a literary work is not merely insuperably difficult but logically impossible

14 See E.P Skone James, J Mummery, J James. K Garnett, Copinger and Skonejames on copyright, (volume 1), Sweet and Maxwell. 1999 15 S 3(1) CDPA 1988 16 [1916] 12 ch 601 17 In Exxon Corporation v Exxon Insurance [1982) RPC 69 18 Section M(a)-CDPA 1988

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2.Dramatic Work

Dramatic work is also defined in the Act as a work which ‘includes a work of dance or mime’. 20 The word includes that the work can be other than a work of dance or mime. It may include radio plays and film scripts can be regarded as dramatic work. 21

In Wiseman v. Georgev Wiedenfeld and Nicholson22. Whiteford J said, "Dramatic work involves of course, not only dialogue but a series of incidents - dramatic situations - which in a particular order of occurrence can form the backbone of the piece". The author enjoys the protection of copyright when he reproduces the work in the form of acting or dancing, but still the work must be recorded or written.23. Dramatic work can also be now in computer-generated work24.

3.Musical Work

Musical work means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music25. It is not clear from the Act what constitutes exactly musical work. The Concise Oxford Dictionary might help us in determining that "music is the art of combining sound with a view to beauty of form and expression of emotion sound " It should be noted that in determining whether the work is musical or not it is important to see the written notes but regard must be taken to the ear judgement in the first place 26. " Also the Act does not demand that the music must be written down in any form or recorded in any way by whomsoever27.

4.Artistic Work

Artistic work is is also defined in the 1988 Act28 as (a) graphic work, photograph, sculpture or collage, (b) a work of architecture and (c) a work of artistic craftsmanship. The first category of artistic work does not have to be distinctive by its quality 29 while the other two categories of the Act is silence, therefore it is assumed that artistic quality must be present in each one of them. Also the work must be original in all three categories30.

20 S 3(1)(C) - CDPA 1988 21 Michael F Flint, A User's Guide to Copyright, (Fourth edition). Butterworlh. 1997 22 [ 1985] FSR 525 23 S 3(2) CDPA 1988 24 S 9 (3) CDPA 1988 25 S 3 (1) C CDPA 1988 26 Laddie, Prescott and Vitoria. The Modern Law of Copyright and Designs, (second edition, Butterworths, 1995 27 E P Skone James, J Mummery. J James. K GameU, Copinger and Skone James on Copyright thirteenth edition, Sweet and Maxwell (1991) 28 S 4(1)a, b, c- See also Sec 4(2) for further meaning CDPA 1988 29 S 4 ( 1) a. CDPA 1988 30 S 1 (1) a CDPA 1988

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5. Research and Private Study

Fair dealing does not constitute infringement in relation to the work mentioned above if it is done for the purposes of research and private study, but what do we mean by that?. Is it only available to students? Can any kind of research qualify the test? Why should it be private?. Obviously there is no definition in the Act, neither of research nor private study. The Oxford Dictionary defines research "as a careful investigation to discover new information and private study is to engage in the activity of learning alone.". The Act stresses the need that studying must be done alone since multiple copying cannot be private although it may be under educational copying.31

Although the aim of this provision is to give students greater access to copyright works provided that the use is fair, they are not the only beneficiary of the fair dealing defence and a student can mean anyone taking training or education of any kind and the word research can be construed broadly and it will include commercial and industrial research.32

6. Typographical arrangements of published editions

Typographical arrangements of published editions33is a narrow copyright which protects the image on the page in literary, dramatic or musical work. Typographical arrangement is not defined but "probably meant graphical images pertaining or relating to printing by which literary, or musical works may be conveyed to the reader34, "published editions" means a published edition of the whole or any part of one or more literary, dramatic or musical work may be conveyed to the work35.

In my opinion, it is submitted that Section (29) mentioned twice typographical arrangement, I do not see the real difference between the two since the idea is the same. Fair Dealing for the purpose of research and private study in this kind of work does not infringe copyright.

7. Copying by a person other than the researcher or student himself

The next question to ask is what is the rule of law in the case of a person (other than a student or researcher) who was either a librarian or a person acting on his behalf making multiple copying? Would that constitute fair dealing for the purpose of research and private study? If so, when will that be, and what do we mean by substantiality?

