Fair Dealing Exceptions in UK Copyright Law

Fair Dealing - UK - Copyright Law
(Photo credits: PunkJr)

Fair dealing is one of the permitted uses in UK Copyright Law that allow a person to carry out certain acts that would have otherwise been considered as an infringement if it wasn’t for the exceptions of fair dealing. The fair dealing exceptions are found in Sections 29 and 30 of the CDPA 1998.

In the UK, there are three fair dealing exceptions provided by the CDPA:

  1. Fair dealing for the purpose of research or private study. (Section 29(1))
  2. Fair dealing for the purpose of criticism or review. (Section 30(1))
  3. Fair dealing for the purpose of reporting current events. (Section 30(2))

It must be noted that the fair dealing exceptions in the UK are very specific exceptions that relate only to the fair use of copyright works ONLY for the specific purposes explicitly mentioned in the CDPA. Unlike the US, where the fair use exception is general exception which the court can hold as a defence for the use of the copyright for ANY purpose as long as the use is fair. The same concept does not exist in UK law as fair dealing only applies to the specific purposes mentioned (Bently). There are obviously other exceptions for other purposes that do not involve the fair dealing concept. These will be discussed in future posts.

The purposes mentioned earlier can operate as a defence for copyright infringement only in circumstances where the copying was fair. The court has established that this is a question of degree and impression. A number of factors may be taken into consideration depending on the facts of the case and the work in question. Such factors include whether or not the work is published or unpublished, how the work was obtained, the amount copied, the use made of the work, the movies for this copying, the consequences to the copying, whether or not the same purpose could be achieved through other methods, and whether or not the original author was acknowledged.

In the case of Hubbard v Vospar [1972] 2 QB 84, Lord Denning said:

“It is impossible to define what is fair dealing. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide.”

There are also additional requirements for each purpose. For fair dealing for the purpose of research or private study, the purpose must be non-commercial research or private study.  The term ‘private study’ is defined in Section 178 and it doesn’t include studying that involves a direct or indirect commercial purpose. The defence only applies when the work in question is literary, dramatic, musical, or artistic. It also applies to typographical formats of published works. The exception does not apply to broadcasts, sound recordings or film. The defence will also only apply where there is sufficient acknowledgment.

Fair dealing for the purpose of criticism or review can only be used as a successful exception is the copying was made in relation to a work that is published in the sense that it was previously made available to the public. The section of the work copied must be directly relevant to the review. The case of Time Warner Entertainment Ltd v Channel 4 Television Corporation Plc illustrated that this test is not very onerous. The case involved the use of extracts from a film amounting to 12 minutes or 8% of the film in a 30 minute show. The court held that there is no required format for the program to be held as one relating to a review, that it can extent to ideas in the work, and its social and moral consequences. (Another case is Pro Sieban Media A.G. v Carlton U.K. Television Ltd).

The defence recognizes the value of criticism in society and acknowledges the fact that a person needs to copy some of the work to critique it. This defence also prevents authors from using copyright to control the reviews of their work and what parts of the work may or may not be used in the review. (Bently)

The final fair dealing defence is fair dealing for the purpose of reporting current events. This defence can be used with any work,  except photographs, as long as sufficient acknowledgment is made. No acknowledgment is required for sound recording, film, or broadcast when this would be impossible or impractical. In the case of Newspaper Licensing Agency Ltd v Marks & Spencer plc (1999), Lightman J stated that the this defence aims to achieve a balance between the protection of the rights of authors and the wider public interest which includes free speech, he consequently took the view that reporting of current events was a wide exception of indefinite scope that should be interpreted liberally (Murdie, Intellectual Property Law, page 67). {However, in this actual case, the redistribution of photocopied snippets of newspapers went beyond the exception}.

Copyright Exceptions in Oman

Official Gazette

The exceptions to copyright vary from one country to another. In Oman, the permitted uses of copyright works are expressed in Chapter 5 of Royal Decree 65/2008.

First of all, unlike the USA, and more like the UK, there is no general exception of fair use in Oman. The list of copyright exceptions is an exhaustive list found in Article 20 of the Decree.

All of the exceptions of copyright in Oman require acknowledging the author and that the use does not impact on the normal use of the works or unreasonably harms the interests of the author.

