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Exceptions To Infringement Notes

Law Notes > Intellectual Property 1 (Copyright) Notes

This is an extract of our Exceptions To Infringement document, which we sell as part of our Intellectual Property 1 (Copyright) Notes collection written by the top tier of University Of New South Wales students.

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Exceptions to infringement Fair Dealing

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Fair use as a defence was recognized in the UK and generally developed ad hoc.

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Fair dealing rights eventually came to be understood as a way CR balances the needs of owners and users - this is achieved by reference to specific nominated exceptions to infringement for: o

Research or study;

o

Criticism and review

o

Reporting news;

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Ftpo judicial proceedings or professional advice

o

Parody or satire; and

o

Private copying permitting time/format/space-shifting

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The AU approach to this is rather technical/categorical but a narrow approach is encouraged by Art 13 of TRIPS. However this doesn't prevent adoption of a more flexible approach to determining such cases - for e.g. the US approach which is commonly compared to the AU approach.

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To be a fair dealing in AU the relevant use must meet o

A benchmark requirement of fairness and

o

Fall within one of the categories of exception

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Recent inquiries to expand this have not had much success however the introduction of parody/satire exceptions did follow after extensive media comment

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Relevant provisions:

s 40; s 103C - Fair dealing for purpose of research and study ss 10(2)-(2A) - 'Reasonable portion' ss 41; 103A - Fair dealing ftpo criticism or review ss 41A, 103AA - Fair dealing ftpo parody or satire ss 41, 103B - Fair dealing ftpo reporting news s 10(1) - 'sufficient acknowledgement' s 43, 104 - Reproduction ftpo of judicial proceedings or professional advice s 109A - copying sound recordings for private/domestic use s 43C, s 47J, s 110AA - Format shifting for private use (books + newspapers + periodicals, photographs, fils) s 111 - Recording broadcasts for playing at a more convenient time

General principles: Fairness Pro Sieben Media AG v Carlton UK Television Ltd [1999] FSR 610 Facts: A German TV company claimed the defendants infringed CR by using a 30 second broadcast including an interview and small film of a pregnant British woman (impregnated by fertility treatment with 9 embryos). A gave the exclusive right to broadcast the interview in Germany. The defendants' program was critical of chequebook journalism.

In this case the judge decided that the defendants failed to discharge the onus of proving the extract was included ftpo criticism or review and found the use was not fair in the circumstances.

Robert Walker LJ:

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Fair dealing is a question of fact and degree (Hubbard v Vosper) or of fact and impression (Beloff v Pressdram) o

The degree to which the challenged use competes with exploitation of CR by the CRO is important

o

The extent of the use is relevant but its relevance depends on the circumstances

o

The fact that the criticism is strongly expressed and unbalanced does not disentitle from the defenceo

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A distinction was drawn in Time Warner v Channel 4 between a programme incorporating the infringing material as a genuine piece of criticism or review or something else like an attempt to dress up infringement of CR in the guise of criticism to profit unfairly from it

The court needn't consider from the perspective of the infringer whether it was 'ftpo criticsm or review' and should not countenance a sincere belief, however misguided.

'Criticism or review' and 'reporting current events' are expressions of wide and definite scope and should be interpreted liberally o

Though the boundaries are unknown, if a derivative use of CR material do come close to those boundaries, the less likely they are to make good the fair dealing defence

Fairness and the public interest: unpublished works The genuineness of intention of the defendant in serving a permitted purpose affects 'fairness' but dealings with unpublished work are likely to always be considered as unfair

Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 The case concerned an interlocutory application for continuation of an injunction to restrain the publishing of certain documents of the plaintiff in certain books, the contents of which were to be serialized in The Age. Mason J set out the facts:

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The plaintiff in this case became aware that the books were to be published and contents serialized shortly before it happened, becoming informed through the book's front page and dust jacket that the book contained documents on Australian defence policy and unpublished government 'memoranda, assessments, briefings and cables' relating to various international events (East Timor crisis, the presence of the Society Navy in the Indian Ocean etc.)

