Introduction
A copyright refers to the legal security that is entitled to the owners of an original piece of work against unlawful abuse of their work. A copyright, should serve to satisfy a society’s social goals and values. It should enhance the formation, spread and distribution of data and information facilitating public utilization as well as access.
In the contemporary society, the postulations of copyright should be reassessed. Examples of materials that can be covered by the copyright legislation include original dramatic, literary, sound recordings video, artistic works, broadcasts, electronic works; books.
The UK legislation which is currently in use is the Copyright, Designs and Patents Act 1988 (CDPA). The act was consented in 1988 and came into force in 1989 and has since been complemented by several statutory accords which include the international laws as well as the EU legislation (Athanasekou 2000).
The United Kingdom copyright law offers exclusive rights which facilitate the creation of innovative works by the authors, performers as well as producers. The Act describes the legislative basis of the copyright law which includes performing rights in UK, which was earlier directed by the Copyright Act 1956.
The CDPA facilitates the UK law to be in accordance with the Berne Convention for safeguarding Literary and creative works. The Act also entails an unregistered design right and encloses several modifications to the United Kingdom law on Registered Designs and copyrights.
In essence, the 1988 Act and amendment establishes that the validity of the copyright goes for about 70 years after the inventor dies or 70 years following the adaption of a particular work.
The Act stipulates the various kinds of work it protects eradicating unlimited handling of original work. These works include broadcasts, original artistic works, music, cable programs, typographical arrangements of published editions, sound recordings and videos, fictional and theatrical works which should be documented in print or otherwise (CDPA section 1 (1) (a) (b) (c)).
Other requirements needed before a particular work can attract Copyright Protection include; the publication requirement, the place of transmission requirement and the author requirement. The Act covers England but has been amended to include Wales, Northern Ireland, Hong Kong, Scotland, Guernsey as well as Isle of Man.
This notwithstanding, the Act can also apply to other member States of the EEC or even to other countries which are Convention countries. For instance, the following former dependent territories also qualify for copyright protection under the Act: Dominica, Antigua, Gambia, Guyana, Grenada, Jamaica, St. Lucia, Lesotho, Tuvalu, Swaziland and Kiribati. All other nations whose works were eligible for the UK copyright under the Imperial Copyright Act of 1911, or the 1956 Act are also eligible under this Act.
The second part of the Act entails moral rights and performers’ rights in accordance to the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961.
These rights have been largely extended by the transposition of European Union directives and by the application of the WIPO Performances and Phonograms Treaty. The Copyright, Designs and Patents Act stipulates that, an original performer is entitled to approve the adoption of his/her video footage. Using, importing or distributing someone’s work, without his/her consent or recognition violates the owner’s rights.
The Fair Dealing Defence
According to the provisions stipulated in the fair dealings, one is not legally responsible for copyright infringement if his/her actions amounts to fair dealings for the reason of analysis, research, private study, appraisal or for the intention of reporting the latest proceedings. The provisions stipulated in the fair dealings are very clear that the UK courts are able to make quick judgments on cases that raise the question of fairness.
In case of any infringement, the Act specifies the various remedies that should be applied. These remedies include; civil remedies and criminal remedies. Under civil remedies, the Act permits the right to; seize infringing copies, damages, injunctions against service providers and delivery up for infringing articles. In case a particular dealing is found within one of the purposes stipulated in the CDPA, its fairness should be revealed.
On the other hand, CDPA does not clearly specify what is fair and what is not. As a matter of fact, it is usually a matter of extent and notion. Nonetheless it is necessary to borrow some guidance from Case Law which has formulated aspects which are regarded appropriate to establish fairness.
The significance given to each one of these aspects depends on the situation affecting the infringing act and thus may differ depending on a particular case. These aspects include the quality and amount of content drawn from copyrighted work, the use of the work (if the work is being used for financial benefits or not) and the intention of the infringer.
However, these rights are countered by provisions that allow limited use of copyrighted work without necessitating the owner’s consent.
The exemptions to copyright violation entailed in the act authorize that some actions do not violate the rights of the owner. The fair dealings provisions provide some defences to copyright infringement. These defences are only valid in acts that conform to the purposes of a supposedly infringing act explicitly defined in the CDPA.
The limitedness of the fair dealings is the main reason why The Copyright, Designs and Patents Act is considered not fit for its purpose. It is very necessary that CDPA adopts a more universal policy such as that of the fair use other than that one of the fair dealing as the fair use is not limited to certain purposes of the supposedly violation Act.