There are seven exception in Article 20:

  1. Copying segments of a work available to the public for purposes of review, illustration, or criticism.
  2. Using the work in the family domain or for students inside an educational institute for purposes of education. The use must not be directly or indirectly paid-for.
  3. Creating a single copy of the work for archiving purposes by the designated authorities, OR by educational institutes as long as (a) copying is made for a published article or a short work for fulfilling the needs of an individual researcher, OR (b) copying is made for the purpose of protecting the original copy of the work or replacing a defective copy.
  4. Copying or broadcasting segments from articles published in daily newspapers or periodical about current events as long as original publisher has no exclusive right over the time of publishing, and the copying was made by the press.
  5. Copyright program related exceptions: (1) copying for the necessary operation of the program, (2) creating a single backup copy in case the original is damaged or lost, (3) creating a copy for the purposes of porting the program to another system or language as long as the ported copy is used by the owner of the original copy.
  6. The public performance of a dramatic or musical work in religious events or face to face teaching inside educational institutes. (Both cases must no be made for direct or indirect gain).
  7. Creating a temporary copying by broadcasting agencies for use in their programs as long as they have the right to broadcast and as long as the temporary copy is destroyed after a period of 6 months.

The exceptions in Omani law are very badly drafted and are not very clear. The 4th exception on reporting of current events does not make sense because it indicates that you can only copy as long as the person you are copying from has no right to publish. The exception is also only available for ‘the press’, which is not defined, but is very unlikely to extent to bloggers or those who contribute on online discussion boards. The exceptions also do not talk about copying photographs or videos for the purposes of reporting current events and only talks about ‘segments of articles’ – which in Arabic means ‘text’ and does not necessarily include non-textual content.

Copyright Exceptions

Copyright Exceptions

Just the same way the grant of copyright is justified as a form of reward, incentive, and a natural right of those who create original works. The public has the right for a number of different copyright exceptions which allow a person to copy protected works without acquiring the owner of the copyright work without infringing copyright.

The scope and extent of these exceptions vary. Bently and Sherman state that this is a reflection of the variety of purposes which these exceptions serve.

Some exceptions to copyright are meant to promote and encourage the creation of new original works, especially where copying is not identical and is transformative.

Other exceptions are established to solve possible market failures that could arise in situations where the use is too nominal leading the cost of any transaction to establish an agreement between the copyright owner and the person wishing to use the work uneconomical. This can be seen in the exceptions related to subtitling (s74 CDPA) and recording of broadcast by educational institutions (s35 CDPA).

Copyright exceptions are also needed to protect other non-copyright public interests such as privacy (e.g. private study (s29)) and freedom of expression (e.g. criticism and review).

They are also used to prevent monopolies of intellectual works from being abused. (e.g. decompilation of computer programs s50B and retransmission of cable programs s73).

These exceptions are necessary for preserving material of cultural value (e.g. exceptions relating to folksongs s61 and archiving exceptions s75).

Finally, some exceptions encourages collecting licenses. (e.g. compulsory licensing of lending of works s66).

What is DRM?

drm
(Photo credits: Darwin Bell)

DRM (Digital Rights Management) is wide term used to indetinfy a number of technologies used by copyright content owners to restrict the way their works are accessed and copied by consumers. This allows content owner to control how people can install a computer program, view an online video, or listen to digital audio file.

There are various forms of DRM, but all of them involve some sort of digital padlock that requires use of an authentical system to allow the end user to access the file.

Early devices that allowed consumers to copy analogue media led to a gradual degradation in quality and had to be physically transferred between consumers. However,  digitalization of media made it possible to create perfect copies with ease.  The increase of bandwidth and speed at which data can be transferred over the internet also contributed in making it very easy to exchange digital media between end users in violation of copyright. DRM was introduced to enforce copyright terms by using technology to restrict unauthorized access.

DRM can be used to simply prevent the actual act of copying, for example DVDs, or will prevent the playback of a digital file, even if copied, if the user attempting to play the file is not authorized to play it as the case is in most digitally downloaded media files.

The first widely used DRM system was the Content Scrambling System used to prevent the copying of DVD. The DVD consortium developed the technology and only authorized hardware manufacturers to use the technology as long as they do not include features that facilitate copying.

Other widely used DRM technologies include Apple’s FairPlay which is used to control the playback of videos and applications sold on the iTunes Store; the Adobe’s eBook Reader used to control the accessability of eBooks; and Microsoft’s Windows Media DRM for music, films, and books.

Most jurisdictions now grant a legal protection to DRM prohibiting its circumventions. This protection is meant to support the copyright legislation, but it is not about the protection of the copyright work, but the protection of the technologies that are used by copyright holder.

In the EU, DRM is protected by Article 6 of the Information Society Directive (Directive 2001/29/EC). Article 6(1) of the directive requires member states to provide adequate legal protection against the cirumvention of technological protection measures. It also requires providing adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services for the circumvention of these technical protecition measures.

The emphasis on actions that enable circumvention (e.g. manufacture and import) as opposed to actual circumvention suggests that the provisions are meant to be used against those in the business of enabling circumventions instead of actual consumers.

There are no general exceptions that allow circumventions by consumers to allow them to use permitted copyright exceptions, such as fair dealing, and instead the Directive introduces in Article 6(4) a system by which rightholders are encouraged to use voluntary measures to make available to beneficiaries of certain exceptions the means to benefit from that exceptions. In the case of failure by content providers to make available the means necessary for these exceptions, the member states should take appropriate measures to ensure that they do.