31 Graham P. Cornish, copyright- Interpreting the Law for Libraries archives and information services, Library Association Publishing, London. See also M Sinclair. Fair is not always fair [1997] 4 EIPR 32 Laddie, Prescott and Vitoria, The Modern Law of Copyright and Design, Butterworths, Vol 1 (1995) 33 S 1 (1) C CDPA 1988 34 Laddie, Prescott and Vitoria, The Modern Law of Copyright and Design, Butterworths, Vol 1 (1995) 35 S 8 ( 1) CDPA 1988

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Fair dealing for the purpose of research or private study either copying by librarians’ articles in periodicals or parts of published edition will be permissible if special conditions are present 36. The intention of the person doing the copying is relevant in determining whether the copying is fair or not. If that person knows that substantial copying will result, he cannot plead the defence of fair dealing since bad faith is present on his part art, but what do we mean by substantially?. The act is silence. An example might be helpful- a person copying 15-20 pages of a chapter for himself and the other part of the same chapter for his friend to be revised on Monday of the same week in the same seminar would constitute at substantially the same time and for the same purpose.37

. Fair dealing with computer programmes38

Fair dealing does not apply to conversion in relation to computer programms expressed in a low level language into a version expressed in a higher-level language39. Also the incidental copying of a computer program in the course of so converting a program40.

Also it must he noted that this provision is influenced by the Copyright Computer Programms Regulation of 1992.

9. Databases

Influenced by the database directive, the Copyright and Rights in Databases Regulation. The Act now provides that doing of anything in relation to a database for the purpose of research or private study for a commercial purpose is not fair dealing with the database41.

S. 30) Criticism. Review and News reporting

What is criticism, Review and news reporting?

Fair dealing with a work42 for the purpose of criticism or review 43 of that or another work or a performance of a work does not infringe any copyright in the work, provided it is accompanied by sufficient acknowledgement, but what do we mean by

36 S 38(2), 39(2) CDPA 1988 37 A. Graham P. Cornish, Library Association Publishing, London, 1997 B- please note that always-substantial part must be taken in order to say there is infringement, then we consider the proposition that the use is fair. 38 Michael F Flint. A Users Guide to Copyright. 4th edition Buterworths, 1997. 39 Section 29, 4 (a) CDPA 1988 40 Section 29 4 (b) CDPA 1988 41 E P Skone James. J Mummery, J James, K Garnett, Copiner and Skone James on Copyright, volume I, Sweet and Maxwell. 1999 42 Section 1(2) ‘ this part copyright work means a work of any of those descriptions in which copyright subsists’, see also 1(1) CDPA 1988 43 Section 30 (1) CDPA 1988

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criticism?. In DeGaris v Neville Jeffries Pidler Pry Ltd 44the Federal Court of Australia defines it to include: (1) The act or art of anal y sing and judging the quality of a literary or artistic work, (2) The act of passing judgement as to the merit of something and (3) a critical comment, article or essay. From the Act it is noted that criticism can subsist in all forms of work and the defence is also available in case the copyright work is a photo45, and if the work 15 is merely reproduced without adding things or omitting there can be no fair dealing for the purpose of criticism. Criticism can be to the wording of the article or essay or to the idea of the author46. Review, on the other hand, according to the Federal Court of Australia decision includes a critical article or report as in periodical on some literary work commonly some work of recent appearance or a critique.

The Collins English Dictionary defines review as "to examine again or to review the situation in order to correct or to write a critical assessment." To determine whether the work has been used for the purpose of criticism or review a consideration must be given to the critic or reviewer's state of mind at the time of the alleged infringement 47. If fair dealing is established and it was for the purpose of criticism or review, it does not infringe copyright provided that it is accompanied by sufficient acknowledgement48 or the author is being identified. In Pro Sieban v. Carlton UK, 49'gFarquah arson L J considered the meaning of that. The learned Jude said "Any wording or other indication which would convey to a reasonably alert member of the relevant audience that the identified person is the author is sufficient’.

Finally, reporting current events is also defined in DeGaris. The Federal Court said "reporting of news includes a report of any recent event or situation, the report of events published in a newspaper, journal, radio, television or any other medium, information, events etc. considered as suitable for reporting and information not previously known."

