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Should the UK Move to a Fair-Use Copyright Exception?

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Abstract

In the wake of two major government reviews in the United Kingdom, this paper considers whether there might be advantages, particularly in terms of encouraging innovative creative work, in moving the UK much closer to a position allowing courts to accept a claim of fair use as a general defence to a claim of copyright infringement. Since an EU directive holds UK and European jurisprudence to a specific defence based on enumerated purposes, the arguments in the paper are potentially of more general application beyond UK shores. A comparison is made between the operation of enumerated purposes for fair dealing in the UK and the US approach to copyright exceptions based on fair use, which is spreading internationally. A case is made on the basis of the nature of transformative use of existing expressive work, and noting that encouraging innovative work is part of the EU jurisprudence that has increasing impacted UK courts in recent years, making it by no means impossible to argue for fair use in a UK context, or, indeed, in a wider context.

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Notes

  1. Hargreaves (2011); see also The Government’s response to the Hargreaves review of intellectual property and growth (Intellectual Property Office, London 2011). The UK is a uniform jurisdiction for copyright purposes.

  2. This article develops the discussion in the author’s contribution to Hargreaves, which examined the incentive issues concerning fair dealing and fair use, but did not come to a conclusion over adoption. This article is more conclusive and has benefitted from noting the post-publication responses to the review.

  3. Gowers (2006).

  4. See: Cotter (2008), Miceli and Adelstein (2006), Landes and Posner (1989), Landes and Posner (2003), Gordon (1982), and McDonagh (2012).

  5. One exhibiting mutual inclusion: once provided, it is there for any individual at no additional cost.

  6. Rogers et al. (2009) at 18; CIPIL (2006) at 26.

  7. Boyle (2008).

  8. Breyer (1970) at 304.

  9. Heald (2008).

  10. Ku et al. (2009) at 1708.

  11. Luther R. Campbell aka Luke Skywalker, et al. v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); 114 S.Ct. 1164; 127 L.Ed. 2d 500; discussed in Ku et al. (2009).

  12. Supra note 4.

  13. Gibson (2007).

  14. Coase (1960).

  15. See Landes and Posner (1989), at 357.

  16. Depoorter and Parisi (2005).

  17. 7 USC Sec. 107 (2000 & Supp. IV. 2004). See Barczewski (2011).

  18. Beebe (2008) at 585.

  19. Gowers (2006), at 62; Brenncke (2005); Attorney-General of Australia (2005).

  20. [1972] 2 QB 84.

  21. Griffiths (2010).

  22. Dworkin and Taylor (2002) at 70.

  23. Proudman J in Newspaper Licensing Agency & Ors v. Meltwater BV & Ors (2010) EWHC 3099 (Ch), paragraph 115; see also Walker LJ, Pro Sieben Media AG v. Carlton UK Television Ltd (1999) 1 WLR 605 at 614, (1999) FSR 610 and Gowers (2006) at 12.

  24. Hubbard v. Vospar, supra note 20; see also Newspaper Licensing Agency Ltd. v. Marks & Spencer Plc. (1999) EWHC Patents 266 (19th January 1999); British Broadcasting Corporation v British Satellite Broadcasting Ltd. (1991) 3 All ER 833; Beloff v. Pressdram and another (1973) 1 All ER 241, FSR 33.

  25. Hubbard v. Vospar, supra note 20, at 94.

  26. Defined in Sec. 178 CDPA.

  27. Time Warner Entertainment Co. Ltd. v. Channel 4 Television (1993) 28 IPR 459 (1994) EMLR 1 (test is not severe: accepting 12-min film extracts in a 30-min show, and holding there is no required form for a review, which can consider ideas cited in the work as well as expressive forms).

  28. But note Meltwater, supra note 23, where a commercial media monitoring and forwarding service, used by commercial firms, was infringing in all the circumstances.

  29. Newspaper Licensing Agency v. Marks & Spencer, supra note 24 (reporting of current events is a very wide exception, although in the instant case the redistribution of photocopied newspaper clippings went beyond acceptable practice).

  30. Supra note 23.

  31. Proudfoot J, in: Meltwater, supra note 23, cited the strict interpretation of significant copying required following Case C-5/08 Infopaq International A/S v. Danske Dagblades Forenung, Opinion of Advocate General Trstenjak delivered on 12 February 2009, (2010) FSR 495.

  32. There is also other secondary legislation covering copyright exceptions, such as the Copyright (Computer Programs) Regulations 1992 No. 3233.

