The Copyright and Rights in Performances (Quotation and Parody)
Regulations 2014
Comments on submissions by the British Copyright Council (BCC) and the
British Association of Picture Libraries and Agencies (BAPLA)
The following arguments have been made in relation to the quotation and parody
exceptions provided by the Copyright and Rights in Performances (Quotation and
Parody) Regulations 2014.
1. Article 5(3)(d) of the Copyright Directive 1 refers to use of quotations for
purposes “such as criticism and review”. Therefore the exception provided for
by the Regulations, which permits use for the purpose of quotation “whether
for criticism, review or otherwise” goes beyond that permitted by the Directive.
2. It is impossible to quote a photograph without “substantial copying”, and
therefore images should be excluded from the scope of the quotation
exception.
3. The quotation exception is of wide scope, and is therefore incompatible with
the “three-step test” provided by Article 5(5) of the Directive, which says that
exceptions may only be provided in “certain special cases”.
4. The quotation exception does not require an acknowledgement of the source
of the quotation to be provided where this is “impossible for reasons of
practicality or otherwise”. This is not in line with the Directive.
5. The Copyright Directive does not regulate the right to control the public
performance of works (Section 19 of the CDPA), so any exception in relation
to this right cannot be introduced by means of Section 2(2) of the European
Communities Act 1972.
A submission was also received on behalf of British Pathé, Getty Images, Associated
Press, Press Association and Reuters. The issues raised by these organisations
were also raised by BCC and BAPLA and so are dealt with in this submission.
1. Use of quotations for purposes other than criticism and review
The quotation exception permitted by Article 5(3)(d) of the Copyright Directive has its
origins in Article 10(1) of the Berne Convention,2 which says:
(1) It shall be permissible to make quotations from a work which has already
been lawfully made available to the public, provided that their making is
compatible with fair practice, and their extent does not exceed that justified by
the purpose ...
1
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society, otherwise
known as the “Infosoc Directive”, http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML
2
Berne Convention for the Protection of Literary and Artistic Works,
http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P151_28262
The WIPO Guide to the Berne Convention,3 written following its 1971 revision as a
guide to interpretation by its contracting states, describes the term “quotation” in the
following way:
“In the dictionary sense, a quotation is the repetition of what someone else
has said or written; here it is used in the sense of including one or more
passages from someone else’s work in one’s own work. In other words,
quotation consists of reproducing extracts from a work either to illustrate a
theme or defend some proposition or to describe or criticize the work quoted
from. The use of quotation is not confined to literature: it may be from a book,
a newspaper, a review, a cinematographic film, a recording or a radio or
television programme.”4
Article 5(3)(d) of the Copyright Directive enables EU Member States to implement
this Treaty obligation. It provides that Member States may provide exceptions and
limitations to copyright allowing:
“quotations for purposes such as criticism or review, provided that they relate
to a work or other subject-matter which has already been lawfully made
available to the public, that, unless this turns out to be impossible, the source,
including the author's name, is indicated, and that their use is in accordance
with fair practice, and to the extent required by the specific purpose”
Article 5(3)(d) says that permitted quotations must be “for purposes such as criticism
and review”. This does not limit the use of the exception to criticism and review
purposes. Instead it the reference to “criticism and review” helps to describe what is
meant by a “quotation” – ie. a quotation in the Berne Convention sense.
This was confirmed by Advocate General Trstenjak, in the European Court of Justice
case C‑145/10 Painer,5 who described the terms “criticism and review” as “general
examples”, which should be used as an aid to interpreting the term “quotation”:
“As is made clear by the general examples cited in Article 5(3)(d) of the
directive, according to which the quotation must be for purposes such as
criticism or review, this is not sufficient in itself. There must also be a material
reference back to the quoted work in the form of a description, commentary or
analysis. The quotation must therefore be a basis for discussion.”6
In view of the above, is appears to be clear that application of this exception to all
quotations is consistent with both the Copyright Directive and the Berne Convention.
3
“The WIPO Guide to the Berne Convention”, WIPO, 1978.
Ibid, paragraph 10.2.
5
C‑145/10 Painer,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=82078&pageIndex=0&doclang=EN&
mode=lst&dir=&occ=first&part=1&cid=396872
6
Ibid, para 210.
4
2. Use of full quotations of photographs
Neither the Convention nor the Directive expressly exclude photographs or other
artistic works from the scope of the quotation exception. The argument submitted by
BAPLA is that, despite this, photographs should be expressly excluded from the
Regulations as they cannot be “quoted” without substantial copying.