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The book's contents

o

The book didn't deal with anything to do with military technology etc. and had no value to hostile foreign powers. Further, the appreciations made of Australia's strategic situation and outlook on SEA are based on information generally known

o

The book's consisted of 437 pages - 9 of which were biographical notes, no more than 50 on observation/comments and the remainder was just government documents. Most of the commentary was by way of background which set up contents. For e.g. extracted at 287 of the TB is part of an introduction which posits a number of questions and viewpoints. The purpose of the publication is expressed to be to allow debate between these two standpoints

The plaintiff's case is that it is the CRO in most of the documents in the book, they were classified documents which contain confidential information which if disclosed would prejudice AU relations with other countries, and further tha tit hadn't authorized or consented to publication.

[Claim under s 79] A claim was also made under s 79 of the Crimes Act but the application for injunctive relief under this section was rejected on the basis that the embarrassment to foreign relations flowing was not sufficient to justify protection of the information through injunctive relief.

Infringement of copyright His Honour began with the proposition that the publication of these books would infringe the plaintiff's CR unless a defence could be established under s 41 and s 42.

Defence under s 41

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[Criticism or review] To bring themselves within s 41 the defendants must show that

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[Q1] What they proposed to publish was a 'fair dealing' with the plaintiff's documents

'for the purpose of critic or review'

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[Q2] And that a 'sufficient acknowledgement of the work was made

Question 1

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His honour seemed to countenance the suggestion that s 41 doesn't provide a defence in the case of unpublished literary works as it would be unfair that it should, without consent be the subject of public criticism or review

o

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This is s.t. the qualification that if the literary work though not published to the world at large, was circulated to such a wide circle (e.g. company's shareholders) as to make it a fair dealing (Hubbard v Vosper)

The absence of consent, express or implied, or such circulation by the author of an unpublished literary work (ULW) as to justify criticism is an important factor in determining whether or not there is a fair dealing

? There was no such consent by the plaintiff here - the defendants knew the plaintiff objected to the publication and that the documents were leaked without the plaintff's authority.

? There is also a difficulty in saying a publication of leaked documents, which couldn't without the leak have ever been published, is a fair dealing with unpublished work

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[Alternative approach?] Another possible approach is that dealing with unpublished work may be considered fair as against a government (cf. private individual) because it promotes public knowledge and discussion. His honour declined to proceed on this footing on an interlocutory application

? Another significant hurdle was that the attraction for readers was being able to read hitherto unpublished government documents. The commentary was only significant in one of the three instalments of the work and seems to be designed just to put the documents into an appropriate setting.

o

If there was a criticism or review of the documents, it was merely a veneer, setting off what is essentially a publication of the plaintiff's documents

Question 2

? His honour dismissed this quite quickly - though there wasn't an express acknowledgement of the plaintiff's CR, the documents were identified as 'government documents'. Further "in reality the plaintiff's complaint is that there has been an excessive acknowledgement of the work"

Defence under s 42

? [Fair dealing ftpo the reporting of news in a newspaper + sufficient acknowledgement]
His honour opined that the arguments made in this regard never went beyond bold assertions and a stern denial that what the defendants tried to publish was 'for the purpose of ...the reporting of news' [i.e. both sides had shit arguments]

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News, despite its context of 'the reporting of news' isn't restricted to current events.

? But the real problem here was again bringing their use into the concept of a 'fair dealing'

CL Defence of Public Interest

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This was acknowledged in Fraser v Evans and Beloff v Pressdam

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But such a defence is limited and scope

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What it does is make legitimate the publication of confidential information or material in which CR subsists so as to protect the community from destruction, damage or harm.

o

It applies to disclosures of things done in breach of national security, the law (including fraud) and also to disclosure of matters involving a danger to the public

? To apply the defence to a case where it is suggested that the advice given by Australian public servants and diplomats should be ventilated to expose what is alleged to be a cynical pursuit of expedient goals would break new grounds

? The fact that the plaintiff doesn't ordinarily exploit for commercial advantage, CR in documents is irrelevant - this doesn't give them title to infringe CR.

