Are You a Pirate? – The Vast Scope of Copyright

If you went out into the streets and asked members of the public their thoughts on copyright, I imagine you would end up with the following sorts of results. Most people respect copyright. They think it is a valuable tool for encouraging artistic works. Or they think it is a fundamental right that creators have to protect their work. Or they are not quite sure what they think, but they know copyright is important, that they would never infringe copyright and that only pirates and criminals would do so.

Now imagine going out into the street and asking those same people to sing or hum a few lines from their favourite song (or simply sing you Happy Birthday). I imagine that many people (provided you asked nicely) would be happy to oblige – after all, there is clearly nothing improper about doing so. Except there is. Arguably, such an act would count as an infringement of copyright; if the song was still covered by copyright (for songs, until 70 years after the death of the author(s) in the UK) the law makes it very clear that a “performance of the work in public is an act restricted by the copyright”1 and that a “performance” includes “any mode of visual or acoustic presentation”.”2 By merely singing or humming a few lines (arguably a “substantial part”) there is a prima facie infringement. That person would now be a pirate.

All sorts of actions that we perform every day, often without thinking, may legally count as copyright infringement. Performing a musical work in the public is just one; to this we can add most use of photocopiers, copying a CD (even one you own) onto a computer or music player, recording a television program to watch it more than once, forwarding someone an email (including, for example, a picture of a cat with an amusing caption), translating a piece of text, adding a soundtrack to a home video, or even visiting certain websites in non-personal or commercial situations.

The Law

Copyright law in the UK is surprisingly restrictive. It is an infringement of copyright not just to copy a work, but to issues copies of, rent or lend, perform, show or play, communicate, or make an adaptation of a work covered by copyright.3 You do not have to copy the entire work, merely a substantial part will do (the definition of this is somewhat complicated, but only a handful of words can count) and it does not matter if you are unaware your actions are infringing, or that the work was still in copyright (although in the latter case, that might affect any damages awarded against you). It is even enough to authorise someone to do any of these things to count as an infringer.

In addition to this, copyright law is impressively broad in terms of scope. Copyright covers all “original literary, dramatic, musical or artistic works”, “sound recordings, films or broadcasts”, and even the “typographical arrangement” of any published work (even if the work itself is out of copyright).4 These definitions include “any work … written, spoken or sung” and specifically include tables or compilations, databases, computer programs, works of dance and mime,5 maps, charts, plans and even buildings “irrespective of artistic quality.”6 Copyright in any of these can be infringed by copying (or similar) either the entire work or a “substantial part”, either directly or indirectly.7 While “substantial part” is not defined in UK law directly, the current working definition comes from the European case of ‘Infopaq’ where it was held that copyright could exist in “certain isolated sentences, or even certain parts of sentences”8 – in the case itself, just 11 words from newspaper articles could be sufficient – with the underlying principle being that the part merely needed to be sufficient to express the original author’s “own intellectual creation.”9

Defences

With such a wide scope for what can be covered by copyright, and the large number of ways in which it can be infringed, it is not hard to see how easy it can be to infringe. Of course, there are defences to copyright infringement, which are given in over sixty sections of the Copyright, Designs and Patents Act, covering 40 pages of text.10 While this may sound like an impressive list, it is far from it, with the defences being limited to a few specific acts. The defences given include the general defence of “fair dealing” (far more restrictive than the more general “fair use” in the USA) which allows some copying for the sake of non-commercial research and private study,11 and criticism or review12 provided various conditions are met (such as attribution).

The other main and common defences are those for educational purposes which allow copying in classrooms by students or teachers,13 closed performances of literary or dramatic works including showing of films (despite what warnings at the start of DVDs might say),14 and lending of works within an educational establishment.15 As with the others, these defences come with very specific conditions and requirements which must all be met for the defence to hold.

Other defences include exceptions for libraries, visually impaired people, the government and Parliament, some broader defences covering computer programs, and dozens of minor, specific matters. There are, however, no general defences for non-commercial or personal use.

Summary

So the next time you come across an argument for why strong measures are needed to combat ‘pirates’ or to protect copyright, take a moment to work out when the last time you infringed copyright, and whether you would like these measures to be taken against you. Far from being simply a tool for encouraging artistic creation, copyright has grown into a monstrous restriction on freedom of expression which, were it to be upheld universally, would have a significant impact on almost all aspects of our lives. The current copyright laws of the UK (and much of the world) are no longer appropriate for the information age we live in, and it is the laws, not the pirates, which should be being closely scrutinised and challenged.


1 – Section 19(1), Copyright, Designs and Patents Act 1988
2 – Section 19(2)(b), ibid
3 – Section 16(1)
4 – Section 1(1)
5 – Section 3(1)
6 – Section 4(1), (2)
7 – Section 16(3)
8 – At 47, Infopaq International A/S v Danske Dagblades Forening [2009] EUECJ C-5/08, Courts of Justice of the European Union
9 – At 47, ibid
10 – Part I, Chapter III, Copyright, Designs and Patents Act 1988
11 – Section 29, ibid
12 – Section 30
13 – Section 32
14 – Section 33
15 – Section 36A
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