6. The future: The effect of the Ashdown case in the light of the InfoSoc Directive
- 6.1 Interpreting ‘fair dealing’ under the present law and the UK Regulations: Too
narrow for comfort?
- 6.2 Playing the game – public interest v. fair dealing: Follow tradition or break the
rules?
- 6.2.1 National perspective: ‘Based on this approach, we now have an Act in
which there are 42 sections of numbingly detailed exceptions to copyright
infringement.’
- 6.2.2 European perspective: ‘I may disagree with what you have to say, but I
shall defend to the death your right to say it.’
- 7. Conclusion
- Notes
1. Introduction
George Bernard Shaw wrote: ‘When a stupid man is doing something he is ashamed of, he
always declares that it is his duty.’(2) Years earlier La Rochefoucauld noted: ‘Hypocrisy is the
homage vice pays to virtue.’ But whether stupid or wise, men are not just hypocritical; they
are honestly unsure where their duty lies. This is one of the main reasons for the creation of
rules and exceptions to these rules.
The aim of this paper is to take the reader through the historical development of
exceptions to rules, in particular exceptions to copyright law in the light of technological
advancement. The present discussion will commence by going back in time to consider how
exceptions to rules came about and the reasons why exceptions were created in the first place.
Having established this brief history, the paper will then set out an overview of the
background to copyright exceptions before turning to the main discussion about the
development of copyright law and exceptions to copyright in the UK. The discussion will be
concluded by looking at the present position of copyright exceptions and the future impact
following the implementation of the Information Society Directive in the UK.
2. The historical development of exceptions to rules: Why do we need them?
- Just as people in all societies allow exceptions to many rules, in most – perhaps all – societies,
people follow other rules strictly allowing no exceptions. For example, the Siriono should not,
and did not, eat raw meat, even when they faced starvation. Iglulik Eskimo [sic] women with
infant children were never allowed to share their cooking utensils with other women . . . None
of this should be eye-opening for anthropologists, but with the decline of the normative
theory, reports such as these are frequently dismissed as statements of ‘ideal’ rules that would
not be borne out by real behaviour if the matter were investigated . . . As a result, strict rules
receive little attention in modern social theory; it is far more likely that the flexibility and
intracultural diversity of rules will be emphasized.(3)
As far back as 2500 years ago, organised societies based on laws or rules recognised the need
for exceptions, based on people’s social rank, relationships and motivation as well as the
circumstances surrounding the ‘crime’. However, as R.B. Edgerton states, a society has not
done without rules altogether, whereas societies have been reluctant to introduce exceptions
or defences to rules for many reasons.(4) Bearing this in mind, the central question that can be
asked is – why have exceptions to rules become almost a necessity? To quote Edgerton once
again:
- If rules are so important for the creation and maintenance of social order, then why allow
exceptions to them? Why not state these rules explicitly and unambiguously, follow them, and
penalize anyone who fails to do so? If the answer to the first question – whether rules are
indeed vital for social order – is pursued in a global way, it can become the epistemological
equivalent of gardening in a nuclear-waste dump. Only if we keep in mind that there are
different kinds of rules and that some rules help to solve problems for people while others
create problems – at least for some people – can we avoid the hazards of global assertions
about the role of rules in human affairs.(5)
As such, four general categories of exceptions to rules that lead to reduced responsibility have
been identified in most of the world’s societies. They are
- (1) exceptions based on temporary conditions, such as intoxication, spirit possession, illness
or strong emotions;(6)
- (2) specific statuses that carry with them longer-lasting exceptions from certain kinds of
responsibility; statuses providing such exceptions commonly include infancy, old age,
political authority and chronic mental illness;(7)
- (3) exceptions relating to special occasions, such as harvest or initiation rituals, funerals, and
women’s protests;(8) and
- (4) exceptions that apply only in certain settings, such as sanctuaries, men’s houses or
barrooms.
So what if a society has rules without any exceptions? Such a society will experience
inequality (as it is usually the powerful who impose strict rules on others) and a lack of co-operation from members of that society to abide by such strict laws where there is no reduced
rule-regulation where ‘release’ or ‘relaxation’ is possible.
Therefore, just as much as rules are significant and important for the creation and
existence of organised societies, so are exceptions to these rules – to ensure the smooth
running of a society. Rules, and rules about exceptions to rules, can never control all
behaviour effectively as there will always be some disruptive behaviour that is neither
regulated nor capable of punishment, and as a result there will be conflict. But to bring most
behaviour under the regulation of rules, including rules about exceptions to rules, is a
necessary step toward the creation of social order – and ‘even imperfect social order is a
supreme human achievement’.(9)
3. The Thin Red Line
The need to balance the interests of intellectual creators and the public was recognised not
long after the British Parliament introduced the first piece of copyright legislation in 1709.
The Preamble to the Berne Diplomatic Convention for the Protection of Literary and Artistic
Works 1886 states that ‘the countries of the Union, being equally animated by the desire to
protect, in as effective and uniform a manner as possible . . .’ (emphasis added). This has
remained the same basic element in the preambles of the subsequent acts of the Berne
Convention, which has been interpreted to mean that not only the creators’ rights have to be
taken into account, but also the public interests must be given due consideration.(10) At the first
1884 Berne Conference, the Chairman of the Conference, Numa Droz, re-iterated this point in
his closing speech:
- . . . due account did also have to be taken of the fact that the ideal principles whose triumph
we are working towards can only progress gradually on the so-varied countries that we wish
to see joining the Union. Consideration also has to be given to the fact that limitations on
absolute protection are dictated, rightly in my opinion, by the public interest. The ever-growing need for mass instruction could never be met if there were no reservation of certain
reproduction facilities, which at the same time should not degenerate into abuses . . .(11)
However, why have exceptions(12) to copyright attracted so much attention, as opposed to other
forms of intellectual property protection such as patent, trademark or design laws? In 1945,
Professor Zecheriah Chafee put forward six ideals of copyright law in his well-known article
‘What Is It that the Law of Copyright Is really Trying to Accomplish?’.(13) The fifth ideal titled
‘copyright should not stifle independent creation by others’ answers the above question.
Under this heading, Professor Chafee explains that whilst nobody else should market the
authors’ book, other people should be able to use it (emphasis added). It is the expression in a
book and not the ideas which are protected under copyright law, as opposed to patent,
trademark or design laws where it is the idea which is protected.
It is this explanation, accurately presented by Professor Chafee, which has led to the
inevitable confusion of the idea/expression fallacy. The idea/expression fallacy arises from
the argument that copyright law protects the form in which ideas are expressed.(14) This in turn
leads to the confusion of the ‘boundaries’ of copyright and the all-important balance that
needs to be struck. The rhetoric of Mark Rose makes these points clear –
- Copyright depends on drawing lines between works, on saying where one text ends and
another begins. What much current literary thought emphasizes, however, is that texts
permeate and enable one another, and so the notion of distinct boundaries between texts
becomes difficult to sustain.(15)
Professor Chafee’s and Mark Rose’s arguments of striking the correct balance and finding the
boundary between creator and user are further reinforced by an interesting argument delivered
by Raymond Irwin. At an inaugural lecture delivered at University College London in 1957,(16)
Irwin stated that unlike in music and art, ‘reproduction’ has no effect in the case of books. By
this he meant that a painting if reproduced is in some way altered, and generally for the
worse. In architecture, especially in those forms that depend for their value on the movement
of light and shade, such as the curved Byzantine mosaics, photographic reproduction can give
but a partial and imperfect reflection of the original. However, a typographical reproduction
of a book has no more effect on the original work than the printing of a piece of music has on
the original composition. However, Irwin does go on to state the ambiguity in the use of the
word ‘reproduction’. He explains this by saying that the printed page is not a reproduction of
the original creation, but an arrangement of conventional symbols of commonly accepted
meaning intended to serve as a key to the interpretation of the original. The principal agent in
the production of a book is, of course, its writer or author. His literary offspring are always
the result of a marriage between his own mind and the communicated experience of other
minds, either contemporary or in past time. And since this communicated experience is, in
the main, received through the medium of books, the conception and birth of the new book
commonly takes place in the author’s study.
