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LAW1133 Intellectual Property Law For International Treaties And EU Law

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  • Course Code: FINA2204
  • University: University Of Greenwich
  • Country: United Kingdom

Questions:

Part A

Explain what is meant by fair dealing and the manner in which this requirement has been interpreted and applied in the leading case law. Where necessary and relevant, your discussion should include reference to relevant international treaties and EU Law.

Part B
 
Explain, with reference to the relevant authorities, why moral rights are deserving of protection.

 

Answer:

A significant philosophical issue that is at the heart of intellectual property rights is raised by fair dealing defenses that are used. In cases involving copyright infringement. It is well recognized that society needs to share and rely on existing knowledge for its development. Therefore it can be argued, for example that the freedom of expression should be allowed that is necessary for incentivizing creative expression. The defense of fair dealing tries to mediate between the commercial property rights that are granted by copyright and the legitimate use of such material by the public in good faith, for example, for educating, teaching or for sharing cultural words (Cornish, 1999). In the essay, a basic dichotomy is present between the need for freely expressing the ideas falling in the public domain and the right to protection of creative works in which such information and knowledge has been used. This has been called as the idea expression divide. It is also be argued by some experts against the concept of copyright as a result of its likelihood of acting as an artificial barrier which can indeed the exchange of ideas in the society. Similarly, another expression that can be given behind such division is the suggestion to lie in historical Lockean concept of property. This has been defined negatively, resulting in the creation of the rights to exclude access. 

 

The idea of fair dealing has been introduced by the Copyright Act of 1911. There are three areas of permitted acts that are mainly covered by this legislation. These are private study and research; news reporting and criticism and review. Now these defenses also mentioned in section 29 and 30 of this legislation. At the same time, there is also the exception for education that has been mentioned in section 32. Although the requirement related with each individual i have been mentioned in the Act but it needs to be noted that the definition of fairness itself is not present in the therefore this definition has been developed by the courts. 

As mentioned above, fair dealing, in case of research and private study has been mentioned in section 29 of this legislation. Therefore, it allows any acts that may otherwise result in the infringement of copyright, provided the necessary conditions are met with. In case of research, any fair dealing with typographical arrangement is allowed by the law. In the same way, fair dealing related with traumatic, literary, artistic or musical work for the purpose of research is also allowed, although it is required that it should be for a noncommercial purpose, and at the same time suitable acknowledgment should also be given (Christie and Gare, 2001). For example, in Green Amps [2007], it was stated by the High Court that data resulted in the breach of non-commercial restriction when copying took place on account of noncommercial research but where a commercial product was the end result.

As is the case with research, the fair dealing related with private study also does not result in the infringement of copyright in case of literary, musical, dramatic or artistic works or regarding the typographical arrangement of the published works. As against the research exceptions, in this case there is no need, mentioned in the statute regarding acknowledgment or exclusively non-commercial dealings. Although the English case law on this subject is limited, but in Australia the courts have held that the term “study” is to have its ordinary dictionary meaning (Davis, 2001). 

It also needs to be noted that the exceptions of fair dealing. Related research and private study does not include sound recordings, broadcasts or films. It has been mentioned in section 29 that there are certain acts in which computer programs are involved that are also excluded from the coverage of these exceptions because they are provided with particular defenses in other parts of the legislation (s29(4), inserted by The Copyright (Computer Programs) Regulations). Regarding the research and private study, the copyright would have been enjoyed by a party except the researcher on the student, provided that a search copyright has been done by a librarian, the relevant conditions related with libraries have not been violated order by others, the copies have been produced only for a single individual (Laddie, Prescott and Vitoria, 2000).  