As a matter of fact, in this era of increased economic specialization, globalization and digital technology the Copyright, Designs and Patents Act may not be fit for the purpose. The provisions associated with the fair dealings are of very low flexibility.
Problems Associated With the CDPA
The Internet as Borderless Network
The contemporary society has witnessed a wide usage of the internet, a global network of information. Internet usage has posed a great challenge to the applicability of the CDPA. This is because it entails a borderless network and hence limits the CDPA from responding to internet-related disputes.
Several infringers fail to conform to the UK Copyright law as the legislation is not applicable in a variety of countries around the world besides those bound by international IP accord. This demonstrates the predicament facing the CDPA as it is made unsuccessful by the global character of the web which challenges jurisdiction (Rubin 2010).
With the increased internet usage, the fair dealings provisions are not relevant to Google’s Book. This is because Google equips its database with volumes of books alongside other reading materials from the libraries it collaborates with. Whenever someone enters a search inquiry into Google’s Book Search, he/she finds the books alongside other reading materials that are accumulated in the digital database.
In a reply to the search inquiry, one can manage to completely access a wide range of materials but only some few pages or sections are covered by the copyright. There are two issues regarding the Google’s Book search that raise the eyebrows in respect to the copyright. In most cases, Google reproduces the entire content of copyrighted materials into its search database.
Secondly, in reply to the search question, Google facilitates complete access in a number of fragments of copyrighted materials. These two issues fall within the range of the policy of fair use found in the US copyright Law. As a matter of fact, there are several cases filed against Google in several US courts.
Nevertheless, under the UK copyright law, the Google Book search cannot satisfy any of the purposes given in the fair dealing provisions. Since the fair dealing defences would not apply, Google’s Book search would infringe on the CDPA. As a matter of fact, this challenge led to the amendment of the CDPA in an attempt to shield copyrighted work in the internet. However this attempt was ineffective to a large extent.
Abstract Restrictions
The other challenge facing the CDPA on matters affecting the infringement of copyrighted materials on the internet is the abstract restrictions and exemptions represented in the act to handle the internet. In reality, the internet integrates multimedia materials among other graphic constituents which are all included in the internet. All these components can be copyrighted works, reprocessed and republished on the internet (Passman 2006).
The Simplicity Involved in Electronic Copying
Moreover, the effortlessness involved in electronic copying poses serious realistic challenges in enforcing the legal concept of copyright within the CDPA. This is mainly because copyright permits the owner of a given material to offer approved replications of scholarly work to distributors.
Short-term replication in theory fulfills the key infringement of satisfactory uses stipulated under CDPA. This indicates that the idea of copyright infringement stipulated under CDPA is indeed rigid and outdated especially when handling the digital materials.
A certain case in UK which applied the CDPA legislation with regards to copyright infringement on internet, whose attention was on hyperlinks, was filed against a supplier of news through the internet.
In view of that case, it came out that, the links infringed copyright, given that they represented the news exactly as they got them from captions of their competitor’s site. It was argued that, the hyperlinked captions were infringing on the literary content of the rival’s site (Holyoak & Torremans 1988).
Inflexibility of the Fair Dealing Defences in the CDPA
The fair dealing provisions in CDPA are more limiting in their capacity and also in their applicability. This is because they are only relevant in definite and predetermined purposes. Furthermore, the CDPA does not embrace dealings that involve films, broadcast and sound recording.
For this reason it would be impossible for a scholar to reproduce a small portion of a sound recording devoid of infringing the copyrighted material even though he/she has not infringed the original musical piece with this replication.
Thus, the restrictive capacity of the CDPA does not suitably cater for the escalating significance of non-textual media for research and learning. As a matter of fact, several researchers condemn the inflexibility and restrictiveness of the fair dealings provisions.
According to them, these provisions leave very little room for the amendment of the law to potential technological advancement (Stokes 2001). A good example can be seen in format shifting, (format shifting refers to a situation where someone can alter the design of a copyrighted work by the use of technical means) where someone reproduces a personal film into a digital system for private use.
The CDPA does not have a provision which permits copying for individual use and thus, format shifting of copyright work is illegal as it translates to infringement of copyright under the CDPA. This position is outdated with the ever-changing consumer attitudes as well as the constant technological advancement (Klang & Murray 2004).
For this reason, the challenges posed by the fair dealings under the CDPA demonstrate that, it is impossible to predict new uses to which new technologies may give rise.