Irwin’s lecture makes it clear that ‘reproduction’ is a necessary tool for the
development of literary society. Reproduction, according to Irwin, is an essential element for
an author and it cannot be stressed enough that the work of an author is always the ‘result of a
marriage between his own mind and the communicated experience of other minds, either
contemporary or in past time’.
In the light of Irwin’s argument, it is interesting to quote Benjamin Kaplan, who takes a contrary
view:
- The author was not, like a crow, to try to patch up a disguise with peacock’s feathers; like a
bee, he must steal, but then he must transform the sweetness of the flowers. Still in the final
count, imitation was essential; innovation was dangerous . . . The literary hero is one who,
having little learning or disdaining whatever learning he has, takes a fresh look at nature and
feeds his art direct from that source. The confrontation must be personal, not filtered through
past authority.(17)
Whether the reader favours the arguments of Chafee, Rose and Irwin or Kaplan, ultimately
the underlying theme is the same – the literary hero must have some freedom to create and re-create. He must be permitted to ‘steal’ under certain conditions but then, through his
creativity, must transform the stolen property into something original. It is these conditions to
‘steal’, which are known as ‘exceptions’, in the present context.
4. The shaping of copyright law and exceptions to copyright: Its historical development
Copyright has emerged as one method to cope with the issues of cultural and economic life,
the social attitude towards intellectual creations and their uses, and the position of the creator
in society. It is a means of organising and controlling the flow of information society.
This part of the paper will look at the historical development of copyright in the UK,
and the writer will draw particular attention to the development of the public interest debate
and the emergence of statutory exceptions to copyright law.
4.1 Once upon a time . . . information was completely free . . .
Before the right of copyright was recognised, information was circulated amongst
communities and it was believed that such information belonged to the society – not to an
individual creator. ‘Strikingly and significantly, early Indian history is the history of societies
rather than of persons. Even the great literary and philosophical masterpieces are all
anonymous. Not who said it, but what was said – this was what mattered’(18) (emphasis added).
History records that the first form of protection for intellectual literary creation took
place in ancient Egypt. The recording of human communication lay at the hands of the priest
or holy man who was considered to be the first to lay claim to knowledge.(19) If persons other
than the members of the priesthood were overheard reciting the sacred rituals, they were
liable to immediate execution.(20) Where the rituals were recorded in a more permanent form,
for example in a manuscript, Mark Rose confirms that the owner of such a manuscript was
understood to possess the right to grant permission to copy it.(21) Harry Ransom re-confirms
this point but also emphasises the public interest importance in early days and goes on to state
that in the exchange and copying of manuscripts, book property might have been controlled;
but ‘owners were willing to suspend their powers of control in order to encourage learning,
sustain faith, and insure their own opportunities for borrowing books’.(22) Furthermore, at this
early stage there was no statute which controlled the contents of manuscripts or regulated
their production nor were there any legal decisions on literary property.
As time passed, the individual who created literary works for the education and
entertainment of society came to be recognised as the ‘originator’ of that work, and the
permission of this originator had to be obtained if an individual wished to copy his work. As
more and more ‘authors’ came into being, obtaining permission became essential. In the
fourteenth century, Guillaume Degulleville, in his preface to Pélérinage de la vie humaine,
states that his dream, which he recorded in 1330, ‘ought not to have travelled without his
leave’.(23)Gutenberg’s invention of the printing machine in 1436 meant that there was a
proliferation of books and of printers, who at the same time functioned as bookbinders and
booksellers. The founding of the press in Westminster in 1476 by Caxton heightened this
issue.(24)
The earliest accepted form of legal ‘permission’ was the printing privileges in
fifteenth-century Venice. ‘Privileges’ were exclusive rights granted by the state to individuals
for limited periods of time to reward them for services or to encourage them in useful
activities.(25) Privileges were initially awarded for protecting mechanical inventions in Venice
and it seemed logical to extend this protection to books – which we would, today, call patents.
The first and most famous privilege was a monopoly on printing itself granted in 1469 for a
term of five years to John of Speyer; the first author’s privilege was granted in 1486 to Marc’
Antonio Sabellico, the historian of Venice. According to this privilege, Sabellico could
choose which printer would publish his book, and any other printer who published it would
be fined 500 ducats (emphasis added).(26) It is important to note at this stage that the privileges
were in favour of the printers and it was also the printers who would be liable in cases of
piracy. Authors as the creators of manuscripts or users as those using and possibly dealing in
these pirated manuscripts were out of the picture.
4.2 Many years later, in England, information belonged to printers: Sixteenth-century Britain
Printing privileges, which originated in Venice, spread to other European states in the
sixteenth century. In England, the first printing privilege was granted in 1518,(27) but as in
Venice most of the privileges were issued to printers. A Royal Printer appeared in 1485, and
from 1518 onward came a stream of royal grants of privileges and patents for the exclusive
printing of particular books. The first author’s privilege, in the form of a seven-year patent,
was awarded to the royal chaplain, John Palsgrave in 1530, for a textbook on the French
language.(28)
The setting-up of the Stationers’ Company, the ‘literary Constables’ as Kaplan called
it, created a second method of regulating the press and printing in England.(29) This method
permitted the printing of a book by entry in the company’s register. The traditional stationers’
term employed in the register was ‘copy’; a word that referred both to the original manuscript
and the right to make copies of it. Once again, though, only members of the guild – that is
booksellers and printers, not authors – could own copies.
The advancements brought about by printing and the press had almost given a right to
piracy. Following the setting-up of the Stationers’ Company in England, Queen Elizabeth
introduced the Injunction of 1559, which was directed against the publication of ‘unfruitful,
vain and infamous books and papers’, and on 29 June 1566, seven years after the Injunction, a
Council Order preserved the licensing provisions of 1559 which defined penalties for
violating printing regulations.(30)
The third major development in this period to deal with growing piracy was the Star
Chamber Decree of 23 June 1586, which ordered that all published works be licensed, by
registering with the Stationers’ Company.(31) Its chief purposes were the suppression of both
the press and the printers, the concentration of the trade in London, the support of the
Stationers’ Company and the enforcement of the Queen’s Injunctions.
The developments in sixteenth-century England reveal one important factor – the
printing privileges, the Stationers’ Company, Injunctions and Decrees were created with the
rights of the printer in mind and not those of the author. Most privileges were issued to
printers and only a handful – such as Sabellico, Petro Francesco da Ravenna of Venice and
Palsgrave of England – were issued author’s privileges.(32) The Stationers’ Company was set up
with printers in mind and the Injunctions stated the ‘rights and wrongs’ of the printers – the
right to copy by ‘which’ printers. Nowhere were the authors’ rights mentioned nor were the
authors remunerated in any way for their creative efforts. The need for protection of literary
works had certainly been recognised, but not necessarily with authors in mind. Although the
privileges were aimed at protecting authors’ manuscripts, the ‘right’ rested with the printers
and hence the authors were at the mercy of the printers.
What can be said of public interest at this stage? First, it must be understood that
public interest ‘is a defence outside and independent of statutes, is not limited to copyright
cases and is based upon a general principle of common law’.(33) In the development of
copyright law, in the UK, it is correct to state that until the twentieth century, the common
law right of public interest was the defence to copyright infringement. It was not until 1911
that exceptions, as a defence to copyright, appeared in a Statute.
Sixteenth-century Britain did not specifically focus on the public interest. However,
what can be implied from the above discussion is that the printers were eager to publish the
authors’ works and to get their names on the books; the authors themselves did not put up a
fight to be identified or remunerated for their works. The main concern was that a certain
printing company or printer had the ‘right’ to publish the authors’ work. What happened after
the book was published was nobody’s concern. The first of a number of technological
advancements had come between the author and the user – and for the first and last time in the
history of copyright, the tug-of-war between the author and the user was almost non-existent.
Piracy was committed by printers and/or booksellers, not by users, as it is the case now, and
the author who was clearly overshadowed by the printers had no claim to rights.
