When can copyright infringement be permitted?

Written by | August 1, 2022


Copyright in original literary, dramatic, musical and artistic work, as well as film, sound recordings, broadcasts and typographical arrangements, is created automatically so long as the work is original. Copyright protection then lasts up to 70 years from the owner’s death and grants the holder an unregistered right to the work.

The said protection intends to reward the owner for their creative work and protect them from infringement. The protection, however, is from the expression of the work and not the idea. Having said this, there are various ways in which an infringement could be permitted. We explore this further below.

Fair dealing

An exception to copyright protection is found in respect of fair dealing when used for certain stated purposes. Before we consider some of those purposes, as any astute lawyer would tell you, it is important to consider what fair dealing means.

Fortunately, the meaning of ‘fair’ in this context is not filled with legal jargon and complications as was explained in the case of Hubbard v Vosper. Fairness was considered a ‘matter of impression’ and therefore judged by the court objectively with the facts of the matter in mind.

Caricature, parody or pastiche

One common purpose of fair dealing is a caricature, parody or pastiche. It is this exception that allows for parodies which copy earlier work but with a humorous twist that cheekily moves the work from a sinister infringement to a permitted exception.

Whilst this is a relatively new addition to the permitted exceptions, it is an exception that I suspect will become more and more important as our meme culture of the internet age continues to grow, especially as we become more and more invested in digital technology and the value of digital assets such as non-fungible tokens (NFTs).

Reporting current events

Interestingly, the use of copyright work for the purpose of reporting is permitted for any category of work, bar one. Any guesses as to which category that may be?

The answer is… photographs!

The exception for reporting allows copyright use to the extent justified by the informatory purpose. The interpretation of this exception can be rather liberal, with the event not needing to be considered important for it to apply. Have you ever wondered why news channels can air snippets of football matches, for example? Well, this is why.

Criticism and review

Another permitted purpose of fair dealing is for the purposes of criticism and review, so long as acknowledgement is given and the work was already in the public domain. So, for example, whilst I would not appreciate this blog post being used for criticism, it is permittable under copyright law.

As you would have noted, copyright infringement is a complicated area for which expert legal advice is important. If you would like to discuss this area of law, please contact our team by phone, email or contact form – we would be delighted to assist.

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