The fair dealing provisions that only consent to a limited number of purposes of an act are not inclusive in their coverage and may therefore be biased against the digital technology and the dynamism of the information sector.
Moreover, even though the legislature can try to keep the law alongside modern growth, the legal procedures involved can last for a very long time and the law is therefore likely to remain frozen and continues being outdated for several years before its modification. However, this does not mean that the legislative will continue being obsolete after being modified as a result of the uses that have developed over time (Johnson & Post 1996).
This notwithstanding, these challenges have partially been addressed through the EU’s Information Society Directive, which is applied into domestic legislature among affiliate nations.
The EU Copyright Directive endeavors to synchronize the authorized right of replicating and communication to the public within the member states with regards to protection of databases, e-commerce as well as online digital materials.
The EU Copyright Directive has undoubtedly been devised with the internet in consideration, and offers the restricted replication rights approving or barring short-term copying which are fundamental to the technical procedure (Deacon, Lipton, Pinker & 2010).
On the other hand, the other alternative is the fair use policy which is mainly used in US. This option necessitates the significance of fair use of copyrighted material for purposes such as commentaries, news reporting, appraisals, research, teaching and scholarships.
This provision stipulates that the listed purposes do not entail the infringement of copyright. In order to determine if a particular use is fair or not, a judge should consider four aspects as follows; the purpose of the use, the category of the copyrighted material, the consequence of the use on the prospective market for copyrighted material, the quantity and the significance of the content extracted from the copyrighted material.
These aspects are not exclusive and they serve as guiding principles but not limiting regulations. Since other concerns can also be allowed, courts are at liberty to take non-statutory aspects into consideration each time they appear pertinent. Therefore, the significance associated to a particular aspect depends on the details of a given case.
The fair use exemption is an extensive and inclusive policy. The policy involves a fair decree of reason. As a matter of fact, the fair use do not have a specific definition as any case raising the matter ought to be evaluated depending on its explicit details.
The courts should be at liberty to adapt this principle when handling specific issues with regards to the type of each case. For that reason, the number of uses is indefinite as an action for any purpose is considered to be fair use in case it meets the provisions of fairness (Bleakley, Powell & Eneberi 2010).
In conclusion, it is evident that there are abstract and realistic challenges facing the CDPA with regards to internet infringement among many other issues, which makes it unfit for the purpose. The UK government should consider amending the Act to expand the flexibility of the existing provisions through creating more acceptable purposes such as caricatures and by introducing a restricted confidential copying exception.
The fair dealing should be more inclusive just like in fair use. The amendment should also be accompanied by a transformation of judicial attitudes in regards to the understanding of copyright exemptions. The decree on the synchronization some features of copyrights as well as related rights in the world of information should also be revised to include an exception for transformative and works whose owners are not known.
In addition, the legislature should also consider borrowing some guidance from Case Law which has formulated aspects which are regarded appropriate to establish fairness. The Judges should interpret the fair dealing defences in a more open-minded manner. However, one cannot predict how the UK government will handle copyright infringement on the internet especially after the introduction of the EU’s Information Society Directive.
This notwithstanding, it is important that the liability of the Information Society Directive is legislated for moderately, dealing with the EU’s member states (EU Directive, 2001).This will ensure that the ISD will protect international economic welfare as well as free communication while regulation suppliers found in the internet.
List of References
Athanasekou, P., 2000, UK Report on Internet Law. [Online].
Bleakley, A., Powell, E. & Eneberi, J., 2010. Intellectual Property and Media Law Companion. London: Bloomsbury Professional.
Deacon, R., Lipton, N., & Pinker, R., 2010. Privacy and Personality Rights: Commercial Exploitation and Protection. London: Jordans Publishing.
EU Directive 2001/29/EC., 2001. OJ L167/10. [Online].
Holyoak, J., & Torremans, P., 1988. Intellectual Property Law. 3rd Ed. Oxford: Butterworth Heinemann
Johnson, R., & Post, D., 1996. Law and Borders – The Rise of Law in Cyberspace. [Online].
Klang, M., & Murray, A., 2004. Human Rights in the Digital Age. 4th Ed. Oxford: OUP
Passman, D., 2006. All You Need to Know About the Music Business. Minnesota: Hal Leonard Corp
Rubin, E., 2010. Foundations of Library and Information Science. New York: Neal-Schuman Publishers, Inc.
Stokes, S., 2001. Art and copyright. Oxford: Hart Publishing.