Article 6(4) is not available for all permitted copyright exception, it can only be used with specifically only for reporgraphic copying, copying by libraries, educational establishments or museums, ephemeral recording, broadcast by non-commercial social institutes, copying for illustration for teaching or scientific research, copying for disabled people, copying for public security, parliamentory or judicial proceeding.

In the UK the provisions for protecting DRM are in the Copyright, Design and Patent Act 1998.

Introduction to Copyright

Copyright
(Image credits: PungoM)

Copyright is a right granted by the state for creators of original qualifying works to prevent others from carrying out certain activities in relation to these works. Copyright does not protect the idea behind created works, but the expression of that idea in the work.

In the United Kingdom Copyright is regulated by the Copyright, Designs and Patents Act 1988. In Oman, copyright is regulated by the Copyright Law 65/2008. The UK and Oman are both members of the Berne Convention, which grants requires members to grant copyright protection automatically upon the creation of the work without requiring the author to fulfill any formalities such as registration or deposit. Almost all countries in the world are members of the Berne Convention. Any work created in any of these members or by a national of any of these members will have his work protected in all other member states.

This means that ANY thing you create, like writing a blog post or taking a photograph using your mobile phone is protected by copyright. The period for copyright protection for most works extends for the life of the author plus 70 years after his death.

Copyright is NOT grant the author an absolute monopoly over the use of copyright work. It only regulates a number of activities related to the work, in the UK, these include copying (whether in whole or in substantial amount), issuing copies, performing in public, broadcasting, making adaptations (including translation), and renting out certain works such as computer programs, films, and sound recordings. Carrying out any of the activities cannot be legitimately done without acquiring the conset of the copyright owner. Though originally meant to be an exhaustive list of activities, as we consume today most of our media electornically, any use of digital works requires creating a copy of the work temporary or permenantly on the computer to process and consume that work. However, the law provides an exception for using digital media to allow users to copy works on their computer as long as they do it to be able to carry out the intended use of the copyright work.

A further limitation to the control of the author of his work is imposed through a number of limitations for permitted uses provided for in the law. In the UK these include fair dealing for purposes of research and private study; and fair dealing for the purposes of criticism, review, and news reporting (provided that sufficient acknowledgement of the work is made); incidental inclusion of the work in others; activities done for instruction or examination; the creation of anthologies for educational use; playing, showing or performing in an educational establishment; recording of broadcasts by educational establishments; reprographic copying that does not exceed 1% of the work; copying by libraries and archives for purposes of preservation;  copying for purposes of public administration (e.g. by courts); and a number of lawful uses of computer programs and databases.

The existence of copyright law is justified on a number of ethical and economic grounds. Many believe that ethically an author of any work has a natural right or a human right over the product of his labour. Economically, it is a believed that the grant of this protection operates an incentive which is capable of driving people to create more. It is also essential to have copyright to protect the investment made in the creation of works that couldn’t be funded if it wasn’t for the ability to have these works exclusively exhausted through the protection of copyright (competitors easily copy-market failure?). It is also believed that it is fair to reward authors for the effort they expended in creating a work and then giving it to the public.

The Pirate Bay Found Guilty

The Pirate Bay Found Guilty - Trial

The Swedesh Local is reporting that the ruling of the court in the trial of the Pirate Bay has just came out: The Pirate Bay is guilty of the offense of “promoting other people’s infringements of copyright laws”. The Pirate Bay was ordered to pay $3.5 million in damages and each of the four defendants were sentenced to one year in prison.

The actual text of the judgement is not available in English yet. The defendants are also expected to appeal.

The Problem with DRM

Digital Rights Management or DRM are tools used by distributors of digital media to ensure to control the way in which their music, video, and other digital goods are used and distributed. The majority of countries, including Oman, make it a criminal offense to disable DRM, to manufacture or import tools that disable DRM, or to share information to enable others to disable DRM.

Though not strictly speaking an actual substance of copyright, DRM offences are placed in copyright legislation due to their usage in that field. Content distributors use DRM to enforce their copyright by locking down their digital goods. For example, when you download a ringtone from your mobile operator service directly, that ringtone will be equipped with DRM that will not allow you to forward this ringtone to anybody else. If you purchase a DVD, you will not be able to create a copy of it using any legal software in the market. If you rent a video from iTunes, you will not be able to copy that video onto any other machine and you will have a very limited time to watch it after which the video will stop working.

Due to the ease at which copyright work can be copied and distributed over the Internet, one of the industry’s responses to enforce their copyright was the introduction of newer and newer DRM technologies. By using DRM content owners can have almost complete control over the use of the copyright work and will ensure that it is not copied or duplicated easy.

