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29 April 2015

New rights to use copyright works

Copyright protects original literary, dramatic, musical, artistic and other works such as software. Copyright comes into existence on the creation of a work with no requirement for registration or other process by the author.

Copyright protection is essential for any creative business with the key right being that the owner of a copyright work can prevent anyone from copying the whole or a substantial part of that work.

Some recent changes have created a number of potentially important rights for third parties to use copyright works but only in very limited circumstances. The key new rights are:

Parody

Copyright works have always been subject to parody and often copyright owners have either consented to such works or not enforced their copyright against artists and comedians producing parodies. Taking enforcement action can often appear unnecessarily aggressive and more damaging to reputation than the parody itself.

However, in line with many other countries, the UK has now brought in a specific right to use copyright works for the purposes of caricature, parody or pastiche without the consent of the copyright owner. The scope of this defence is subject to considerable interpretation by the courts in each case and we can expect to see some interesting cases in the future. The courts already having determined that an essential characteristic of a parody is that it constitutes an expression of humour or mockery.

Use of a work for such purposes is limited to “fair dealing” which is discussed in more detail below.

Quotations

The use of quotations has historically been a significant grey area. Some quotations will be protected by copyright and other, purely spoken words, will not. It was possible previously to use certain quotations for the purposes of criticism and review but this was a limited exemption.

The exemption has now been extended so that quotations from copyright works are now permitted provided that:

  • the work has been made available to the public;
  • the specific use of the quotation is fair dealing (see below);
  • the extent of the quotation is no more than is required for the specific purpose; and
  • the source of the quotation is acknowledged (unless impractical to do so).

This gives a much greater ability for quotations to be used by third parties for commercial gain, with the limits of the law yet to be determined by the courts.

Fair Dealing

The concept of “fair dealing” is essential to these two new copyright exemptions. In addition to use of works for parody and quotations the “fair dealing” defence also applies in respect of use of copyright works for the purposes of: research and private study; criticism or review; and reporting current events. There is not however any general right of fair dealing with copyright works.

Even the courts have described fair dealing as “an elusive concept”. Although each case will turn on the specific circumstances, one key factor is whether the use of the work will commercially compete with the exploitation of the work by the owner of the copyright. Other factors will include the amount of the work used and the true purpose for which it is being used.

Orphan Works

Orphan works are works of copyright where it has not been possible to identify or trace the copyright owner. A new scheme has been introduced whereby such works can be used but only after following a detailed process which includes:

  • detailed searches to trace the copyright owner;
  • an application to the IPO (with a fee); and
  • a non-exclusive licence agreement and fee paid to the IPO on a commercial basis.

Although this may be useful in some situations the detailed process and the fees involved mean that it is likely to only have very limited impact where a work is particularly valuable or unique, is clearly still in copyright but it is impossible to trace the owner. In practice it does not address the challenge that many face in determining whether a particular work is still protected by copyright.

If you wish to discuss any of the issues discussed in this article, please contact us.