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The University of Southampton
Interdisciplinary Centre for Law, Internet and Culture (iCLIC)

A defence or right to quotation under UK copyright law? What is the difference and which is desirable? Event

Mr James Parish
12:00 - 13:00
5 February 2018
Building 2, Room 1085, Highfield Campus

Event details

ILAWS Seminar

Abstract: As part of the 2014 amendments to the Copyright, Designs and Patents Act 1988, the UK Government introduced a new permitted act for the making of fair quotations. To date, this permitted act has not be tried before the Courts of England & Wales and, therefore, its scope is still indeterminate. How might the Courts interpret this new provision? This one simple question challenges many of our assumptions about UK copyright law and its relation to EU and International obligations—many of which will be examined in this lecture. Might the Courts interpret section 30(1ZA) by adopting the ejusdem generis principle of statutory interpretation, restricting the permitted act to the purpose of commentary? This would be in keeping with the Government’s suggestion that section 30(1ZA) is a “minor amendment” to the scope of the fair dealing for the purposes of criticism or review under section 30(1). In practice, however, how would such a conservative interpretation be an extension to the “wide and indefinite scope” that is already afforded to the terms ‘criticism’ and ‘review’? Instead, might the Courts adopt the Marleasing principle and interpret section 30(1ZA) in a manner corresponding to article 5(3)(d) of the Information Society Directive? If so, this could potentially open up the permitted use for fair quotation. Yet, is the Marleasing principle only relevant if the exceptions and limitations of the Directive are autonomous, prescriptive provisions that Member States must transpose unchanged? Might articles 5(2) and 5(3) instead be ceilings that Member States cannot go beyond, thus leaving deference to the domestic courts to provide a greater level of protection to rightholders if desired? Moreover, what inferences might be drawn from the cases of Painer and Deckmyn, which require a “fair balance” to be struck between “the exercise of the users’ right to freedom of expression” and rightholders’ exclusive rights? Could this re-open the Hyde Park v Yelland and Ashdown v Telegraph debate and, crucially, might this option be time-sensitive in light of Brexit? Or perhaps the Courts should adopt a third way and interpret section 30(1ZA) in accordance with the supposed “right of quotation” in the Berne Convention. This lecture will address the differences between these three options and, finally, ask whether there is in fact a difference in outcome dependent on which interpretation is adopted?

Speaker information

Mr James Parish,University of Cambridge, St Edmund's College,Mr. James Parish is a Ph.D. Candidate at University of Cambridge (St. Edmund’s College) researching the relationship between the permitted acts of the Copyright Designs and Patents 1988 and the scope of the exclusive rights. He holds a first-class honours Bachelor of Laws (University of Glamorgan) and a Masters of Laws with distinction (Dickson Poon School of Law, King’s College London). In addition, James is the recipient of the Modern Law Review Scholarship 2017 and the Wright Rogers Law Scholarship 2017–18, Administrator of the Centre of Intellectual Property and Informational Law (CIPIL) at the University of Cambridge, Visiting Tutor of Intellectual Property Law at the Dickson Poon School of Law (King’s College London), a Solicitor of England & Wales (non-practising), and an award-winning director of TV Commercials, short films and music videos.

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