4.3 Information as property of printers questioned: Seventeenth-century England
Seventeenth-century England saw the face of copyright change dramatically. In 1641 the book
trade was thrown into chaos by the abolition of the Court of Star Chambers – the instrument
of authority behind both licensing and Stationers’ Company’s monopoly on publishing. The
Press Regulation Act of 1662 (hereinafter: Printing Act 1662), which restricted printing and
re-installed licensing, came to an end and through non-renewal expired in 1695.(34) This meant
that anything could be printed and anyone with access to a press, legal or surreptitious, could
print.
Yet, it was during these years, that copyright took on a different shape. On the same
day that the House of Commons rejected the Printing Act 1662, they appointed a new
Committee, headed by Edward Clarke, to prepare and bring in a Bill for the ‘Better regulating
of Printing and Printing Presses’. The Bill received its first reading in the House of Commons
on 7 March 1695, and by 30 March 1695 the House resolved that it should be committed.(35)
Although ultimately this Bill was rejected by the Commons and is obscured in copyright
history by the introduction of the first-ever Copyright Statute shortly afterwards, it was a
stepping-stone towards diverting the limelight from printers to authors.
Sections 5-8 of the Bill are particularly relevant in this context as it states that anyone
who put their name to a work would be accountable as the author of the work (along with the
printer); no one was allowed to sell a book which did not have the name printed on the work
and no one was allowed to use another’s name without authority.
- Ss. 5-8. – And be it further Enacted That whosoever shall order his name to be printed to any matter or
thing shall be answerable to the Law as if he were the Author of the same nevertheless the Author to
be also answerable and punishable for any thing illegal containd therein if such author can be
discoverd
- And be it further Enacted that noe person shall sell or publish any Book or pamphlet
pourtraicture or paper hereafter printed in England whereon the printer and publishers name is
not printed under the penalty of forfeiting _______ for every offence
- And be it further Enacted that noe person shall print the name of any person as
publisher of any book pamphlet pourtraicture or paper without authority given in writing for
soe doing . . .(36)
However, a sticky point in the Bill was that it made no attempt to protect any property in
books, unlike the Printing Act 1662. Both Stationers’ and independent printers objected to
losing the protective features of the Act. Their concerns were voiced by Clarke, who headed
the Committee for drafting the Bill and together with Freke wrote to John Locke complaining
that, ‘the Court, the Bishops and the Stationers Company take great exceptions to it for they
all agree to say that it is wanting as to the Securing of property’.(37) Locke’s reply on 18 March
1695
- . . . suggested that they might secure the ‘Author’s property in his copy’ by adding a clause
either to s.8 allowing a right to reprint any work with the name of the author or publisher upon
it for a limited time in years only, or to s.9 suggesting that a ‘receit’ be issued for the delivery
of the three copies which ‘receit’ . . . shall vest a privilege in the Author of the said book, his
executors administrators and assigns or solely reprinting and publishing the said book for
______ years from the first edition thereof.(38)
As stated above, the House of Commons rejected the Bill, but not before it had opened up
two important debates – whether the author was the owner of the property in books and the
‘impassionate debate’ on ‘literary property’, which was to continue for many years to come.
Both these debates were crucial in the making of the Statute of Anne 1710 and afterwards.
Once again, even although there were no concrete exceptions in place in seventeenth-century
UK statutes, two implications are apparent. First, the consequences if the author is recognised
as owner of the property and, secondly, consequences if the literary property lasts forever. If
both are answered in the affirmative, or even partially affirmative, the defence of public
interest would have been weakened considerably and in turn such high protection of literary
works would have inevitably opened up the floodgates to litigation.
4.4 Whence came the Statute of Anne 1710: Eighteenth-century Britain
- ‘They’ – the stationers, whose property by that time ‘consisted of all the literature of the
Kingdom; for they had contrived to get all the copies into their own hands’ – ‘came up to
Parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they
brought with them their wives and children to excite compassion, and induce Parliament to
grant them a statutory security’.(39)
Accordingly, in 1709 the British Parliament produced the most significant breakthrough in
the history of copyright law and introduced the first piece of copyright legislation in the world
– ‘An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the
Authors or Purchasers of such Copies, during the Times therein mentioned’ (hereinafter:
Statute of Anne). The Statute of Anne 1709, which came into force on 10 April 1710,(40)
provided that existing printed books would be protected for a period of 21 years and the
Stationer’s Company would hold the sole right to these books. More importantly, authors and
assigns were to enjoy a term of protection of 14 years from the date of publication for books
not yet printed. Following the expiration of 14 years, the sole right was to return to the author
if living, and if not, to assignees for another 14 years.(41) This was perhaps one of the most
significant amendments made by the House of Lords and signifies an attempt to further the
interest of the writer as distinguished from the bookseller.(42)
The Statute was in eleven parts, and although there are many provisions which
concentrate on the rights of printers and their liability, the author, as creator, had finally been
recognised and a term of protection during which time the publishers and authors had right to
literary property had been established, although this led to much debate based on public
interest in the years to come.
Before moving on to consider the public interest debate between the Statute of Anne
and the next major milestone – The Revision Act of 1842 – it must be pointed out that the
Statute of Anne ‘closed the period of experiment and tentative administration of literary
property and opened the period of modern copyright law’.(43)
4.5 The question of literary property and public interest examined: Eighteenth-century Britain
The question of literary property arose after the expiration of 21 years – in 1731, at which
point the Stationers’ Company lost the right to books which were already in print when the
Statute of Anne came into force. The booksellers argued that under common law authors had
a perpetual right to authorise printing. In other words, it was believed that an author had the
right to his manuscript indefinitely before it was printed, at which point the Statute of Anne
would regulate it. However, Kaplan questions:
- Did the copyright in published works cease at the expiration of the limited periods specified in
the statute, or was there a non-statutory, common law copyright of perpetual duration, with
the Statute merely furnishing accumulative special remedies during the limited period?
The famous cases of Millar v Taylor (1769)(44) and Donaldson v Beckett (1774)(45), which
followed the two Tonson cases,(46) tackled this issue. In brief, while the Court of King’s Bench
in Millar v Taylor held that there was a common law right of an author to his copy stemming
from the act of creation and that perpetual right was not taken away by the Statute of Anne,
the House of Lords in the case of Donaldson v Beckett overturned this decision.
The famous speeches of Mr Justice Wills, Lord Mansfield(47) and the dissenting opinion
of Mr Justice Yates in Millar v Taylor hold true even today and lay the basis for public
interest argument. The speech of Mr Justice Yates especially is thought provoking and
visionary:
- All property has its proper limit, extent and bounds . . . the legislature had no notion of any
such things as copyright as existing for ever at common law . . . [perpetual copyright] would
lead to inconvenient consequences the public may feel . . . instead of tending to the
advancement and the propagation of literature, I think it would stop it; or at least might be
attended with great disadvantages to it.(48)
The court in Donaldson v Beckett considered all the speeches from Millar v Taylor, but a
majority of judges, agreeing with the dissenting opinion of Mr Justice Yates, found that the
Statute of Anne had taken away the common law copyright. The respondents in Donaldson v
Beckett argued:
- There is nothing in the Statute of Queen Ann to take away that interest or property, to which
authors were before entitled, in the publication and sale of their own works. The object of that
statute was to secure literary property, by penalties, from piracy and invasion; and though the
protection given is only temporary . . . the statute expressly declares, that nothing contained in
it shall prejudice or confirm any right which the universities, or any person or persons, might
claim to the printing or reprinting of any book or copy then printed, or afterwards to be
printed.(49)
However, the court dismissed the arguments of the respondents and held in favour of the
appellants for a limited period of copyright protection. It is of little surprise then that under
Note 2 in Donaldson v Beckett it is stated that ‘the universities were so much alarmed by this
determination, that in the year 1775, they applied for and obtained an act of parliament for
securing to them and the colleges of Eton, Westminster and Winchester, the perpetuity in all
copies then, or at any time afterwards given to, or acquired by them’.(50) Donaldson v Beckett
appeared to have solved the question of literary property; however, it raised the question
about the use of copyrighted works by educational establishments during the term of
protection. The fact that, following the case, the above-mentioned educational establishments
were successful in securing a legal and perpetual right to all copyrighted works, meant that
the question of literary property remained unsolved and the need for creating an exception or
a well-defined public interest defence had become important. Copyright law and the public
interest defence were slowly but surely developing.