 


As mentioned above, fair dealing related with the purposes of criticism and review has been mentioned in section 30 of this legislation. Therefore this section allows fair dealing with any work in order to criticize or review that work or some other work or the performance of such work, if there is sufficient acknowledgment given to it (Burrell, 2001). In order to apply this defense, it is required that the world should have been made available to the public by an authorized act and there should be a a (non-exclusive) rest of example acts. It was stated by the court of appeal in Pro Sieben (2001) that the terms criticism and reviews need to be liberally interpreted. Therefore, they should not be restricted to criticizing all are reviewing the style or the content of the work. They can include the criticism of the idea that is present behind the work and also the moral and social implications of the work. But in Ashdown, the Court has stated that criticism cannot be used for the purpose of justifying copying the minutes of a meeting when the actions of the persons present in the meeting were being criticized.

An exception is also provided by the section regarding the copyright for purpose of reporting current events that are applicable to all works, other than photographs, provided the rightful acknowledgment has been given. As is the case with review and criticism, it has been stated by the Court of Appeal that the term current events also needs to be interpreted liberally. An event is not only current due to its being reset in time, but it can be on account of current interest of the public.

Although the main purpose behind the defense of creating is to cover research and private study, recording of current events and criticism and review but this defense is also applicable in case of the copying of literary, musical, dramatic and artistic work for the purpose of instruction (s32(2A)). As is the case with other types of fair dealing, it is required that the work should have been published and the copy needs to be accompanied by required acknowledgment. Apart from it, the copying should be done by the person who is giving or receiving instruction and not by reprographic process.

As mentioned above, a statutory definition is not present regarding what dealing can be considered as fair. Hence there are ways categories of fair dealing, but the same criteria is used on deciding fairness. This test is objective in nature, and it involves asking the question if any fair-minded and honest person would also have dealt with the copyrighted work in the same way that the defendant had done, for the purpose. In this regard, there are no set factors related with this test, however, three significant factors have been established. 

 


The first main factor is to see if the alleged fair dealing is commercially competing with the exploitation of copyright work by its proprietor. It is not enough to show that the dealing is commercial in order to be fair but there are certain fair dealings that are restricted to noncommercial use. The second factor in this regard is to see if the work has already been made available to the general public (British Broadcasting Corporation v British Sky Broadcasting, 1992). Again, it is not result in making fair dealing regarding unpublished works and possible but it is a highly significant factor. In the same way, it can be sufficient that the work had been circulated to white enough to of people instead of requiring to be published to the whole world. The third factor in this regard is the amount and the significance of the work. Therefore it is important that only the amount of work that is reasonable or appropriate under the circumstances, should be taken although there are certain circumstances when it may mean that the whole work may have to be taken, particularly if it is a small work (Fressoz & Roire v France, 2001). In the same way, it may be acceptable in the circumstances to copy the whole work for the purpose of selecting reasonable amounts for an inappropriate and purpose. In this regard, certain guidelines have been laid by the court in Fraser-Woodward Ltd v BBC [2005] EWHC 472. In this case the list of the above factors was mentioned and at the same time the motives of the user, the true purpose of the work and the issue is the use has resulted in unreasonable prejudice for the legitimate interests of the owner of copyright or were in conflict with the normal exploitation of the world by the author, were also considered (Griffiths, 2002).

In Hubbard V Vosper (1972), Lord Denning had discuss the scope of the exception of fair dealing. In this case, certain criteria has been suggested that should be considered by the judge for the purpose of deciding if fair use can be allowed in various circumstances where the use of copyrighted material is involved. In this regard, considerations like the extent and frequency of quotations were outlined, along with the nature of quotations. It was stated in this regard that if the material is used for providing basis to a comment, review or criticism, it can be fair dealing. On the other hand, if the material has been used for conveying some information for either purpose, it can be considered as unfair. Under the general rule in this regard is the extent of quotations without copyright protected work. In this case, the real size of the quote is considered and also it's justified proportions. For example, it has been suggested that taking long extracts from the copyright protected work and adding short commentary can be treated as unfair (Ashdown v Telegraph Group Ltd., 2001).