DRM has also contributed to the creation of new business models and services that would not have existed otherwise, for example, it would be impossible to have a legally cheap music rental services such as Napster if it wasn’t for DRM.

The available of DRM also helps the regulation of content through different territories for the protection of children and society when moral values and tolerance of sexual and violent content varies from one distinction to the other as DRM makes it difficult to play American movies in Europe).

However, for the greatest part, most people think that DRM is a bad thing. Starting from the top, there is no evidence that using DRM actually reduces piracy. Steve Jobs himself said in 2007 and DRM does not work. The nature of digital goods makes it impossible to lock down the ability to copy a work because by definition that data must be unlocked to be used and therefore it will always be possible to record and copy that data, whether it digital or analogue format, and then redistribute it. DRM targets the wrong people, people who will pay for it are not the pirates. It is demeaning because it makes every single one of us a suspect of copyright infringement.

A more problematic area of DRM is that it does not only stop illegal copying, but legal copying as well. Copyright is not an absolute right, but one which is supposed to balance the interests of society against those of the author. The collection of these legal copying instances are called in the US “Fair Use” and in Europe “Fair Dealing”. In Oman, these are called “Free Uses” and are specified in Article 20 of the Copyright Law 65/2008. A simple example of these rights are the right to make a single backup copy under Article 20(5). When DRM is used to protect a copyright work, then breaking the protection to create a copy would constitute a criminal offense regardless of whether the DRM was removed to create a legitimate backup copy.

This example could also be illustrated in the case of DVD playback on the Linux OS, no Linux OS has the license to play DVD movies on it, but Article 20(5) allows the modification of a copyright work in order to make a work compatible with another operating system, however, due to the fact that DVD movies are protected by CSS DRM, it will not be possible to make use the format shifting exception to play the DVD on Linux and any attempt to create a tool to play DVDs on Linux, or use one, would constitute a criminal offense under Article 40 of the Copyright Law.

That basically renders all the exceptions of copyright protection pointless as the majority of copyright works can now be DRMed, whether there was or wasn’t a point for using this protection. That obviously cannot be right, as copyright was never meant to grant such a power to content makers to control the way we use content we legally purchased. No legislator anywhere made the conscious decision to introduce such stringent rules, but this change in the way copyright operates was a result in the change of technology, for which copyright law was modified in the WRONG way “adapt” to it.

Not only does DRM not allow for free use exceptions, but it does not take regard of even works in the public domain for which no copyright subsists at all as a protection for DRM is granted whether or not the content it actually protects is in copyright or not.

DRM also poses a number of privacy issues, as at some instances personal data, such as names and credit card details, might be required to be submitted before the digital product is consumed. DRM can also be used to track the way and frequency at which the product is used. DRM proved to also be a possible cause of serious security risk to user computers as was the case in the Sony rootkit music CD fiasco.

The complex structure of today’s market and the way different tools and required to consume media, all make it possible for DRM to be used to affect the secondary market, as content providers may control the way products are played (e.g. DVDs). This could have an impact on competition and may stifle innovation as new technologies cannot be introduced if all current media is locked down to a specific DRM that cannot be legally broken or adapted without the permission of the owner.

The problems with DRM are international, the majority of modern copyright legislation including the US, Japan, and UK all have similar provisions against the circumvention of DRM. The laws in Oman are just as bad, especially as the DRM provisions were introduced in response to comply with the requirements of Article 15.4 of the Free Trade Agreement with the US. Any attempt to remove or amend the bad DRM provisions in Oman could render us in breach of our obligations under the FTA. Our only solace is that the situation in the US (and all other countries that signed an FTA with the US) is just as bad, but that does not really solve the problem.

Luckily, more and more companies seem to know that DRM is not the solution to the problem, iTunes announced a couple of months ago that it will make its entire music catalog without DRM, Amazon has always been so since the day it launched its online music store.

But now having DRM free content seems like a privilege and not a right. An international movement would have take place for the law to change that position.

Al Jazeera Publishes Videos Under Creative Commons License

Al Jazeera Goes Creative Commons

Al Jazeera announced last week the launch of a creative commons repository to host videos of the Gaza crises  under a Creative Commons Attribution License. This is a big win for the Creative Commons movement as Al Jazeera is the first major broadcaster to license any of its content under Creative Commons.

This announcement means that bloggers, competing broadcasters and anybody else can use the videos of Al Jazeera for free as long as they simply mention that original video was made by Al Jazeera. This would have not been possible otherwise due to copyright protection of the work. By using the CC Attribution License Al Jazeera explicitly permits all to use the licensed copyright work in any way they please, whether commercial or not, as long as they simply attribute the source.

I will hopefully write more about Creative Commons in the future. This is a nonprofit corporation that aims to create the a legal framework for individuals to share the creative work of each other and build upon it.