defences – exceptions and limitations
there are numerous exceptions and limitations (also often called “defences”) to the claim for copyright
infringement. these are not all covered here, and you do not need to be familiar with them all. for our syllabus,
we will focus on a particular sub-set of exceptions and limitations.
INTRODUCTORY/STRUCTURAL ISSUES
exceptions & limitations under the cdpa - general principles
Introduction to Part I, Chapter III of the CDPA 1988
- Even if a rightholder makes out a prima facie claim for copyright infringement, a defendant will
escape liability if his or her activities can be shown to fall within the scope of one of the numerous
defences (or exceptions) available under the CDPA 1988. These “permitted acts” are set out in CDPA
1988, part 1, ch 3 (ss 28-76).
- These are the “defences” with which we are concerned in this part of the course (rather, for example,
than a “defence” such as (i) “You are not the owner of the copyright”; (ii) “The alleged work is not
‘original’” or (iii) “I did not copy the work”. In the case of the affirmative defences with which we are
concerned in this lecture text, the defendant has the burden of proving the conditions for the
particular defence at issue (cf, the claim for infringement, where the burden of proof is on the
claimant).
- Under the CDPA 1988, these exceptions or limitations (defences) are typically defined in a tightly
defined manner (see, for example, CDPA s 70).
- The exceptions and limitations to rights covered by the EU acquis (ie, all rights except the public
performance right (s 19) and the adaptation right (arguably)) are covered by the rules deriving from
European secondary legislation (see 3 below). As a consequence, the terms of the relevant Directives
and the jurisprudence of the CJEU play a very important role in framing the terms of the exceptions
and limitations applicable to these rights.
More on terminology
- Before moving on, it is important to say a little more about terminology. As explained above, the
provisions with which we are concerned here are sometimes referred to as defences (for example,
this is the title of the relevant chapter in Bently et al). I have also explained that they are referred to
as “permitted acts” under the CDPA. In the relevant Directives (see 3.1 below), this type of provision is
referred to as an “exception or limitation” (hence the title of this lecture text). The distinction in
terminology is revealing. “Permitted act” is a relatively neutral term. However, exception (in
particular), suggests a derogation from the norm and is in line with the approach which has
traditionally been taken to such provisions in states from the droit d’auteur tradition (ie, the right is
the norm and the exception is a narrowly-confined diversion from that norm; see 3.7 below).
- The CJEU has distinguished between “exceptions” and “limitations”. In (C-457–460/11) VG Wort v
Kynocera [33]-[40], it stated that a provision which entirely precludes the application of a right is an
exclusion, whereas a provision under which the rights are partially excluded or use is subjected to
certain conditions is a limitation.
Situations covered by exceptions & limitations
- Take a moment to browse through the index to the provisions set out in CDPA 1988, ss 28-76, You will
see that the “permitted acts” cover a wide range of situations in which it has been decided
- that, for a variety of reasons, a claim for infringement ought not to succeed.
- The “permitted acts” fall into a number of broad categories, including disability ss 31A-F, education ss
32-36, libraries & archives (ss 37-44A), public administration (ss 45-50) and numerous others.
- In 2014, a series of significant amendments to the regime of permitted acts under the CDPA 1988
were made. These were intended to update and extend the permitted acts in the light of
technological change (and were particularly significant in the areas of research, education, libraries,
archives, disability, quotation and parody). At various points in the text below, these changes are
mentioned.
- Most recently, the Act have been amended to implement the so-called “Marrakesh Directive”
(Directive 2017/1564 on certain permitted uses of certain works and other subject matter protected
by copyright and related rights for the benefit of persons who are blind, visually impaired or
, otherwise print-disabled), which itself implements the requirements of the Marrakesh Treaty. This
Treaty obliges signatories to provide exceptions that allow the making of accessible format copies and
the transfer of such copies across borders. In the UK, implementation has been effected by the
Copyright & Related Rights (Marrakesh Treaty) Amendment Regulations 2018/995
Obligations outside copyright law
- In the UK (and generally elsewhere), the entitlements set out in the various “permitted acts” have
been regarded as freedoms or liberties, rather than as rights. In line with this approach, s 28 of the
CDPA 1988, provides that: “The provisions of this Chapter specify acts which may be done in relation
to copyright works notwithstanding the subsistence of copyright; they relate only to the question of
infringement of copyright and do not affect any other right or obligation restricting the doing of any of
the specified acts.” (CDPA 1988, s 28(1))
- As a result, in relation to many of the long-established permitted acts under the CDPA 1988, a user of
a copyright work may “contract out” of an otherwise permitted use. Thus, a contractual provision
could be employed by a right-holder to supersede a statutory “permitted act”.
- However, recently, account has been taken of the fact that users of copyright works increasingly gain
access to a work in the context of a contract and might often be in a weak bargaining position.