Following these landmark decisions, the Statute of Anne was amended in 1777 to
include musical and dramatic compositions as books,(51) and in 1833 the Dramatic Copyright
Act was created to provide for a public performance right in dramatic works.(52) However, it
was not until 1842 that the question of literary property arose again and copyright law took on
a different shape.
4.6 The question of literary property and public interest re-examined: Nineteenth-century
Britain
The passage of the 1842 Copyright Act opened up the debate of literary property once again
and the period of copyright protection was at the heart of this issue. The main proponent in
the debate for a natural right of the author was Sergeant Talfourd, a barrister, whilst Lord
Macaulay, the famous historian opposed the idea. The outcome of the debate and the Bill was
that the period of copyright was extended to life of the author and seven years after his death
or a term of 42 years from publication, whichever was the longer. The 1842 Copyright Act
had extended the term considerably since the Statute of Anne, but had arrived at a
compromise – thus protecting the author for a considerable period of time, after which time
the work would belong to the public domain.
Sergeant Talfourd argued passionately about extending the term of copyright from the
existing 28-year term provided by the Statute of Anne – to last the life of the author and sixty
years after his death. In an eloquent speech he stated:
- . . . At the moment when [the author’s] name is invested with the solemn interest of the grave
– when his eccentricity or frailties excite a smile or shrug no longer – when the last seal is set
upon his earthly course, and his works assume their place among the classics of his country –
your law declares that his works shall become your property and you requite him by seizing
the patrimony of his children.(53)
Talfourd’s eloquent speeches and his suggestion of continuing copyright protection after the
death of the author plus sixty years(54) makes him a visionary and an individual who was
passionate about protecting intellectual creators. One hundred and sixty one years later,
Sergeant Talfourd’s suggestion for an appropriate copyright term is not far off from what we
have now. However, the compromise that was arrived at ultimately was in line with economic
considerations at the time, literary advancement and struck the all-important balance between
creators of literary works and users of these works.(55)
Following the 1842 Copyright Act, minor legislative amendments were made – in
1862 the Copyright Act 1842 was extended to take into account paintings, drawings and
photographs;(56) and in 1882(57) and 1888(58) performance rights in musical works were regulated.
During the same time, international copyright law had started to develop with the introduction
of the Berne Convention 1886(59) – and it was this Convention which brought about significant
changes to UK copyright law and opened the gates to copyright exceptions in Statutes.
4.7 Twentieth-century Britain: Striking the balance between public interest and statutory
copyright exceptions – Copyright Act 1911
The Copyright Act 1911 brought about major reform and was modelled taking into
consideration the provisions of the Berne Convention and its revision in Berlin in 1908.(60) The
law was codified. The need for registration with the Stationers’ Company was abolished; the
term of protection was extended to life of the author plus 50 years; protection was extended to
artistic works and choreographic works as dramatic works and to photographs and sound
recordings, hence, stretching copyright law to take into account technological advancements.
However, a first in the history of copyright law in Britain is also featured in this same
Act – certain statutory defences were made available in relation to the infringement of
copyright, the most important of which is ‘fair dealing’. Section 2(1)(i)-(vi) of the Act sets
out six specific circumstances where, as a result of the introduction of exceptions, copyright
is not infringed.
- (1) The first relates to ‘fair dealing’ with any work for the purposes of private study, research,
criticism, review, or newspaper summary.
- (2) The second exception applies to artistic works, where an artistic work in the form of a ‘mould, cast,
sketch, plan, model, or study’ can be used for the purpose of work as long as it does not ‘repeat or
imitate the main design of that work’.
- (3) The third exception applies to making or publishing of paintings, drawings, engravings or
photographs of a work of sculpture or artistic craftsmanship.
- (4) Fourthly, the Act allows for the publication of ‘short passages from published literary works’ for
use by schools, ‘provided that not more than two of such passages from works by the same author are
published by the same publisher within five years, and that the source from which such passages are
taken is acknowledged’.
- (5) Publication in a newspaper of a report of a lecture delivered in public, unless it is stipulated to the
contrary.
- (6) Reading or recitation in public by one person of an extract of any published works.
Nearly five centuries after literary efforts were first recognised in UK, and nearly seventy
years since the British Parliament passed the 1842 Act, during which time various statutory
rights passed from printers to authors, but never to users, the time had come to extend rights
to users as well. The 1911 Act represents exceptions to copyright in its infancy, but is very
important as it created the base upon which the 1956 and 1988 Copyright Acts were finally
built. As already set out in the beginning of this paper, the existence of exceptions paves the
way for equality, and this too was the case with copyright law. The beginning of the twentieth
century re-shaped copyright law altogether.
Following the 1911 Act, protection was extended to photographs in films as artistic
works.(61) The author was given new rights with respect to the use of his work in the making of
cinematographic films and sound recordings. At the same time, a statutory licence for the
reproduction of musical works by ‘mechanical contrivances’ was introduced, known
thereafter in the UK as ‘the mechanical license’. In the meantime, international copyright
laws were developing and since the Berlin revision of the Berne Convention in 1908, it had
been revised twice in subsequent years.(62) Following the Brussels revision in 1928 and the
Universal Copyright Convention signed in 1952, the need for further reform of the UK
copyright law was felt. Furthermore, technological advances were taking place – the
inventions of the radio, television, photocopying machine and camera were all posing
challenges to copyright and as such there was an urgent need for reform.
4.8 Copyright Act 1956
The Copyright Act 1956 repealed the 1911 Act and provided for many firsts in UK copyright
law. It extended the fifty-year term from publication to films, radio and television broadcasts
and in published editions of works. In complying with the Brussels Act of the Berne
Convention, it introduced a specific right to object to false attribution of authorship. The Act,
in general, represented copyright law in the modern age.
As far as exceptions were concerned, the 1956 Act built upon the 1911 Act and
provided for a comprehensive list of exceptions. As opposed to one section, which was
devoted to exceptions in the 1911 Act, the 1956 Act provided for six very comprehensive
sections dealing with exceptions to copyright. Sections 6-10 of the 1956 Act are detailed in
setting out the provisions. The scope of this paper does not allow the writer to carry out an
analysis of each of the sections. However, in a broad sense, it can be pointed out that the 1956
Act provided the defence of fair dealing for three purposes: research or private study;
criticism or review; and reporting current events;(63) it set out special exceptions in respect of
libraries and archives;(64) records of musical works;(65) protection of artistic works;(66) in respect
of industrial designs(67) and for use of copyright material for education.(68)
It is fair to say that copyright law was developing in the correct direction. Authors had
been recognised, users’ rights were given importance and law was keeping up with
technology, even though it may have been reactive. John Feather notes of the 1956 Act that
‘the fair dealing rules were a step in the right direction’ and this was certainly true.(69)
4.9 Copyright, Designs and Patents Act 1988
The Copyright, Designs and Patents Act 1988 (hereinafter: CDPA 1988) is the great
consolidated law which the UK has awaited for over a century. The need for the CDPA 1988
was recognised following the Stockholm and Paris revisions of the Berne Convention in 1967
and 1971. Accordingly, a Committee was set up in 1973 under the Chairmanship of Mr
Justice Whitford.
Apart from consolidating the copyright law and attempting to strike a satisfactory
balance between the creators and users, which was lacking in the 1956 Act, as there was little
protection for authors, artists or composers, the Whitford Committee were committed to
providing copyright laws which were in the public interest. The Whitford Committee
considered public interest within the context of the relationship between national intellectual
property rights and the principle anchored in EC law of free flow of goods and services; in
relation to the term of protection; with respect to exceptions;(70) i.e. uses of copyright works
which are considered non-infringing and keeping in step with the Stockholm revision of
1967, Article 9(2) which introduced the Berne three-step test,(71) the Committee recommended
a general exception in this regard.
The commitment of the Whitford Committee was re-enforced by the Green Paper in
1981,(72) which stated:
- Copyright plays a significant role in commercial life and has a considerable impact in areas
such as education where there is also a public interest . . .