 


A perusal of the existing case law related with the defense of fair dealing only reveals the ambiguity present in case of defense under English law. It is not very easy to maintain a balance that can protect the exclusive rights of the owner of copyright, and at the same time maintain constant approach that can provide certainty regarding the use of material that is allowed by the law. 

 

Reference

Burrell R, 2001, Reining in Copyright: Is Fair Use the Answer?, 4 Intellectual Property Quarterly 361.

Christie A and Gare S, 2001, Statutes on Intellectual Property Law, 5th edition, Blackstones.

Cornish WR, 1999, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 4th edition, , Sweet & Maxwell

Davis J, 2001, Intellectual Property Law, Butterworths.

Griffiths J, 2002, Copyright Law After Ashdown- Time to Deal Fairly With the Public, 3 Intellectual Property Quarterly 240.

Joseph L, 2002, Human Rights Versus Copyright: The Paddy Ashdown Case, 13(3) Entertainment Law Review 72.

Laddie, Prescott and Vitoria, 2000, The Modern Law of Copyright and Designs, (3rd ed.), Para 20.16,  Butterworths

Case Law

Ashdown v Telegraph Group Ltd [2001] EMLR 44 (High Court)

Ashdown v Telegraph Ltd [2001] 2 All ER 370 (Court of Appeal)

British Broadcasting Corporation v British Sky Broadcasting [1992] Ch. 141

Fressoz & Roire v France (2001) 31 EHRR

Green Amps [2007] EWHC 2755

Hubbard V Vosper (1972) 2 QB 84

Hubbard v Vosper [1972] 2 QB 84

Hyde Park Residence v Yelland [2001] Ch 143

Pro Sieben ([2001] EWCA Civ 1142

Part B

The purpose of intellectual property law is to make sure that the economic interests of artists, authors and other creators are protected in the form of the operation of copyright law. But generally in case of creative persons, there is something more than pecuniary rights that need protection, this is the integrity of the work and also the right that that person should be named as the creator of the work. The best way to moral rights is not to refer to the morality in ordinary sense but to this non-pecuniary, personal involvement of the creator in his work that goes beyond the scope of adventure of commercial interest (Humphries v Thompson, 1905-1910). Since the early 19th century, a number of countries in Europe have recognized these special rights. However, in case of the United Kingdom, there was some delay in accepting moral rights in the domestic laws related with intellectual property. Therefore in the present work, an attempt will be made to examine the scope and significance of moral rights and the path to adopting the moral rights into domestic legislation in the UK and also to consider article 6bis, International Convention for the Protection of Literary and Artistic Works or in other words, the Berne Convention. 

Moral rights are considered as a significant aspect related with the copyright law. The reason is that these rights protect over and above the economic rights. While it is essential to protect economic rights of the creator of a work in the early days of its obligations, the moral rights allow the creator (including his ancestors) that have control over the work in the future (Archbold v Sweet, 1832). Moreover, moral rights are also considered as being intrinsically significant for the creator of work, regardless of the commercial or the financial capability of the work. This argument has been mentioned in a novel form while recognizing the moral rights of an artist. Therefore, it was stated that it is the right of the author to protect, preserve and nurtured his creations through the moral rights. The creator has been provided with the power and mystique of the original genius, resulting in a privileged relationship that exists between the work and its creator.

There were a number of legal systems in Europe that had started to accept the concept of moral rights over a piece of work since as early as 1813. Particularly France is considered as the founding nation when it comes to the moral rights (Frisby v BBC, 1967). However, the concept of moral rights was rejected by English court in the 18th century in Donaldson v Beckett (1774) 2 Brown's Parl Cases 129. It has been suggested that this can be the result of the desire in the UK to avoid adopting foreign concepts and also to avoid adopting foreign legislation, as well as due to the vast differences present in the culture in Europe and the United Kingdom regarding the rights of the authors. Moreover, in view of the difference in legal systems, civilian and common law, also had an impact on the views of the different nations. The result was that the Berne Convention, which is an international agreement that governs copyright, has been revised in 1928 with a view to deal with this difference of protection present throughout Europe. In effect, it was a compromise made between nations like France and Germany where liberal policies were present regarding the protection of moral rights and the countries which did not recognize the protection provided by moral rights at that time. In this way, the minimum standards of protection that needs to be upheld by the member nations are provided by this dimension and it also explicitly mentions two types of moral rights that need to be protected. These are the right to attribution and integrity.