The exception applies to all forms of programmes whether news programmes or the reporting of sports events in a news sports bulletin50. Reporting current events must be construed generally, since it is within the public interest that people be informed of what is happening around them.51 The kind of work that is in this category is every kind of work (except a photograph). This

44 (1991) 18 I.P.R 292 45 Banier v. Newsgroup Newspaper Ltd [1997] FSR 812 46 Associated Newspapers v Newsgroup (19861. RPC 515 at p 519. See also Clockwork Orange. Time Warner Entertainment Company LP v Channel 4 Television Lexis Transcript - where it was held that criticism can be directed at thought and philosophy. See also the Supreme Court of Israel. Decision in David Geva v The Walt Disney [1995] 2 EIPR D-39 where it was held that criticism could be both positive and negative. 47 Pro Sieban Media v Carlton UK [1991] 1 WLR 605 48 Section 30 (1), See also section (178) for further reading. 49 Pro Sieban Media v Carlton UK [1991] 1 WLR 605 50 British Satellite Broadcasting [1992] ch 141 51 Laddie. Prescott and Vitoria, The Modern Law of Copyright and Designs, Butterworths. Vol 1 (1995),

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exclusion ensures that the most valuable source of revenue for certain types of photography is not lost and means that one newspaper will not be able to rely on this section in making use of another photograph52 . Sufficient acknowledgement is not required in relation to sound recording, film, broadcast or cable programme53

52 K Garnett, J James, Gillian Davies, Copinger and Skone James on Copyright (fourteen Edition) vol 1, Sweet and Maxwell. 1999 53 See section 30( 2), (3) CDPA 1988, Appendix (1)

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CASES

Clockwork Orange54

FACTS

The appellant (Channel 4), a television corporation appealed against the decision of the Judge of the first instance ( Harman J) who delivered an order restraining the defendant from broadcasting a programme entitled "Without Walls" extracted from a film called "A Clockwork Orange". The film was in the market for a considerable amount of time. After approximately 61 weeks, the film was withdrawn from the UK by the respondents who thought that the film might have a severe impact upon the viewers since it contained violent scenes.

The appellant relied on the defence of fair dealing for the purpose of criticism or review55The respondents, on the other hand, repudiated this assumption. They relied on four arguments all illustrating that the acts of the appellant do not constitute Fair dealing and they are regarded as an infringement of the plaintiffs copyright. The Court considered the merits of these arguments individually. They are as follows:

1. The way of obtaining the programme The respondents contended that the appellant did not obtain the film by proper means he relied on Beloffv. Press Dram Ltd 56which illustrated that the method by which the material was obtained will be relevant in deciding whether the use is fair or not. Neil L J refused this argument with the two other judges (Henry L J and Farquarson) The learned judged said’. It is our present view that criticism and review of a work already in the public domain which would otherwise constitute fair dealing for the purposes of Section 30(1) would seldom, if every been rendered unfair because of the method by which the copyright material had been obtained57, although the judge said "I do not intend to throw any doubt on the decision in the Beloff case itself’. It should be noted that this guideline is no longer applicable to the defence of fair dealing and might not be followed by later decisions following Clockwork orange.

2. The Quality (Misrepresentation) The next argument delivered by the respondents is that the extract was selected from the film improperly, the effect of which to create an unfavourable impression among viewers, as noted earlier, this was the reason which led the respondents to withdraw the film from the public domain. This argument raised the question whether the reviewer or critic is free to choose any part of the work for the purpose of review or criticism or is he restricted to certain parts rather than others? . In answering this question, NeilLJ said, ‘I am satisfied that the court should be very slow before it

54 Time Worner Enierlainment Company LP v. Channel 4 Television Corporation plc and another –Lexus transcript. 55 Section 30 (1) CDPA 1988 56 [1997] 1 All ER 241 57 Lexus Transcript – p (12)

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rejects the defence of fair dealing on the grounds that the criticism covers only one aspect of a film or book, or as the case may be.

One can envisage many cases where it would be legitimate to select or criticise, for example, a single scene of violence even though the rest of the work was free of objectionable material.58.The judge at the end refused this argument. Hi a decision on this matter illustrates that criticism can be directed to the work itself, its thought and philosophy. The decision is also inline with other earlier authorities like Hubbard v. Vosper59.