- The aim of such exceptions is to avoid copyright acting as an impediment to the use of
copyright material for certain defined purposes . . .
One of the more interesting recommendations made by the Whitford Committee was to
restrict the scope of the term ‘research and private study’ so as to exclude research carried out
for the business ends of a commercial organisation. However, this recommendation proved to
be controversial and those in industry argued ‘that to exclude commercial research would
impose additional costs on industry which would decrease its world-wide competitiveness
and that any revenue raised would be swallowed up by the administrative costs of collecting
it’.(73) The Government, clearly influenced by this argument, dropped the restriction.
It is interesting to note that the most recent proposed copyright regulations in the UK –
the Copyright and Related Rights Regulations 2002, which implements the Information
Society Directive (hereinafter: InfoSoc Directive) – excludes commercial research in the
suggested amendments to s29 of the CDPA 1988, which deals with fair dealing.(74) The
suggested amendment stipulates
- Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for
a non-commercial purpose does not infringe any copyright in the work provided that it is
accompanied by a sufficient acknowledgement.
The wording implies that research for commercial purposes is excluded from the meaning of
‘fair dealing’.
The 1988 Act is extremely comprehensive in providing exceptions and, in accordance
with the recommendations made by the Whitford Committee, the Act boasts of 56 copyright
exceptions in total. However, it must be noted that some of these exceptions have been added
on during the past years, in complying with EU Directives.
The Act provides for general exceptions under the ‘fair dealing’ provision;(75)
exceptions in relation to education;(76) libraries and archives;(77) public administration;(78)
computer programs;(79) designs;(80) typefaces;(81) works in electronic form;(82) miscellaneous
exceptions – in relation to literary, dramatic, musical and artistic works;(83) lending of works
and playing of sound recordings;(84) films and sound recordings;(85) broadcasts and cable
programmes(86) and adaptations(87).
It is not the aim of this paper to analyse the copyright exceptions within the 1988 Act;
however, it is hoped that the present discussion has taken the reader on the journey of the
historical development of exceptions and exception to copyright law. The discussion so far
has been reflective of the historical developments of the rights of printers, authors and,
finally, users – the latter being established first by the common law defence of public interest
and thereafter by statute law. The paper will now turn to considering the users’ rights in more
detail, especially in the light of some interesting cases and the implementation of the InfoSoc
Directive in UK.
5. The present and future: Public interest and statutory exceptions to copyright law
Since the introduction of statutory exceptions in 1911, public interest and statutory exceptions
to copyright have gone hand in hand, and the making of the 1988 Act is the most effective
example of this fact. For example, prior to 1911 the defence of ‘fair dealing’ had been
recognised in case law,(88) and therefore the defence of public interest and fair dealing lay
parallel to each other. Similarly, the public interest defence, which had been outside and
independent of statutes in relation to copyright law, was given statutory recognition in 1988.
Section 171(3) of the 1988 Act states:
- Nothing in this Part affects any rule of law preventing or restricting the enforcement of
copyright, on grounds of public interest or otherwise.(89)
As such, the 1988 Act was instrumental in giving statutory effect to the public interest
defence, whilst ensuring that the judiciary would remain free to develop a general public
interest defence outside the boundaries of the statute if the need may be. It is the present
opinion that giving this ‘half-hearted’ statutory recognition to public interest in copyright law,
whilst keeping the doors open to develop the defence at common law, has been the main
cause of contention in the post-1988 cases. As Lord Beaverbrook put it during the passage of
the Bill:
- It acknowledges the continuing effect of case law without attempting to codify it, thus leaving
the law on this matter where it has always been, in the hands of the courts.(90)
Two very recent cases shed light on the above opinion. In 2001, in the case of Hyde Park
Residence v Yelland & Others(91) the Court of Appeal considered the public interest defence in
the light of statutory exceptions. The Court rejected that there was a general defence of public
interest to an action for infringement of copyright. They argued that copyright is an
intellectual property right provided for by the 1988 Act. The 1988 Act contains detailed
provisions of the types of acts which can be carried out by persons without the copyright
owner’s consent.
- They range from fair dealing to use for education, by libraries and for public administration.
They . . . set out in detail the extent to which the public interest overrides copyright . . . The
1988 Act does not give a court general power to enable an infringer to use another’s property,
namely his copyright, in the public interest. Thus a defence of public interest outside . . . the
1988 Act, if such exists, must arise by some other route.(92)
However, in the following year, in 2002, the Court of Appeal in the case of Ashdown v
Telegraph Group Ltd(93) stated that where part of a work is copied in the course of a report on
current events, the ‘fair dealing’ defence will normally afford the Court all the scope that it
needs properly to reflect the public interest in freedom of expression and, in particular, the
freedom of the press. The Court emphasised that, following the entry into force of the Human
Rights Act 1998,(94) the considerations of public interest are paramount. The defence of fair
dealing was not made out in this case.
6. The future: The effect of the Ashdown case in the light of the InfoSoc Directive
The above two contrasting cases, shed two opposing views in relation to the defence of public
interest and statutory exceptions to copyright. In the light of these two recent decisions, it is
also interesting to consider the position of the statutory exceptions in the InfoSoc Directive
and the UK statutory Instrument implementing the Directive, which came into force on 31
October 2003.(95) The impact of the InfoSoc Directive is such that ‘while there is no obligation
on Member States to provide for any of these exceptions in national law, it is not permitted to
continue with existing exceptions, or introduce new exceptions, which fall outside the scope
of any one or more of the categories defined in articles 5.2 and 5.3‘ (emphasis added).(96) In
other words, the Directive provides for a closed set of exceptions, which explicitly excludes
the public interest defence, for example in relation to freedom of expression, as was held in
the Ashdown case. The question to be addressed in this regard, then, is the position of the
public interest and the interpretation of the statutory exception of fair dealing, under the
CDPA 1988, following the coming into force of the UK Regulations. This gives rise to two
specific questions
- (1) Is the existing wording and re-wording of ‘fair dealing’ in the UK Regulations too narrow
to find in favour of the public interest defence?
- (2) More importantly, even if the answer to the above question can be answered in the
negative, will the UK courts go beyond the closed list of exceptions provided for in the
InfoSoc Directive when interpreting ‘fair dealing’ under the new UK law?
The present discussion will look at each of these questions in turn.
6.1 Interpreting ‘fair dealing’ under the present law and the UK Regulations: Too narrow for
comfort?
The first point to be made in this regard is that the UK Regulations implementing the InfoSoc
Directive, in provisions amending sections 29(97) and 30(98) of the CDPA 1988, has ‘hung on’ to
the ‘fair dealing’ exception, whilst adapting it to suit the provisions of the Directive. These
two amending provisions provide:
- s29.-(1) Fair dealing with a literary, dramatic, musical . . . for the purposes of research for a
non-commercial purpose does not infringe any copyright in the work provided it is
accompanied by a sufficient acknowledgement . . . (emphasis added)
- s30.-(1) Fair dealing with a work for the purpose 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 and provided that the work has been made
available to the public. . . (emphasis added)(99)
A reading of the provisions amending s29 and s30 of the CDPA 1988 makes it clear that the
wording has not been changed too much from the existing law, except for the addition of
‘non-commercial’ and ‘sufficient acknowledgement’ in s29 and ‘provided that the work has
been made available to the public’ in s30, to keep in step with the Directive. It is the present
opinion that the existing fair dealing defence is quite restrictive – the reason why there have
been many attempts in the past to rely on the public interest defence.(100) Past case law reveals
that there has been strong support for the view that such a defence exists and is available in
broadly defined circumstances.(101) The additional conditions under the Regulations, as already
mentioned, strikes a fair balance, yet sets out further restrictions, hence narrowing the scope
of s29 and s30. The question is whether the courts will continue to take a broad approach in
interpreting these sections?
6.2 Playing the game – public interest v. fair dealing: Follow tradition or break the rules?
Simply, future case law will provide a definite answer to the question whether the UK and
European courts will go beyond the closed list of exceptions provided for in the InfoSoc
Directive when interpreting ‘fair dealing’ under the new UK Regulations. At present, we can
merely speculate and assume certain outcomes based on existing facts. The present discussion
will speculate from both national and European perspectives.