Under the Article 16(3)(a) of the Copyright, Designs and Patents Act 1988 (the
CDPA) copyright is infringed where a person performs an act restricted by copyright,
without permission of the copyright owner, in relation on to the whole of a work or
any “substantial part” of it.
The permitted acts provided by Chapter III of the CDPA are exceptions to this
general rule. Therefore, where an exception is provided, more than a substantial part
of a work can be used.
The quotation exception is a fair dealing exception. This means that the amount of a
work that can be taken will depend upon a general assessment of the fairness of the
purpose for which it is used. Usually fair dealing will only allow the reproduction of
only part of a work, but it may sometimes allow the whole of a work to be taken.
In ECJ case C‑145/10 Painer, the Advocate General concluded that a “quotation”
could be a “full quotation” of the work, so could apply to photographs:
“... it would seem possible that a full quotation can also be a quotation within
the meaning of that provision. In the case of this type of work, a complete
reproduction may be necessary in order to create the necessary material
reference back to the work. If only parts of photos could be published under
Article 5(3)(d) of the directive, this would significantly restrict the application of
that provision to photos.” 7
This is consistent with the interpretation by the WIPO Guide to the Berne Convention
(above) and the general academic opinion on this provision.
However, as noted by AG Trstenjak, if a full work is being quoted, “particular
importance” would be attached to the requirements that quotations are used “in
accordance with fair practice” and in compliance with the three-step test provided by
Article 5(5) of the Directive. These conditions are implemented by the “fair dealing”
requirement in the Regulations. In practice, this means that, while it is possible to
“quote” a whole photograph, it may be more difficult to do this in a way that is
considered “fair dealing” when compared to the use of shorter extracts of other
works.
3. Compatibility with Article 5(5) of the Directive
Article 5(5) of the Directive provides that all exceptions provided by Member States
must comply with the “three-step test”, ie. they must be applied:
7
Ibid, para 212.
1) In certain special cases;
2) Which do not conflict with a normal exploitation of the work, and;
3) Which do not unreasonably prejudice the legitimate interests of the
rightholder.
The three-step test is found in most international copyright treaties, and has its
origins in Article 9(2) of the Berne Convention.
The BCC argue that the provision of a quotation exception conflicts with the
requirement that exceptions are only applied “in certain special cases”. There
appears to be no foundation for this claim. The quotation exception is mandatory
under the Berne Convention, which also subjects exceptions to the three-step test.
As a result, it should be considered in and of itself to be a special case, for which
exceptions are permitted/required.
This was the approach taken by the Advocate General in case C‑145/10 Painer. The
AG noted the need for the national court to consider Article 5(5) when applying the
exception, but only appeared to consider the third step to be of particular relevance:
“In this connection [the national court] will have to take into consideration in
particular whether the full quotation of the contested photos in the
newspapers, magazines and websites operated by the defendants in the main
proceedings seriously restricts their sales opportunities and thus
unreasonably prejudices the interests of the applicant in the main
proceedings.”8
The AG appeared to take for granted that the exception met the first step of the three
step test.
In view of the above, there appears to be no reason why a quotation exception
should not be considered a “special case” under Article 5(5) of the Directive.
It should also be noted, although not expressly raised, that the second and third
steps of the three-step test are met by virtue of the “fair dealing” requirement.
4. Sufficient acknowledgement
BAPLA contend that the requirement for the use of a work under this and other fair
dealing exceptions to be accompanied by a sufficient acknowledgement “unless this
would be impossible for reasons of practicality or otherwise” is not in line with the
Copyright Directive and radically changes the existing law in this area.
Article 5(3)(d) of the Directive requires that “unless this turns out to be impossible,
the source, including the author's name, is indicated”.
The acknowledgement requirement in the Regulations is consistent with this
provision, merely explaining that it may be impossible to provide a source “for
reasons of practicality or otherwise”. Similar language is currently used in relation to
8
Ibid, para 213.
the research fair dealing exception (CDPA Section 29(1B)), which implements a
similar acknowledgement requirement under Article 5(3)(a) of the Directive.
In case C‑145/10 Painer, the Advocate General considered when it might be
impossible to indicate the source of a quotation:
195. First of all, according to the wording of the provision, impossibility is the
relevant factor. A lack of reasonableness is not therefore sufficient. This
suggests a fairly strict criterion. This conclusion is also supported by the aims
of a high level of protection and an appropriate reward which underlie
Directive 2001/29. (61) Furthermore, the wording ‘turns out to be’ (62) shows
that certain efforts are expected to be made by the person quoting the work to
ascertain the source and the author’s name.