  33. See Gowers (2006), at 44.

  34. The test in the Berne Convention, Art. 9(2), allows limitations of copyright: (i) in certain special cases; (ii) not conflicting with normal exploitation of the work; and (iii) not unreasonably prejudicing the legitimate interests of the copyright holder. Note that some of (ii) is a subset of (iii). The three-step test also appears in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), Art. 13, the WIPO Copyright Treaty, Art. 10, the WIPO Performances and Phonograms Treaty, Art. 16, and in several EU Directives. In a European context, the test has been regarded as compatible with a wide ranging exception for parody and transformation, as in Germania 3 Gespenster am toten Mann, Federal Constitutional Court 29 June 2000, Zeitschrift für Urheber- und Medienrecht (ZUM) 2000, p. 867; 2001 Gewerblicher Rechtsschutz und Urheberrecht 149 (where the German Federal Constitutional Court held that freedom of expression drove a parodic and transformative use of extracts from plays written by Bertholt Brecht).

  35. See Landes and Posner (1989).

  36. http://www.copyrightcode.eu.

  37. The full code is discussed in Ginsburg (2011).

  38. Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).

  39. See Rogers et al. (2009), at 15.

  40. See Hargreaves (2011), and Gowers (2006).

  41. Recording Industry Association of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072, 51 U.S.P.Q.2d (BNA) 1115 (9th Cir. 1999) (an MP3 device makes permissible portable copies from a user’s hard drive) is usually taken to indicate that if the US Supreme Court did give an opinion it would support format shifting. Other cases in lower courts have not always followed Diamond but really because they have been more concerned with downloading from the Internet as in cases concerning Napster-type file sharing.

  42. OJ Law 167, 22/06/2001 P. 0010–0019.

  43. Copyright and Related Rights Regulations 2003.

  44. Commission of the EC v. United Kingdom of Great Britain and Northern Ireland (Case C-88/04), 19 February 2005 OJ C045 (action under Art. 226 EC for failure to fulfil obligations).

  45. See Griffiths (2010), at 87.

  46. See Brenncke (2005), at 13.

  47. Supra note 23.

  48. Gibson’s rights accretion hypothesis, at 898.

  49. US Constitution, Art. I, Sec. 8, clause 8: “The Congress shall have power … to promote … the useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries”.

  50. As just one example, Sec. 108 of the US Copyright Act permits libraries to make archival copies of works (extended to three copies by the Digital Millennium Copyright Act, Sec. 404). The exceptions are in Secs. 107–122 of the Act.

  51. Supra note 18, at 561.

  52. Ibid. at 577.

  53. Authorising home digital copying and used to mount an unsuccessful defence in the Napster cases: A&M Records v. Napster Inc, 239 F. Supp. 3d 1004 (9th Cir. 2001).

  54. 112 Stat. 2860 (1998): limiting the liability of Internet services for content transmitted.

  55. 9 F.Cas. 342 (D. Mass. 1841) (a claim for piracy of the copyright of writings of George Washington).

  56. Steward v. Arbend, 495 US 207 (1990) (fair use requires avoiding rigid applications of the statute).

  57. In Campbell, supra note 11, citing Stewart v. Arbend.

  58. Brenncke (2005).

  59. House of Representatives Report No. 1476, 94th Congress, 2nd Session, p. 65.

  60. Perfect 10, Inc. v. Amazon.com Inc., 508 F.3d 1146 (9th Cir. 2007). (consolidating earlier separate suits against Amazon and Google and finding Google’s wide-ranging use of thumbnails derived from Perfect 10 to be “highly transformative since their creation and display is designed to … display visual search results quickly and efficiently to users of Google Image Search” and to have benefits outweighing commercial damage to Perfect 10).

  61. Beebe (2008).

  62. The US has 13 federal circuit courts providing geographically defined appellate courts for cases concerning federal law. They are important courts in most practical cases since the US Supreme Court hears very few cases in the course of a year.

  63. Beebe (2008), at 565.

  64. 2005 U.S. Dist. LEXIS 26299 (S.D.N.Y. 2005).

  65. ABKCO Music, Inc v. Stellar Records, Inc., 96 F.3d 60, (2d Cir. 1996); Leadsinger, Inc. v. BMG Music Publishing, 429 F.Supp.2d 1190 (C.D. Cal. 2005) 512 F.3d 522 (9th Cir. 2008).

  66. Supra note 18.

  67. Laval (1990).

  68. Campbell, supra note 11(the Court of Appeals erred in applying the presumption that the commercial nature of the parody rendered it unfair, and erred in holding that 2 Live Crew had necessarily copied excessively from Roy Orbison’s composition “Pretty Woman”, considering the parodic purpose of the use).

  69. Beebe (2008), at 605.

  70. Lennon & Ors. v. Premise Media & Ors., 556 F.Supp.2d 310 (S.D.N.Y. 2008) (No. 08 Civ. 3813 (SHS). This case concerns transformation based on digital sampling from a recording, but the pursuit of Premise by John Lennon’s widow, children and EMI is an action concerning infringement of copyright in the published composition (music and lyrics), covered under federal copyright law.