6.2.1 National perspective: ‘Based on this approach, we now have an Act in which there are
42 sections of numbingly detailed exceptions to copyright infringement.’(102)
Already, it has been established that there are 42 circumstances (including criticism, review
and news reporting and ‘fair dealing’) under the CDPA 1988 where freedom of expression
trumps copyright protection.(103) Therefore, if any one of the cases should fall into these 42
categories within the constraints of the CDPA 1988, freedom of expression will win the day.
In cases where fair dealing and public interest lie parallel to each other, i.e. in borderline
cases, it may be the case that the UK courts will follow in the footsteps of the Ashdown case
and use its ratio decidendi to allow a broad scope when interpreting fair dealing, on a case-by-case basis, to take into account freedom of expression and freedom of the press. In
addition, the Preamble to the InfoSoc Directive states:
- The proposed harmonisation will help to implement the four freedoms of the internal market
and relates to compliance with the fundamental principles of law and especially of property,
including intellectual property, and freedom of expression and the public interest.
This being the ‘aim’ of the Directive, the hope for the future is that the national courts will
use it as a means of guidance to interpret the new law. As far as the UK is concerned, the
question that needs to be asked is whether, in interpreting the ‘aim’ or the Preamble to the
Directive, the use of the Human Rights Act 1998 will be permitted within the scope of the
Directive or whether it will be seen to cross the boundaries of the exhaustive catalogue of
exceptions?
The definite circumstances where the courts will avoid a broad interpretation of fair dealing(104)
will include where the need to uphold the ‘sanctity of contract’ prevails;(105) national safety,
territorial integrity or public safety is at stake;(106) need for prevention of disorder or crime;(107)
protection of the reputation or the rights of others(108) and in order to maintain the authority and
impartiality of the judiciary.(109)
6.2.2 European perspective: ‘I may disagree with what you have to say, but I shall defend to
the death your right to say it’(110)
The starting point for looking at the relationship between the statutory defence of fair dealing
and public interest from a European point of view is to examine the relationship between the
ECHR and the European Court of Justice (hereinafter: ECJ).(111) Article 10 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention)
states:
- 1. Everybody has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
- 2. The exercise of these freedoms . . . may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
Article 6(2) of the Treaty on European Union (hereinafter: TEU) states:
- The Union shall respect fundamental rights, as guaranteed by the European Convention for
the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November
1950 . . .
A reading of Articles 10 and 6(2) of the Convention and the TEU, respectively, makes it clear
that the public interest right and other rights such as freedom of expression and freedom of
the press will prevail above Community law as guaranteed by the Convention, in so far as the
conditions under Article 10(2) are met and proved.(112) The question is: Has this been the case
in practice? European case law in this context generally reflects that where there has been a
conflict between the ECHR and the ECJ, the ECJ has abided by the laws of the ECHR and
viewed Article 10 ‘among the general principles of law the observance of which is ensured by
the Court of Justice’.(113)
In practice, the application of freedom of expression by the ECJ, over and above
Community law was seen in the cases of Ter Voort,(114) Commission v Netherlands(115) and the
most recent case of Philip Morris International, Inc.(116) Under the freedom of commercial
expression, the Court interpreted Article 10 once again, in R v Secretary of State for Health,
ex p Imperial Tobacco Ltd.,(117) finding in favour of freedom of expression.
These cases establish that where there is a conflict between Community law and a
fundamental human right such as freedom of expression, the ECJ has found in favour of the
fundamental right, although this has not always been the case. Restrictions on the freedom of
expression on the ground of protection of health were permitted and as such the Court ruled
that restrictions on the advertising of alcoholic beverages to consumers under Swedish law
were justified on this ground.(118)
The present discussion will not be complete without making reference to the most
recent Charter of Fundamental Rights of the European Union,(119) proclaimed at the European
Council in Nice in December 2000.(120) The European Charter of Fundamental Rights sets out
in a single text, for the first time in the European Union’s history, the whole range of civil,
political, economic and social rights of the European citizens and all persons resident in the
EU. They are based in particular on the fundamental rights and freedoms recognised by the
European Convention on Human Rights and other international conventions to which the
European Union or its Member States are parties. As such, the Charter states in Article 11:
- 1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers.
- 2. The freedom and pluralism of the media shall be protected.
A reading of Article 11 reveals that it is not too different from Article 10 of the Convention.
The main difference is in Article 11(2) of the Charter, where special mention is made of the
freedom of the press. This may be the cause of future fair dealing conflicts from the point of
view of copyright law. It is difficult to speculate as to the outcome of this latest development
at present, especially because the Charter does not yet have full force of the law, which has
been a point of criticism and which will be discussed at the Intergovernmental Conference in
2004. At present, the hope is that with cases such as Ashdown and developments such as the
Charter, fair dealing will give the courts all the scope that is necessary to take into account
public interest and to interpret each case fairly.
7. Conclusion
In drawing a conclusion, it is clear that a fair society will always provide for exceptions to
rules. The present discussion established this fact before proceeding to look at the UK, which
recognises exceptions to intellectual property rights, and hence copyright laws, as paramount.
The discussion further attempted to trace the development of the public interest defence and it
must be emphasised that up until the twentieth century (in particular 1911), the common law
right of public interest was the defence to copyright infringement. This common law defence
played a vital role and was developed especially throughout the eighteenth and nineteenth
centuries by visionaries such as Mr Justice Yates in Donaldson v Beckett(121) and Sergeant
Talfourd during the passage of the 1842 Copyright Act.(122)
The 1911 Act brought about major reform and, whilst it gave effect to the Berne
Convention, it also provided for statutory exceptions to copyright law. These exceptions have
been developed and re-modelled throughout the twentieth century, at the expense of public
interest almost taking a back seat, against the growth of statutory exceptions in copyright law.
However, the latter part of the twentieth century (in particular 1988) saw copyright law
embracing the common law public interest defence and incorporating it into statute law even
though it was a half-way house, as already discussed.
The twenty-first century has turned things round again. As the law stands now, the
position is such that there is a risk of this important public interest defence being ousted from
copyright laws, as a consequence of the InfoSoc Directive. The above discussion speculated
on the matter and established that there is a possibility that the UK and European courts will
follow tradition and interpret ‘fair dealing’ in a broad sense, if the need may be, at the risk of
going past the closed set of exceptions provided in the InfoSoc Directive.
However, only time will tell whether the national or European Courts will take a
different stance once the Directive and UK Regulations are put to the test under case law. As
such, the questions that the writer will leave open is whether Ashdown confirmed this broad
interpretation of fair dealing to allow the public interest defence in copyright law or whether
this recent ruling will be stifled by the InfoSoc Directive, which does not provide for a public
interest defence within its catalogue of closed exceptions. Finally, what effect will the Human
Rights Act 1998 have on the UK copyright Regulations now that it is implemented?
The hope for the future is that the public interest defence and fair dealing continue to
lie parallel to each other with the public interest defence being considered if the need may be.
After all, laws and exceptions to laws are created with the public interest in mind and it
would go against the entire grain of law making if this concept was to be ignored.
In drawing a conclusion, it is timely and appropriate to bridge the time between the
eighteenth and nineteenth centuries and twenty-first-century Britain. In 1883, Scrutton in the
first edition to his text concluded that his lengthy treatise had ‘. . . tended to show the
“communistic” character of the Law of Copyright’. ‘Literary and artistic productions,’ he
reminds us, ‘are treated as property, but that property is created in, and limited by, the
interests of the community.’(123)
One hundred and twenty years later, his words have been given effect by modern
statute law and have been echoed in recent case law, thus confirming that ‘property is created
in, and limited by, the interests of community’.