3.The Quantity The respondents argued that the clips formed a substantial part of the programme and amounted to rather more than 8% of the film60. If the judge considered the clips to be forming a substantial part of the film it would not be fair dealing and there will be infringement of the copyright work. The argument also failed. The judge said"... I have come to the firm conclusion that this programme does not go beyond the bounds of fair dealing by reason of the length of the excerpts from the film61.

4.The Purpose of the programme. The final argument delivered by the respondents is that the purpose of the programme was not to criticise or review "Clockwork Orange" in any way but to bring pressure upon the respondents to have the film seen again in the UK. The argument also failed in front of Neil L J who gave his reasoning for such a refusal. He said "In these circumstances it seems to me that the fair dealing defence may apply equally where the criticism is of the decision to withdraw from circulation a film in the public domain and just of the film itself in present context the two are in my view inseparable"

5. The End Result The appeal allowed the defence of fair dealing was present for the appellant and the public can see the film at last.

Banier v News 62

The defendant published a photograph after failing to obtain a licence from the creator and author of the copyrighted work. The plaintiff sued the defendant for infringement of his copyright. The defendant repudiated this pleading and contended that the use is fair dealing under Section 30(1) of the 1988 Act for the purpose of criticism or review. Lightman J, before delivering his decision considered the real objective of the party using the copyright and whether the critic or reviewer's intention was directed to review the work or not.

58 Lexus transcript – p (14) 59 [1972], All ER 1023 60 The view of the Society of Authors and Publisher Association that a copy of a single copyright work not exceeding 4000 words or a series of extracts (of which not exceeds 3,000) to total of 8,000 is regarded as fair dealing provided it does not exceeds 10% as a whole. 61 Per Lord Neil L J at p. 16. See also Henry LJ Judgment p.20 - Lexus transcript 62 [ 1997] FSR 812

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After examining the article as a whole, Lightman J did not notice any form of criticism, the defendant was merely reproducing the plaintiff's photo without adding or criticising. Therefore, the defendant was infringing the copyright work of the plaintiff and there was no fair dealing defence which could be pleaded. This case illustrates that one of the guidelines that can be followed in determining whether the use is fair or not is the purpose of the critic or reviewer and whether his intention is directed toward criticising or reviewing or not.

BBC v British Satellite63

The defendant owned the exclusive right to transmit through satellite to the United Kingdom matches of the football in 1990. During the transmission, the plaintiff- another broadcasting corporation - noticed that the defendant had used excerpts which the 'plaintiff had shown in his own previous broadcasting when he had the copyright. The plaintiff sued for infringement of copy right. The defendant accepted that the use made of the extract was prima facie infringement of the copyright of the owner , but relied on the defence of Fair dealing relating to reporting current events (Section 30(2)). The plaintiff contended that the use of the defendant was not solely for the purpose of reporting current events but was for various other purposes (competing with the plaintiff).

In determining whether the purpose of the defendant was to report current events or not, Scott J considered the quality and quantity of the material taken. The Judge, Scott J held that the quality and quantity of the material did not suffice, the excerpts were short and the use was for the purpose of reporting current events. The importance of this case lies in the fact that the defence of fair Dealing was not available to broadcast copyright owners. This was the first case which illustrated the scope of section 30(2) and the substantiality of the material taken can be used as a guide line in determining whether the use is fair or not.

Express Newspapers Plc v News (UK) Plc64

The plaintiff published an interview with a lady associated with a public figure. The defendant also published an article and in it they reproduced the same remarks which the plaintiff published without acknowledgement of the source. The plaintiff sued for copyright infringement, the defendant relied on the defence of fair dealing in section 30(2) of the 1988 Act. The Judge, when satisfied that there was acknowledgement of the fact that the story originated from the plaintiff newspaper, did not regard that it was enough in determining whether a fair dealing defence is present, the statute requires an acknowledgement of the author, not right of the copyright holder. Therefore the argument of the defendant failed and there was no defence of fair dealing. .