  71. EMI Records Ltd. & Capitol Records, LLC v. Premise Media & Ors (2008) N.Y. Misc. LEXIS 7485 (N.Y. Sup. Ct. 8 Aug. 2008), denying an injunction on appeal by Premise for music recording sampling, and explicitly rejecting the earlier landmark case Bridgeport Music, Inc. & Ors v. Dimension Films & Ors 410 F3d 792, 6th Cir. 2005). EMI pursued Premise in the state court as the pre-1972 recording was covered by state law, not federal law. See also Campbell (supra note 11) in which Justice Souter quoted Lord Ellenborough in C arey v. Kearsley (170 Eng Rep 679 KB 1803, 681): “While I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles upon science”. Although Campbell is a parody case, its principles do invite wider application, and are completely in conflict with the distinction drawn in Bridgeport between sampling from recordings and other transformative uses, which has come to be seen as bad law: Mueller (2006). Campbell was extensively cited by Justice Lowe: “Campbell concerned parody, its principles extend to non-parody cases as well” (EMI v. Premise, note 5). The definitive Nimmer and Nimmer (1997) also weighs in against Bridgeport. The oft cited holding in Bridgeport, “Get a license or don’t sample”, is bad law because it (i) over distinguishes music recordings, and (ii) is out of line with congressional intent.

  72. Cf. Akerlof et al. (2002), correctly arguing that changes to rights now cannot influence past incentives, but where there is a risk of overlooking the present effect when people notice others being denied promised rewards.

  73. 430 F.3d 888 (7th Cir. 2005).

  74. Metro-Glodwym-Meyer et al. v. Grokster, Ltd., et al., 545 U.S. 913 (2005).

  75. Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).

  76. Harper and Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (assessing effect on the market without an explicit discussion of commerciality).

  77. Supra note 18.

  78. Ibid. at 607.

  79. Laval (1990), at 1126.

  80. Beebe (2008), at 611.

  81. 90 Stat. 2541 (1976).

  82. Martin (2002).

  83. Beebe (2008), at 595; that is, an estimated equation containing published status (and other factors) does show a significant effect from publication.

  84. 106 Stat. 3145 (1992) 17 U.S.C. Sec. 107 (2000 & Supp. IV. 2004).

  85. See Landes and Posner (1989) at 355 note 39.

  86. Posner (1992).

  87. 953 F.2d 731 (2d Cir. 1991).

  88. 811 F.2d 90 (2d Cir. 1987).

  89. Supra note 11.

  90. See also Recording Industry Association of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir. 1999) (copying of already downloaded file for personal use was fair use).

  91. Harper & Row v. Nation Enters., 471 U.S. 539 (1985).

  92. Beebe (2008), at 617.

  93. Field v. Google, supra note 38.

  94. Supra note 18 at 549.

  95. Ibid. at 595, but note that the small sample predates the Google case (Authors Guild, Inc. & Associated American Publishers, Inc. v. Google, Case No. 05 Civ. 8136 (S.D.N.Y.) 2005).

  96. Supra note 95. In 2009, French courts awarded €300,000 in damages and interest and ordered Google to pay €1,000 per day until it removed books from its database. A German action against Google was withdrawn in 2006. A similar Chinese case was commenced in 2009. Vaidhyanathan (2007), criticises Google’s book copying as an abuse of fair use.

  97. Authors Guild, Inc. et al. v. Google, Case 1:05-cv.-08136-DC, Document 971, Filed 03/22/11 (2nd Circuit) particularly 32–33. Judge Chin emphasised that not opting out is not necessarily opting in.

  98. Zywicki and Stringham (2011).

  99. Beebe (2008), at 574.

  100. Israel has moved in this direction via legislation. Canada is moving by case law following CCH Canadian Limited v. Law Society of Upper Canada, (2004) 1 S.C.R. 339. Australia introduced refinements to fair dealing, e.g. for format shifting, following a report by the Attorney-General of Australia published in 2005.

  101. Metall auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.), Decision of the German Federal Supreme Court Case No. IZR 112/06; 20 November 2008, citing Bridgeport on copying music composition and sampling music recordings.

  102. Gaste v. Kaiserman, 863 F.2d 1061 (on appeal, noting the limited language of music and the scope for compositional overlaps).

  103. Supra note 101.

  104. Produce Records Ltd v. BMG Entertainment International UK and Ireland Ltd (1999) (case settled out of court on the assumption that a 7.5-s sample of “Higher And Higher” incorporated into Los Del Rio’s “Macarena” was an infringement). In the composition case Ludlow Music Inc. v. Williams & Ors (No. 2) (2002) EWHC 638 (Ch), singer Robbie Williams paid over royalties for a two-line and approximate lyric sampling.

  105. Posner (1992), at 72.

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  1. George Mason University Law School, 3351 N Fairfax Dr #4, Arlington, VA, 22201, USA

    Antony W. Dnes (PhD, University of Edinburgh; formerly Professor of Economics, University of Hull, England, Senior Associated Scholar, Mercatus Center)

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Dnes, A.W. Should the UK Move to a Fair-Use Copyright Exception?. IIC 44, 418–444 (2013). https://doi.org/10.1007/s40319-013-0049-y

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