The Copyright Act of 1976 and the Copyright, Designs and Patents Act 1988 were both designed to address copyright protection and give a statutory footing to the rights of intellectual property – right holders both in the UK and in the US. The US legislation enacted prior to the UK legislation remains the main basis for the law of copyright in the US, albeit it has been amended and extended on several occasions since its inception. At the time of its inception, it was intended to address the new technological advancements that were up and coming at the time, such as TV and radio[1]. It provides a term of protection of 28 years, with an option to extend this by another 28 years. The legislation makes codified provision for the transfer of copyrighted works which demands that copyright transfers are to be effected in a written instrument of transfer, much the same as is required of a transfer of other property rights.
Under the US legislation, copyright protection is extended to “original works of authorship fixed in any tangible medium of expression, now known or later developed from what may be perceived, or otherwise communicated, either directly or indirectly or with the aid of a machine or device. The legislation defined what is meant by works of authorship and the reach of the legislation is thus extended to literary, musical, dramatic, pictorial works as well as sound recordings. The legislation protected what are defined in the legislation as “exclusive works”. These include a right to copy, create, sell, perform, and display the works to which copyright attaches. Additionally, the US legislation sets out on a statutory footing what is meant by the doctrine of “fair use”, i.e. when copyright is allowed to be qualified for the purposes of allowing people fair access to and use of it. These provisions are contained in section 107 of the legislation, and they provide that the “fair” use of copyright may not be deemed as a copyright infringement.
There are four factors that are to be considered when taking account of whether fair use may be shown, and the legislation provides that these measures may also be extended to unpublished works. These are additionally codified in the legislation and they are: the effect on the market of the use of the additional work, the nature of the copyrighted work, the purpose and character of the copyrighted work and the amount of the copyrighted work that has been used in all of the circumstances. The operation of the defence in the US may be illustrated by the case of Campbell et al v Acuff-Rose Music Inc. 510 US 569 (1994). The facts of the case were that a commercial parody that involved the use of a line from Roy Orbison’s tune “Pretty Woman” was held to be a fair use of the work. In reaching a decision on the case the definition of fair use was drawn on. Similarly in the case of Folsom v March 9 F Cas 342 (CCD Mass. 1841) the definition of fairness was specifically applied in order to ground a fair use defence.
The UK counterpart to the US legislation was enacted several years after the US legislation in 1988[2]. Like its US counterpart, it revokes of the antecedent laws that relate to copyright, where this comes into conflict with the terms of the new legislation. It extends to design rights also. The length of the period of protection is a much longer one by comparison to the US legislation – 70 years after the death of the original copyright owner, and unlike the US legislation the UK legislation does not have an interruption in this period whereby there is an onus on the copyright-holder to renew the period of protection that applies to the works in question. Although the legislation in the UK revoked all previous legislative enactments that it may conflict with, there is a considerable dearth of common law copyright principles that continue to operate, and some of these predate the enactment of the US legislation, notably the fair use doctrine which was in effect under the UK common law since the early 1900s. Like its US counterpart the UK legislation provides that works may be protected in various categories. These categories include artistic, literary and musical works, as well as sound recordings and TV productions. The UK legislation does in addition provide some categories that are excluded from copyright protection. Additionally, like its US counterpart the UK legislation codifies a regime for “fair use”. This regime is contained mostly in sections 29 and 30 of the Act, but extends to section 75 in the legislation. It provides a codified basis for the common law principles that were antecedent to the legislation, and requires that a fair dealing defence may be shown in response to any action for a breach of copyright. Specifically, the legislation allows that private study is encompassed within the doctrine of fair use. Other provisions are linked to a qualification of the use of the work, such as in section 30 where fair dealing may be raised in cases where the work has been cited for the purposes of criticising it or subjecting it to some form of review. Unlike its US counterpart, there is no definition of the word “fairness” in the UK legislation, albeit the common law that operated prior to the legislation did interpret the meaning of “fair” although this operated on a more or less case by case basis. Specifically the case of Hubbard v Vasper 91972) 2 QB 84 is widely perceived as one of the main, persuasive common law authorities on the question of what is meant by “fair” in the UK[3].
In summary therefore there are similarities and differences between the two statutory regimes. One of the most significant differences is that although both systems codify fair dealing defences, the US system has a more prospective approach to what is fair, by providing a definition of this. It may be argued that this key differences is significant for ideological, socio-legal and sociological reasons and this will be discussed in later sections of the essay which will address whether the absence of a proscriptive definition of fairness represents a weakness of the UK system.
[1] See also: Leong, S. (2007) Copyright Infringement in a Borderless World International Journal of Law and Information Technology 15 (38) 2007, pp. 2-3; Preston, P. and Flynn, R. (2000) Rethinking Universal Service: Citizenship, Consumption Norms and the Telephone. The Information Society 16(2) 91, pp. 5-6; Young, M. (2005) The Future of Universal Service. Does it Have One? International Journal of Law and IT 2005 13 188, pp. 4-5
[2] Holyoak, J. and Torremans, P. (1995) Intellectual Property Law. Butterworths. UK, p. 36-41; Bainbridge, D. (2003) Intellectual Property Longman. UK, p. 32-37; Bently, L. and Sherman, B. (2004) Intellectual Property Law. Oxford University Press. UK, p. 16-21; Dosi, G et al (1988) Technical Change and Economic Theory Pinter. UK, p. 17-20
[3] Contrast the discussions in Halsbury’s Laws of England and Wales 2006. Copyright, Design Patent and Related Rights “Nature of Copyright” (Vol. 9 2 Para. 3); Torremans, P. (2004) Copyright and Human Rights. Kluwer. The Netherlands, p. 96. See also. Macmillan, F. (2007) New Directions in Copyright Law. Elgar. UK, p. 118
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