? The real point is that the plaintiff ownership of CR entitles it to prevent others from copying documents, whether it proposes to publish them or not,

? The essence of CR in unpublished work is that it enables the owner to prevent others publishing - damages will rarely be an adequate remedy to protect infringement of this right

Fairness, industry convention and implied license

* If there is an established convention about what 'fair media practice' there will be a standard for courts to evaluate in terms of its implications

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However, 'industry convention' isn't a defence to infringement - "what commercial participants in any given industry think is fair is unlikely to be necessarily determinative of the issue....fair dealing in news reporting is a question of judgment

and impression which takes into account the public interest nherent in s 103B as a law of the parliament (Telstra Corp v Permier Media Group)

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Industry attitude provides an unreliable reference where there are significant commercial rivalries etc.

Research or study, criticism or review, and reporting the news De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292 Facts: Jeffres conducted a press clipping service, providing copies of newspaper articles to subscribers on a commercial basis. They argued that the reproductions constituted fair dealings ftpo of research or study, criticism and review and reporting the news. The particular work for this claim was a literary review written by De Garis.

Beaumont J made extensive use of the Macquarie Dictionary definitions in order to flesh out the statutory criterion

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In determining whether a dealing by way of copying the whole or part of the work constitutes a fair dealing, regard shall be had to:

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The purpose and character of the dealing

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The nature of the work

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The possibility of obtaining the work within a reasonable time at an ordinary commercial price

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The effect of dealing upon the potential market for, or value of, the work; and

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In the case where part only of the work is copied - the amount and substantiality of that part in relation to the whole work (s 40(2)

S 40 - research or study:

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A fair dealing with a literary work by way of copying, ftpo research or study, of not more htan a reasonable portion of the work, shall be taken to be a fair dealing (s 40(3)).

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Research may be defined as 'diligent and systematic enquiry or investigation into a subject in order to discover facts or principles

? Jeffres' dealings with the work wasn't done for research. Even though retrieving material can be complicated - it doesn't mean it is research. The purpose here was a purely commercial one (supplying photocopies of published materials for a fee). o

The service was in the nature of an information audit and should be distinguished from what 'research' ftpo of s 41

? The fact that the customers themselves were engaged in research would not change the

matter

? [Argument] A dealing ftpo of private study will be fair whether it is the private study of one's own (Jeffres) or someone else's (the customers) o

No. s 6(1) authorises what would be an infringement if one is engaged in private study/research. The authors here were not. This conclusion is supported by UOLP v University Tutorial Press which said that the mere republication of a work was not a fair dealing just because it was intended to be used ftpo of study.*

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In that case they said neither would it be if someone just took an exam paper on advanced math and instead of providing solutions just categorized the Qs into 'easy', 'troublesome', 'difficult'

Study includes

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The application of the mind to the acquisition of knowledge, as by reading, investigation or reflection

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The cultivation of a particular branch of learning - e.g. science/art

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A particular course of effort to acquire knowledge

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A thorough examination and analysis of a particular subject

Further, a dichtomoy exists between 'the process of gathering facts' on the one hand and conducting a course of study or research on the other

? Here, even if study were the purpose for which a subscriber retained the services of Jeffres, could not be the 'study' ftpo of Jeffres Conclusion: s 40 has no application in this case

S 41 - Fair dealing ftpo of criticism or review
[Here you need a dealing ftpo of criticism or review + sufficient acknowledgement. His honour noted again that a work cannot be published under a pretence of quotation]

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Criticism includes

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The act or art of analysing and judging the quality of a literary or artistic work

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The act of passing judgment as to the merits of something

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A critical comment, article or essay; a critique

Review includes

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