- The . . . courts may now have to consider the public interest in freedom of expression when
they assess copyright infringement on a case-by-case basis. Furthermore, the public interest
defence retained by section 171(3) has been opened up. Notwithstanding that greater
uncertainty may result, the Court of Appeal was probably right in thinking that there will not
be a flood of novel cases. Instead, we now have a copyright regime which is more sensitive to
Strasbourg jurisprudence.(124)
Notes
1. The author is a first-year Ph.D. student at the School of Law, University of Edinburgh, under the
supervision of Professor Hector MacQueen and Dr Charlotte Waelde, and would like to thank them for their
assistance and helpful comments on an earlier draft.
2. Caesar and Cleopatra (1946).
3. Edgerton R. B., Rules, Exceptions, and Social Order (Berkeley, Los Angeles, London: University of
California Press; 1985), pp. 15-16.
4. Id., at p. 255.
5. Ibid.
6. For example, homicide committed while one is enraged or in fear for one’s life is a defence to murder,
namely self-defence. Homicide need not be excused or even punished less severely, but when a society denies
exemption on the basis of strong emotion, it does so despite the presence of a condition that makes ordinary
rule-governed propriety problematic and creates the possibility that there should be legitimate exceptions to
rules for people who are temporarily affected by one of these conditions – see op. cit., Edgerton at p. 208.
7. If physically impaired persons are to remain members of society, some exceptions to the rules may
have to be allowed and age be taken into account – especially children and the elderly.
8. Donald Tuzin relates an example from Papua New Guinea of the guilt and confusion that Ilahita
Arapesh men felt when ritual occasions obliged them to be cruel and sadistic to their wives and children. As
Tuzin describes, these men loved their wives and children, yet, during certain ceremonies, these same men were
required to follow rules that forced them to carry out acts of ritual cruelty against women and children. See
Tuzin D. F., ‘Ritual Violence among the Ilahita Arapesh: The Dynamics of Moral and Religious Uncertainty’ in
Herdt G. H., (ed.,) Rituals of Manhood: Male Initiation in Papua New Guinea (Berkeley, Los Angeles, London:
University of California Press; 1982), pp. 321-355.
9. Op. cit., Edgerton, chapter 12.
10. The same principle has been voiced in the Preamble to the WIPO Copyright Treaty – ‘recognizing the
need to maintain a balance between the rights of authors and the larger public interest . . .’; Preamble to the
WIPO Performances and Phonograms Treaty – ‘recognizing the need to maintain a balance between the rights
of performers and producers of phonograms . . .’.
11. Ficsor M., The Law of Copyright and the Internet: The 1996 WIPO Treaties, Their Interpretation and
Implementation (Oxford, New York: Oxford University Press; 2002), chapter 5, ‘Digital Agenda – Limitations
and Exceptions’, at p. 258.
12. Often, the words, ‘exceptions’, ‘limitations’ are used interchangeably. It is interesting to note that the
Berne Convention does not use the words ‘exceptions’ or ‘limitations’, but employs the verb ‘to permit’ or the
adjective ‘permissible’ when referring to ‘free uses’. It is the Rome Convention, in Article 15, which initially
uses such terminology – ‘exceptions to the protection . . .’ and the words ‘limitations’ and ‘compulsory licences’
are used in this Convention. All of these words basically mean the same although ‘exceptions’ seems to mean
free uses whilst ‘limitations’ seem to cover both free uses and non-voluntary licences and ‘compulsory licence’
covers any kinds of non-voluntary licences.
13. For a detailed analysis of Professor Chafee’s six ideals, see Davies G., Copyright and the Public
Interest (2nd edn.) (London: Sweet & Maxwell; 1994), chapter 9, pp. 244-247.
14. Laddie, Prescott & Vittoria, The Modern Law of Copyright and Designs (2nd edn.), Vol. 1 (London,
Dublin, Edinburgh: Butterworths; 1995), p. 60.
15. Rose M., Authors and Owners: The Invention of Copyright (Cambridge Mass., London England:
Harvard University Press; 1993), p. 3.
16. Irwin R., The Golden Chain: A Study in the History of Libraries, inaugural lecture delivered at
University College London, 21 November 1957 (London: H.K. Lewis & Co Ltd.; 1957); see also Savage Ernest
A., The Story of Libraries and Book Collecting (London: George Routledge & Sons Limited: New York: E.P.
Dutton & Co.; 1908).
17. Kaplan B., An Unhurried View of Copyright (New York, London: Columbia University Press; 1966),
chapter 1, ‘The First Three Hundred and Fifty Years’, p. 24.
18. Oliver R., Communication and Culture in Ancient India and China (Syracuse University Press; 1971)
as referred to in Ploman E. W. & Hamilton L. C., Copyright – Intellectual Property in the Information Age
(London, Boston and Henley: Routledge & Kegan Paul; 1980), p. 4.
19. Professor J. Z. Young in his Reith Lectures, ‘Doubt and Certainty in Science (1951)’ suggests that
three particular achievements marked the first appearance of human civilisation in early times. One was the
gathering of men into cities, with all the social organisation that belongs to urban life. Another was the growth
of the religious idea, expressed by means of holy places (grove, sacred hill, shrine, temple or church) which
served to bind the urban population into a unit. A third was the development of the art of human communication
[the art of recording communications – which distinguishes human communication more sharply from animal
communication]. See op. cit., Irwin R., at p. 4.
20. Op. cit., Ploman & Hamilton, at p. 6.
21. Op. cit., Rose M., at p. 9.
22. Ransom H., The First Copyright Statute: An Essay on Act for the Encouragement of Learning 1710
(Austin: University of Texas Press; 1956), chapter 2.
23. Root R. K., Publication before Printing: Publications of the Modern Language Association, XXVIII
(1913), pp. 428-429 in op. cit., Ransom H., at pp. 18-19.
24. See op. cit., Kaplan B., pp. 1-25.
25. Op. cit., Rose M., pp. 9-10.
26. Ibid.
27. See Feather J., Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London,
New York: Mansell Publishing Limited; 1994), chapter 1, ‘The Origins of Copyright 1475-1640’, pp. 10-36.
28. Op. cit., Kaplan B., chapter 1.
29. Queen Mary I by letters patent of 4 May 1557 set up the Stationers’ Company – see also ibid.
30. Op. cit., Ransom H., pp. 35-36.
31. The English Star Chamber was subsequently abolished in 1641.
32. Op. cit., Kaplan B., chapter 1.
33. Ungoed-Thomas J., Beloff v Pressdram [1973] 1 All ER 241 at 259. Also op. cit, Davies G., at p. 63.
34. For an account of the period between 1641-1662, see op. cit., Ransom H., at pp. 66-75.
35. For an account of the different stages of the 1695 Bill, see Deazley R., On the Origin of the Right to
Copy: Charting the Movement of Copyright Law in Britain throughout the Eighteenth Century (1695-1775),
Ph.D. thesis (unpublished), pp. 11-22.
36. For a copy of the Bill, see, De Beer E. S. (ed.), The Correspondence of John Locke in Eight Volumes,
Volume Five, Letters Nos. 1702-2198 (Oxford: Clarendon Press; 1979), pp. 791-795.
37. Id., at p. 291, letter no. 1860.
38. Id., at pp. 795-796, Appendix no. 3.
39. Lord Camden, in op. cit., Kaplan B., p. 6.
40. There has been a great deal of confusion about the date of the statute, the reason being that the
legislative and legal year did not end until 24 March 24 1710. See also op. cit., Ransom H., at pp. 98-99.
41. For a comprehensive overview of the history and development of copyright law, see Davies Gillian,
Copyright and the Public Interest (2nd edn.) (London: Sweet & Maxwell; 2002), chapter 4.
42. ‘Section XI. – Provided always, that after the Expiration of the said Term of fourteen Years, the sole
Right of printing or disposing of Copies shall return to the Authors thereof, if they are then living, for another
Term of Fourteen Years.’
43. Op. cit., Ransom H., at p. 106.
44. 4 BURR. 2301.
45. 4 BURR. 2407.
46. Tonson v Walker 4 BURR. 2325; Tonson v Collins 1 Black W. 301, 96 Eng. Rep. 169 (K.B. 1761).
The two Tonson cases involved the works of John Milton’s ‘old books’ whose copyright had expired under the
statute in 1731.