- Accordingly, there has been a move away from this situation. Thus, for example, the 2014
amendments protect a number of the permitted acts against contrary contractual stipulation (see the
new s 30(1A)(4)).
- Furthermore, in some recent instances, including the Charter cases ((see (C-476/17) Pelham GmbH v
Hütter EU:C:2019:624; (C-469/17) Funke Medien NRW GmbH v FRG EU:C:2019:623; (C-516/17)
Spiegel Online GmbH v Volker Beck EU:C:2019:625), the CJEU has suggested that users’ entitlements
under some of the exceptions and limitations (eg, entitlements to use works for the purpose of
criticism or review or news reporting) have the status of legal rights. It would not therefore ever seem
appropriate for such exceptions and limitations to be superseded by contrary contractual provisions.
- The Digital Single Market Directive also includes certain new exceptions and limitations which, if and
when implemented, explicitly preclude contracting out (see section 3 below).
- Quite separately, you should also note that the use of a work without a licence might implicate causes
of action other than contract (perhaps most obviously, breach of confidence or infringement of
privacy, where a work has not previously been made available to the public)
Moral rights - We have learned previously that the moral rights granted to authors and directors under the
CDPA 1988 are subject to significant weaknesses. However, all of the permitting acts relating to a claim for
copyright infringement do not necessarily apply to a claim for breach of moral rights.
exceptions & limitations – the eu acquis
A number of EU Directives establish important ground rules for the application of exceptions and
limitations within the EU.
Relevant EU Directives
- Specific regimes for software and databases are set out in the Software Directive and the Database
Directive respectively. Specific exceptions applicable to a claim for infringement of copyright in a
computer program are implemented through CDPA ss 50A-C. For databases, the relevant provision is
s 50D.
- Exceptions to the rights granted in respect of “related rights” subject-matter are established under
the Rental Rights Directive (Directive 2006/115) (Art 10).
- Recently, particular provisions have also been introduced (i) permitting certain public bodies to use
“orphan works” in certain situations and (ii) permitting the use of works by persons who are blind,
visually impaired or otherwise print-disabled (see section 2.2 above).
- However, the most important instrument of the EU acquis in this area is Art 5 of the Information
Society Directive (Directive 2001/29), which took a significant step towards harmonisation of the
exceptions and limitations to the rights established under that Directive (reproduction,
communication to the public/making available to the public, distribution). These rights apply to
“works” (and, in some instances, to subject-matter protected by related rights too
Art 5, Information Society Directive
there are numerous exceptions and limitations (also often called “defences”) to the claim for copyright
infringement. these are not all covered here, and you do not need to be familiar with them all. for our syllabus,
we will focus on a particular sub-set of exceptions and limitations.
INTRODUCTORY/STRUCTURAL ISSUES
exceptions & limitations under the cdpa - general principles
Introduction to Part I, Chapter III of the CDPA 1988
- Even if a rightholder makes out a prima facie claim for copyright infringement, a defendant will
escape liability if his or her activities can be shown to fall within the scope of one of the numerous
defences (or exceptions) available under the CDPA 1988. These “permitted acts” are set out in CDPA
1988, part 1, ch 3 (ss 28-76).
- These are the “defences” with which we are concerned in this part of the course (rather, for example,
than a “defence” such as (i) “You are not the owner of the copyright”; (ii) “The alleged work is not
‘original’” or (iii) “I did not copy the work”. In the case of the affirmative defences with which we are
concerned in this lecture text, the defendant has the burden of proving the conditions for the
particular defence at issue (cf, the claim for infringement, where the burden of proof is on the
claimant).
- Under the CDPA 1988, these exceptions or limitations (defences) are typically defined in a tightly
defined manner (see, for example, CDPA s 70).
- The exceptions and limitations to rights covered by the EU acquis (ie, all rights except the public
performance right (s 19) and the adaptation right (arguably)) are covered by the rules deriving from
European secondary legislation (see 3 below). As a consequence, the terms of the relevant Directives
and the jurisprudence of the CJEU play a very important role in framing the terms of the exceptions
and limitations applicable to these rights.
More on terminology
- Before moving on, it is important to say a little more about terminology. As explained above, the
provisions with which we are concerned here are sometimes referred to as defences (for example,
this is the title of the relevant chapter in Bently et al). I have also explained that they are referred to
as “permitted acts” under the CDPA. In the relevant Directives (see 3.1 below), this type of provision is
referred to as an “exception or limitation” (hence the title of this lecture text). The distinction in
terminology is revealing. “Permitted act” is a relatively neutral term. However, exception (in
particular), suggests a derogation from the norm and is in line with the approach which has
traditionally been taken to such provisions in states from the droit d’auteur tradition (ie, the right is
the norm and the exception is a narrowly-confined diversion from that norm; see 3.7 below).