In this regard, it has been mentioned in Article 6 bis that “independent of the economic rights of the author and even after the transfer of these rights, a rights will be available to the author to claim the authorship and also to object to any, modification, distortion or mutilation of the work or any other delegate reaction regarding the work that can be prejudicial for the reputation or the honor of the author”. It appeared that in the beginning the United Kingdom was reluctant in introducing legislation to expressly include the provisions of this Article in its domestic law. Some experts have claimed that the concept of moral rights in the UK was a novel concept (Ginsburg, 1990). However, it was accepted by the Gregory Committee in 1952 that certain aspects of this protection were also available at present in the form of defamation, contract and passing off legislations (Vaver, 1999). However, these were considered to be sufficient and best placed in order to implement the provisions that were mentioned in the Berne Convention. But 25 years later, concern was expressed by the Whitford Committee that the obligations of UK under the Berne Convention were not fully implemented. As a result, this committee was in support of introducing particular moral rights legislation.

Consequently, the moral rights were explicitly included in chapter IV, Copyright, Design and Patents Act, 1988 (CDPA). The result was that the two moral rights that have been mentioned in article 6bis were mentioned in section 77 and 80 of this legislation. In the same way, the right of education that was mentioned in section 77 uses the same words that who used in Article 6bis. Therefore, they provided that the author needs to have the right to claim authorship of the work (Lea, 1994). It is a prima facie it suggests that there is sufficient level of protection, directly in June with the provisions of article 6bis. But it needs to be noted that a qualification has been added. As a result an author in UK can use the right of attribution provided by the CDPA. Only if the writer has asserted that right, and even in such a case the right is binding only in case of the persons who have received actual or constructive notice regarding such assertion of a right. The Berne Convention does not specify at any place the requirement related with such course of action. On the other hand, the Convention provides that the enjoyment and the use of such moral rights of the creators of work “shall not depend on any formality”. Therefore such a situation suggests that the United Kingdom is not complying with the minimum level of protection as provided by Article 6bis because it is much more difficult for the creators of work to receive such protection.  

Therefoe, in the end it can be stated that even if the moral rights are an unusual form of intellectual property rights, it is also clear that the moral rights are very important when it comes to creative industry and therefore it needs to be protected. It was also a significant step when the moral rights were expressly included in the CDPA, 1988 as a part of the domestic legislation of UK however it is also clear that the remnants of earlier attitude, according to which the economic write some more valuable and need greater protection, is still prevalent. The result of such attitude is that the introduction of moral rights in the United Kingdom is still inadequate in many ways, particularly when considered in terms of the Berne Convention. The reforms that are necessary, particularly the need for asserting the right of attribution and several exceptions that are present in the CDPA would be a welcome development in the field of moral rights.

References

D Vaver, 1999 Moral rights yesterday, today and tomorrow, International Journal of law and Information Technology, 7(3), 270-278

G Lea, 1994 Program copyright and moral rights: a culture clash? Computer law and security report, 304-306  

J Ginsburg, 1990 Moral rights in a common law system, ELR, 1(4), 121-130.

R Durie, 1991, Moral rights and the English business community, Entertainment law review

Case Law

Archbold v Sweet [1832] 172 ER 947

Donaldson v Beckett (1774) 2 Brown's Parl Cases 129

Frisby v BBC [1967] WLR 1204

Humphries v Thompson [1905-1910] MCC 148

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