47. Lord Mansfield was the strength behind respectable stationers. He had appeared as their counsel in the
two Tonson cases.
48. 4 BURR. 2301 at 2391.
49. 4 BURR. 2407 at 2416 (emphasis added).
50. Id., at 2419. The Act of Parliament can be found at 15 Geo. III. Vol. 12, c. 53 at pp. 341-343: ‘An Act
for enabling the two Universities of England, the four Universities in Scotland, and the several colleges of Eton,
Westminster, and Winchester, to hold in Perpetuity their Copy Right in Books, given or bequeathed to the said
Universities and Colleges for the Advancement of useful Learning and other Purposes of Education; and for
amending so much of an Act of the eighth Year of the Reign of Queen Anne, as relates to the Delivery of Books
to the Warehouse Keeper of the Stationers Company, for the Use of the several Libraries therein mentioned.’
51. Bach v Longman [1777] 2 COWP 623.
52. Dramatic Literary Property Act 1833 (3 & 4 Will., 4, c. 15).
53. Stewart S.M., Two Hundred Years of English Copyright Law [1977] Copyright 228 in op. cit., Davies
G., at p. 34.
54. For a good discussion of Sergeant Talfourd’s views, see Seville C., Literary Copyright Reform in
Early Victorian England (Cambridge, New York, Melbourne: Cambridge University Press; 1999), pp. 16-32.
55. For the opposing speeches of Sergeant Talfourd and Lord Macaulay and the passage of the 1842 bill,
see id., especially chapters 1-3.
56. Fine Arts Copyright Act 1862 (25 & 26 Vict., c. 68).
57. Copyright (Musical Compositions) Act 1882 (45 & 46 Vict., c. 40).
58. Copyright (Musical Compositions) Act 1888 (51 & 52 Vict., c. 17).
59. Berne Convention for the Protection of Literary and Artistic Works 1886.
60. For further background information on the setting-up of the Berne Union and Berne Convention, see
Ricketson S., The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986. Also see
Sterling J. A. L., World Copyright Law (London: Sweet & Maxwell; 1998), chapter 1.
61. Barker v Hamilton (1912) 28 TLR 496.
62. In 1928 in Rome and in 1948 in Brussels.
63. Section 6.
64. Section 7.
65. Section 8.
66. Section 9.
67. Section 10.
68. Section 41.
69. Op. cit., Feather J., at p. 209.
70. For a discussion on each of these public interest areas, see op. cit., Davies G., pp. 42-48; 56-60.
71. For a guide to the ‘three-step’ test, see op. cit, Sterling J. A. L., chapter 10; op. cit., Ricketson S., at pp.
477-489; Heide T., The Berne Three-Step Test and the Proposed Copyright Directive [1999] EIPR 105.
72. Cmnd 8302.
73. Whitford Committee report, Cmnd 6732.
74. Patent Office Consultation Paper on Implementation of EC Directive 2001/29/EC at
http://www.patent.gov.uk/about/consultations/eccopyright/index.htm.
75. Ss. 29-31.
76. Ss. 32-36A.
77. Ss. 37-44.
78. Ss. 45-50.
79. Ss. 50A- 50D.
80. Ss. 51-53.
81. Ss. 54-55.
82. S. 56.
83. Ss. 57-65.
84. S. 66.
85. Ss. 66A-67.
86. Ss. 68-75.
87. S. 76.
88. Bradbury v Hotten [1872] L.R.8 Ex.1.
89. For an analysis of s171(3), see Burrell R., Defending the Public Interest [2000] EIPR 394 at pp. 402-404.
90. Hansard, H.L. Vol. 495 col. 632.
91. [2001] Ch. 143.
92. Id., at para. 43.
93. [2002] E.C.D.R. 32.
94. The Human Rights Act 1998 came into force in the UK, on 2 October 2000. It gives further effect in
the UK to the fundamental rights and freedoms of the European Convention on Human Rights.
95. Copyright and Related Rights Regulations 2003 SI 2003 No. 2498. Laid before Parliament on 3
October 2003; came into force 31 October 2003. The statutory instrument can be found at
http://www.legislation.hmso.gov.uk/si/si2003/20032498.htm.
96. See Patent Office Consultation Paper on Implementation of Directive 2001/29/EC at
http://www.patent.gov.uk/about/consultations/eccopyright/index.htm.
97. Amending provision s29 deals with research and private study.
98. Amending provision s30 deals with criticism, review and news reporting.
99. S30. – (1A) For the purposes of subsection (1) a work has been made available to the public if it has
been made available by any means, including
(a) the issue of copies to the public;
(b) making the work available by means of an electronic retrieval system;
(c) the rental or lending of copies of the work to the public;
(d) the performance, exhibition, playing or showing of the work in public;
(e) the communication to the public of the work . . .
100. McCartan Turkington Breen v Times Newspapers [2001] 2 AC 277; Attorney-General v Times
Newspapers [2001] 1 WLR 885; Ashworth Hospital Authority v MGN [2001] 1 WLR 515; Interbrew SA v
Financial Times [2002] 1 Lloyd’s Rep 542; Hyde Park Residence v Yelland [2001] CH 143; please note that the
cases cited above are cases where the defendants attempted to rely on Article 10, but not always successfully.
101. PCR Limited v Dow Jones Tele-rate Limited [1998] F.S.R. 170; Service Corporation International Plc
v Channel Four Television Corp. (Ch. D.) [1999] E.M.L.R. 83; Mars UK Limited v Teknowledge Limited
[2000] F.S.R. 138.
102. Laddie, Copyright: Over-strength, Over-Regulated, Over-rated? [1996] EIPR 253 at 258.
103. See Ashdown v Telegraph Group Ltd [2002] E.C.D.R. 32; [2002] R.P.C. 5 at para. 32, vice-chancellor’s judgement. Also see Joseph L., Human Rights versus Copyright: Paddy Ashdown Case (2002)
13(3) Ent. L.R. 72 at 73; Griffiths J., Copyright Law after Ashdown: Time to Deal fairly with the Public [2002]
3 I.P.Q. 240-264.
104. For circumstances where copyright law will trump public interest, see Clayton R. & Tomlinson H., The
Law of Human Rights (2nd edn.) (Oxford, New York: Oxford University Press; 2003), at pp. 266-269.
105. Psychology Press v Flanagan and Another [2002] EWHC 1205.
106. Incal v Turkey (2002) 29 EHRR 449.
107. Marlow v United Kingdom (Decision of 5 December 2000).
108. Nilsen and Johnsen v Norway (2000) 30 EHRR 878.
109. Nikula v Finland (2002) 12 BHRC 519.
110. François Marie Arouet (pen name Voltaire), 1694-1778, (Attributed); originated in Tallentyre S.G.
(Evelyn Beatrice Hall), The Friends of Voltaire (1906).
111. Generally see Betten L. & Grief N., EU Law and Human Rights (London, New York: Longman
Limited; 1998).
112. For more information about Article 10 and ECHR, see generally, Pinto T., The Influence of the
European Convention on Human Rights on Intellectual Property Rights [2002] EIPR 209.
113. Op. cit., Clayton R. & Tomlinson H., at p. 262.
114. Case C-219/91 Johannes Stephamus Wilhelmus Ter Voort (Criminal Proceedings Against) [1992]
E.C.R. I-5485.
115. Case C-353/89 Commission of the European Communities v Kingdom of the Netherlands [1991]
E.C.R. I-4069.
116. T – 377/00, 13 January 2003 (unreported).
117. Case C-74/99 (unreported, 10 September 2002) Opinion of Advocate General, paras. 153-154.
118. Case C-405/98 Konsumentombudsmannen (KO) v Gourmet International Products AB [2001] E.C.R.
I-1795.
119. O.J. 2000 C 364/01.
120. The Charter can be found at http://www.europarl.eu.int/charter
121. See supra pp. 14-15.
122. See supra p. 16.
123. Scrutton, Sir Thomas E., The Laws of Copyright: An Examination of the Principles which Should
Regulate the Literary and Artistic Property in England and Other Countries (London: J. Murray; 1883), at p.
290.
124. Op. cit., Pinto T., at p. 218.