- The CJEU has distinguished between “exceptions” and “limitations”. In (C-457–460/11) VG Wort v
Kynocera [33]-[40], it stated that a provision which entirely precludes the application of a right is an
exclusion, whereas a provision under which the rights are partially excluded or use is subjected to
certain conditions is a limitation.
Situations covered by exceptions & limitations
- Take a moment to browse through the index to the provisions set out in CDPA 1988, ss 28-76, You will
see that the “permitted acts” cover a wide range of situations in which it has been decided
- that, for a variety of reasons, a claim for infringement ought not to succeed.
- The “permitted acts” fall into a number of broad categories, including disability ss 31A-F, education ss
32-36, libraries & archives (ss 37-44A), public administration (ss 45-50) and numerous others.
- In 2014, a series of significant amendments to the regime of permitted acts under the CDPA 1988
were made. These were intended to update and extend the permitted acts in the light of
technological change (and were particularly significant in the areas of research, education, libraries,
archives, disability, quotation and parody). At various points in the text below, these changes are
mentioned.
- Most recently, the Act have been amended to implement the so-called “Marrakesh Directive”
(Directive 2017/1564 on certain permitted uses of certain works and other subject matter protected
by copyright and related rights for the benefit of persons who are blind, visually impaired or
, otherwise print-disabled), which itself implements the requirements of the Marrakesh Treaty. This
Treaty obliges signatories to provide exceptions that allow the making of accessible format copies and
the transfer of such copies across borders. In the UK, implementation has been effected by the
Copyright & Related Rights (Marrakesh Treaty) Amendment Regulations 2018/995
Obligations outside copyright law
- In the UK (and generally elsewhere), the entitlements set out in the various “permitted acts” have
been regarded as freedoms or liberties, rather than as rights. In line with this approach, s 28 of the
CDPA 1988, provides that: “The provisions of this Chapter specify acts which may be done in relation
to copyright works notwithstanding the subsistence of copyright; they relate only to the question of
infringement of copyright and do not affect any other right or obligation restricting the doing of any of
the specified acts.” (CDPA 1988, s 28(1))
- As a result, in relation to many of the long-established permitted acts under the CDPA 1988, a user of
a copyright work may “contract out” of an otherwise permitted use. Thus, a contractual provision
could be employed by a right-holder to supersede a statutory “permitted act”.
- However, recently, account has been taken of the fact that users of copyright works increasingly gain
access to a work in the context of a contract and might often be in a weak bargaining position.
- Accordingly, there has been a move away from this situation. Thus, for example, the 2014
amendments protect a number of the permitted acts against contrary contractual stipulation (see the
new s 30(1A)(4)).
- Furthermore, in some recent instances, including the Charter cases ((see (C-476/17) Pelham GmbH v
Hütter EU:C:2019:624; (C-469/17) Funke Medien NRW GmbH v FRG EU:C:2019:623; (C-516/17)
Spiegel Online GmbH v Volker Beck EU:C:2019:625), the CJEU has suggested that users’ entitlements
under some of the exceptions and limitations (eg, entitlements to use works for the purpose of
criticism or review or news reporting) have the status of legal rights. It would not therefore ever seem
appropriate for such exceptions and limitations to be superseded by contrary contractual provisions.
- The Digital Single Market Directive also includes certain new exceptions and limitations which, if and
when implemented, explicitly preclude contracting out (see section 3 below).
- Quite separately, you should also note that the use of a work without a licence might implicate causes
of action other than contract (perhaps most obviously, breach of confidence or infringement of
privacy, where a work has not previously been made available to the public)
Moral rights - We have learned previously that the moral rights granted to authors and directors under the
CDPA 1988 are subject to significant weaknesses. However, all of the permitting acts relating to a claim for
copyright infringement do not necessarily apply to a claim for breach of moral rights.
exceptions & limitations – the eu acquis
A number of EU Directives establish important ground rules for the application of exceptions and
limitations within the EU.
Relevant EU Directives
- Specific regimes for software and databases are set out in the Software Directive and the Database
Directive respectively. Specific exceptions applicable to a claim for infringement of copyright in a
computer program are implemented through CDPA ss 50A-C. For databases, the relevant provision is
s 50D.
- Exceptions to the rights granted in respect of “related rights” subject-matter are established under
the Rental Rights Directive (Directive 2006/115) (Art 10).
- Recently, particular provisions have also been introduced (i) permitting certain public bodies to use
“orphan works” in certain situations and (ii) permitting the use of works by persons who are blind,
visually impaired or otherwise print-disabled (see section 2.2 above).
- However, the most important instrument of the EU acquis in this area is Art 5 of the Information
Society Directive (Directive 2001/29), which took a significant step towards harmonisation of the
exceptions and limitations to the rights established under that Directive (reproduction,
communication to the public/making available to the public, distribution). These rights apply to
“works” (and, in some instances, to subject-matter protected by related rights too
Art 5, Information Society Directive