63 [1991] 3 WLR 174 64 [ 1991] 1 FSR 34

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Pro Sieben Media v Carlton UK Television Ltd65

The plaintiff is a producer of television programmes for viewing in Germany. He had the exclusive right to broadcast an interview with a mother expecting the delivery of 8 live embryos. The first defendant was also a producer of television programmes to the viewing public in England; the second defendant was an independent production company. Without the consent of the plaintiff, the second defendant copied a clip of the programme, which viewed the story of the mother, which the plaintiff owned. The plaintiff alleged that the clip used by the defendant in his programme formed a substantial part of his programme and that this amounted to infringement of copyright. The defendants relied on section 30(1) and section 30(2) of the fair dealing defence relating to criticism or review and reporting current events. The plaintiff repudiated this assumption on the basis of three reasons (1) There was not sufficient acknowledgement (no identification of the author): (2) The purpose was not for criticism or review, and (3) The use of the plaintiffs work was not fairly for any such purpose. The judge held that the defendant failed to demonstrate the presence of sufficient acknowledgement since the mere reproducing of the plaintiff logo is meaningless, and it would not be understood by reasonably alert members of the relevant authors, the judge on the second reason was not convinced that the criticism or review is the purpose which led the defendants to include a clip of the plaintiffs work in their programme. The judge, at the end, gave his decision "I have no doubt that the use made of the 30-second extract was not fair in all the circumstances."

Per Limited v Dow Jones Telerant Limited66

An Action was brought by the plaintiff who disputed a report to his subscribers based on a data about the current statute of the Coca Crops, which he collected and was written by his employer. The defendants, journalists, wrote articles about the report which the plaintiff pleaded that they had infringed his copyright. The defendant relied upon the fair dealing defence in relation to reporting current events.

Lloyd J considered the guidelines which can help in determining whether work is fair or not, the learned judge said, "As to whether a copying amounts to a fair dealing.... clearly much depends on how much material is taken and the significance of that material. The purpose of the copying is also relevant...”

The judge had to decide whether a substantial part had been taken from the plaintiffs work or not. After looking at every article individually and the quantity, of what had been taken, the judge came to a clear conclusion that the defendant had infringed the plaintiff’s copyright.

65 [ 1997] 1 FSR 34 66 [ 1998] FSR 170

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Fair use in the United States.

A) United States Code

The defence of fair use of a copyright work (by reproduction in copies of phono records or by any other means) is available in the United States Code67, which identifies six purposes that will be regarded as fair use, and they are as follows:

Criticism, comment; news reporting; teaching (including multiple copies for classroom use); Scholarship; research.

The copyright status lists four factors that the court must weigh and take into consideration to determine whether the use of copyright constitutes fair use or not:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non- profit educational purposes. The author, Lee Wilson argues that such uses as for educational research, criticism and news reporting are almost always fair whilst on the other hand, the uses for other purposes, such as advertising and commercial uses are seldom or never considered as fair use68.

2. The nature of the copyrighted work is also important in determining whether the use is fair or not. The Court, in this situation, may regard the use of the informational work permissible, while the use of the creative work which needs more effort and judgement to produce, will constitute infringement and cannot be described as fair. Also, whether the work is published or not, may influence the Court in its Finding.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. This is called the substantial similarity question. The Court, in this situation, takes into consideration the quantity and quality of the work taken and the effect upon the copyrighted work which is alleged to be infringed.

The final and most important factor in determining whether the use is Fair or not the effect of the use upon the potential market value of the copyrighted work (e.g such use will reduce the number of potential buyers or will have a severe effect upon the reputation of the work alleged to have been infringed), if the market of the copyrighted work is diminished or the prospective buyers are no longer interested in a work of a famous author, the use will not be fair,

67 Title 17 - Copyright - chapter - subject mailer and scope of copyright - Section 107 - Limitation on exclusive right: fair use - (Appendix 2) 68 Be Lee Wllson. The Copyright Guide, Allworth Press. New York, 1996

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B.Fair Use through the Cases

In determining whether the use is fair or not the court will consider the four point test mentioned above, but the crucial question to be asked in this situation is whether the court considers all the factors together, or whether it is enough, in particular instances, to consider every factor individually. For example, if the use is for commercial purposes can the judges say directly that the use is not fair regardless of other factors? The answer to this question is illustrated by an important case, Campbell v A Cuff Rose repudiated the presumption that every commercial use of copyrighted material is presumptively……unfair69.