196. Secondly, it should be borne in mind that the quotation right serves to
realise freedom of opinion and freedom of the press. Consequently, the
criterion of impossibility should not be subject to such high requirements that
the quotation right no longer applies in practice if the author cannot be
identified.
197. The assessment whether it was impossible to indicate the author for the
purposes of Article 5(3)(d) of the directive must also be made in the context of
an appraisal of all the circumstances of the individual case.
The requirement for a sufficient acknowledgment unless this is impossible “for
reasons of practicality or otherwise” therefore appears to be consistent with the
approach taken by the Directive, and with the approach already taken by the CDPA.
5. Use of Section 2(2) of the European Communities Act 1972.
The Copyright Directive requires Member States to confer three rights on authors of
copyright works, namely:



the right to control copying of works (the reproduction right, implemented by
Section 17 CDPA);
the right to control communication of a work to the public (the communication
right, implemented by Section 20 CDPA);
the right to control distribution of works to the public (the distribution right,
implemented by Section 18 CDPA).
Article 5 of the Directive permits Member States to provide exceptions to these rights
in certain cases.
The British Copyright Council suggests that, since the Directive does not regulate the
right to control the public performance of works (Section 19 of the CDPA), any
exception in relation to this right cannot be introduced by means of Section 2(2) of
the European Communities Act 1972.
Section 2(2) allows provision to be made:
“(a) for the purpose of implementing any EU obligation of the United Kingdom,
or enabling any such obligation to be implemented, or of enabling any rights
enjoyed or to be enjoyed by the United Kingdom under or by virtue of the
Treaties to be exercised; or
(b) for the purpose of dealing with matters arising out of or related to any such
obligation or rights or the coming into force, or the operation from time to time,
of subsection (1) above;”
The first point to note is that the power under section 2 is not limited to implementing
obligations arising from EU Directives, but also extends to obligations arising from
treaties entered into by the EU. Such treaties include the Agreement on Trade
Related Aspects of Intellectual Property Rights (TRIPS)9, the WIPO Copyright Treaty
(WCT)10 and the WIPO Performances and Phonograms Treaty (WPPT) 11. The
TRIPS Agreement requires its contracting parties to implement most provisions of
the Berne Convention, so by extension it also falls within the scope of the ECA.
Among the rights provided by these Treaties are rights to control the performance of
copyright works to the public (as provided by Section 19 CDPA). These Treaties also
permit exceptions to the rights they provide, in accordance with the “three-step test”.
Secondly, it should be noted that there are a number of EU Directives other than the
Copyright Directive which harmonise copyright in the EU. Most notably, the Related
Rights Directive (Directive 2006/115/EC) requires Member States to provide certain
rights holders with the right to control the public performance of their works. It also
permits Member States to provide exceptions to these rights.
Thirdly, it is settled law that section 2(2) can not only be used to implement EU
obligations but Regulations can also deal with ‘matters arising out of or related to the
UK’s rights and obligations’.
In the case of ITV Broadcasting Ltd v TV Catchup Ltd12, there was consideration as
to whether amendments made using section 2(2) to section 20 of the Copyright,
Designs and Patents Act 1988 were ultra vires on the basis that they went slightly
further than required by EU law. Floyd J’s analysis of this issue found that the
amendments were intra vires, on the basis that the need for the changes arose out
of and were related to the UK’s obligations under the Directive.
To the extent that the Section 19 right to control public performances, and
exceptions to this right, are not wholly covered by the abovementioned Treaties and
Directives, it is clear that the same reasoning as in ITV Broadcasting can be applied,
for example, to the introduction of a parody exception that covers the public
performance right conferred by section 19 CDPA.
Moreover, a parody exception would not be fully effective unless it covers rights such
as the section 19 rights regarding live performances. For example many recordings
or broadcasts of the performances of comedians take place before live audiences.
Without a section 19 exception, such performances would not be possible without a
9
Agreement on Trade-Related Aspects of Intellectual Property Rights,
http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
10
WIPO Copyright Treaty, http://www.wipo.int/treaties/en/text.jsp?file_id=295166
11
WIPO Performances and Phonograms Treaty,
http://www.wipo.int/treaties/en/text.jsp?file_id=295578
12
Broadcasting Ltd v TV Catchup Ltd [2011] E.W.H.C. 1874
licence from the owner, despite the exception explicitly allowing use of the underlying
copyright work. Similar situations would arise from partial implementation of the other
exceptions highlighted by the BCC.
We believe therefore that adjustments to rights such as the public performance right
are related to, and arise out of the implementation of the Copyright Directive, and the
other Directives and Treaties in the field of copyright and related rights. As such,
these changes are properly within the scope of section 2(2) of the European
Communities Act.
END