In this case70, the plaintiff wrote a song called "Oh. Pretty Woman". The defendant, without obtaining permission, used the words of the song and released it under the same title. The issue which the court had to consider was whether the defendant, by such conduct, infringed the plaintiffs copyright and whether he could rely on the fair Use defence. The Supreme Court of the USA considered the material which had been taken, the purpose and commercial nature of the work. The Court, after balancing the four factors, came to the conclusion that the commercial nature of the work was not the only determinative factor in determining whether the use was fair or not. All factors must be considered even if the purpose of the use is commercial. Therefore, there was no infringement and the use is fair.

In Heberman v Hustler Inc 71 the plaintiff sued for copyright infringement when the defendant published a magazine and in it, he reproduced one of the postcards that the plaintiff owned without attributing such work to him. The defendant relied on the fair Use (Comment and Criticism), the Court considered the four point test individually and came to the conclusion that there was no copyright infringement. The case illustrates that the copyright owner cannot prevent the press from making legitimate use.

In American Geophysical v Texaco Inc the defendant who was a researcher photocopied articles from the plaintiff’s journal, the court considered whether there was an infringement of copyright and if the use was fair or not. The court of appeal held that the use would still be considered fair even if the copyright were for commercial purposes72.

69 This presumption is established by the Supreme Court of die USA in Sony Corporation of America v University City Studios, Inc 70 Compell v A Cuff 127 LED 2d 500,29USPQ 2d 1961 (1994) - cited in EIPR [1994] 5-D-123 71 229 USPQ 15 [1988] 7 EIPR- D 159-160 72 Quoted in Michael Sinclair, Fair is Not Always Fair, Media Monitors and Copyright [1997] 4 EIPR

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Comparison between the UK and the USA

Authors suggest that a comparison between fair Use in the USA and fair dealing in the UK is not allowed since fair use is a narrower term than fair dealing and the two should not be used as equivalents73 and "they are conceptually distinct since they presuppose that a substantial part has been taken "74. lf we say that this is true, it is submitted that we can still make this comparison, keeping in mind that the Copyright Act of the United States (1988) codifies the Common Law doctrine of fair use which was based on early English case law75.

Both Acts - the Copyright, Design and Patent Act in the UK and the Copyright Act in the USA became legislation at the same time (1988). The USA Copyright Act applies the doctrine of fair use in relation to all types of work while the UK provision applies to literary, dramatic, musical and artistic work76.

The purposes which determines that the use is fair laid down by the Copyright Act in the USA (criticism, comment, news-reporting, teaching, scholarship or research) are much the same purposes as the United Kingdom provision relating to fair dealing (research and private study, criticism, review, news reporting). The United States code laid down a four point test77 which will help judges in determining whether the use is for the purposes mentioned previously and is fair or not. The United Kingdom Copyright, Design and Patent Act (1988) do not set out any guideline. The only guidelines offered are not statutory but in case law78. Not setting out any guidelines will give the judges more discretion in determining whether the use is fair dealing or not as said by Ungoed Thomas in the Beloff case ‘ fair dealing is a question of fact and impression’ 79, Unlike in the UK, judjes in the USA have less discretion- they are obliged to follow the four guidelines laid down by the Copyright Act 1988. They have to consider every point individually and then come to a conclusion.

It is submitted that the American approach is easier to follow, clear, precise in terms of justifying judges’ findings.

73 Laddie. Prescott and Vitoria, the Modem Law of Copyright and Designs. Butterworths, Vol 1 (1995) 74 Raymond A Wall, Copyright Made Easier, the Association for information Management, (1993) 75 See Bill v. Whithead (1839) Law C. Brandury and Others v. Holten (1872) LR 8 EX I 76 S 29 CDPA 1988 Appendix 1 77 Section 107, United state code- appendix (2) 78 " Through my study of my study of case law I noticed that the guidelines could be as follows: a) The approved purpose (Beloff v. Pressdram Ltd [1973] AER 241) b) The quality and quantity of the work taken (John Stone v. Bernard Jones Publications Ltd [1973] AER 241 c) The motive (Associated Newspaper Croup plc v. NewsGroup. [1986], RPC 515) d) The method by which the materials were obtained (Beloff v.Pressdram Ltd [1973] AER 241) e) The proportion taking (Walter vSteinkopff [1892] 3ch 4890 1) Tile status of the work. Whether confidential or published (British Oxygen Co Ltd v. Liquid Air Ltd) [1925] 1 Ch 383) g) Commercial v. Non-commercial (Hubbard v. vosper [1972] I All ER 1023) h) Whether a substantial part had been taken or not. Independent Television Publications v Times out [ 1984] FSR 64 (19841FSR64 79 [ 1973] All ER 241

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Commercial research is regarded as fair dealing for the purposes of research and private study in the UK while it may not be regarded as fair use in the USA, since the purpose of the use is a profitable not educational one80

80 K Garnett, J James, Gillian Davies, copiner and Skone James on copyright ( fourteenth edition) vol 1 , sweet and Maxwell, 1999

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CONCLUSION

After reviewing the defence of fair dealing in Copyright, Design and Patent Act 1988 in detail and the most recent cases concerning the defence, we can now return to the Question to answer it. The question asked "Consider the proposition that there is insufficient guidance in the Copyright, Design and Patent Act 19R8 for Courts to make logical, justifiable decisions concerning Fair Dealing with copyright work."

I do not think there is much in the Copyright, Design and Patent Act 1988, which can help us in determining whether the use is fair or not, apart from section (3) in relation to researcher private study. Judges are required to go back to the Case Law to determine whether the use is fair dealing or not. Thorough investigation of the cases concerning fair dealing illustrates that some guidelines are offered, but judges' discretion (n this matter is the most important factor in determining that the use is fair.

I think that adopting the approach taken by the Copyright Act of the United States (1988) might solve this problem. It will have the best benefit of the fair dealing defence which will enable copyright in the first place and will make a balance between the interests of the authors and the interest of the society or individual. In the end it will protect the intellectual thinking of human beings which the law of intellectual Property demands.

.

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Appends 1(Copyright. Design and Patent Act 1988, S29)

Section (29) Research and Private Study

1.Fair dealing -with a literary, dramatic, musical or artistic work, for the purposes of research or private study does not infringe any copyright in the work or in the case of published edition, in the typographical arrangement 2. Fair dealing with the typographical arrangement of a published edition for the purposes mentioned in subsection (1) does not infringe any copyright in the arrangement. 3.Copying by a person other than the researcher or student himself is not fair dealing if:

a) In the case of a librarian, or a person acting on behalf of a librarian, he does anything which regulations under Section 40 would not permit to be done under Section 38 or 39 (articles or parts of published works: restriction on multiples copies of the same material), or

b) In any other case, the person doing the copying knows or has reason lo believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and substantially the same purpose. 4. It is not Fair Dealing a) to convert a computer program expressed in a low level language into a version expressed in a higher level language; or

h) Incidentally in the course of so converting the program, to copy edit it. (These acts being permitted if done in accordance with section 50 B of the Code Compilation) (30) Criticism. Review and News Reporting

1. Fair dealing with a work for the purposes of criticism or review, of that or another work or of a performance of a work does not infringe any copyright in the work, provided that it is accompanied by a sufficient acknowledgement.

.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 (subject to subsection (3)) it is accompanied by a sufficient acknowledgement. 3. No acknowledgement is required in connection with the reporting of current events by means of sound recording, film, broadcast or cable programme.

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Appendix 2 United States code Title 17- Copyrights - chapter - subject matter and scope of copyright - Sec 107 - Limitations on exclusive right - fair use.

Notwithstanding the provision of section 106 and 106 (A) the fair Use of a copyrighted work, including such use by reproduction in copies of phono records or by any other means specified by that section. for purposes such as criticism, comment, news reporting, teaching including multiple copies for classroom use), scholarship or research is not an infringement whether the use of a work in any particular case is a fair use, the factors to be considered shall include:

1. The purpose and the character of the use including whether such use is of a commercial nature or is for non-profit educational purposes 2. The nature of the copyrighted work. 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: and 4.the effect of the use upon the potential market or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the above factors.