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Defences to Copyright Infringement Defences to Copyright Infringement Creativity, Innovation, and Freedom on the Internet STAVROULA KARAPAPA Professor of Intellectual Property and Information Law University of Reading 1 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Stavroula Karapapa 2020 The moral rights of the author have been asserted First Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2019953097 ISBN 978– 0– 19– 879563–6 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. For Georgia Nicky Preface This book is the result of a long- standing interest in defensive rules in copyright law. Although this interest has led me to write on specific defences for copyright infringement in the past, a central aim of this book was to adopt a broader perspec- tive and look into defensive rules more widely, particularly in the light of emergent copy- reliant technologies and modern business models. Indeed, the fourth indus- trial revolution brings unprecedented challenges to copyright and calls for a crit- ical reflection on whether the applicable copyright defences are actually conducive towards achieving the objectives of EU copyright law. With this book, I attempt to offer legal and teleological insights into how defensive rules should be construed in order to achieve the objectives that EU copyright law means to serve, including, but not limited to, creativity, innovation, and business growth. The book builds on years of research into the nature and function of defensive rules under EU copyright law. My early research on the private copying exception, which goes back to my doctoral studies at Brunel University, was published with Routledge (Karapapa 2012) and was also discussed in other publications, such as ‘A copyright exception for private copying in the United Kingdom’ in the European Intellectual Property Review (Karapapa 2013). I am elaborating and closely re- flecting on aspects of this research in this book. I have also worked on some aspects of defensive rules from a cross- jurisprudential perspective in the monograph I co- authored with Maurizio Borghi, entitled Copyright and Mass- Digitization and pub- lished with Oxford University Press in 2013. While working on this monograph, I was attracted by the emergence of copy- reliant technologies— beyond those used in the context of mass digitization initiatives—a nd was captivated by the fact that, although these technologies can have important public benefits, such as the en- hancement of innovation and development of new business models, they are often constrained by copyright norms and the limited availability of copyright excep- tions under EU copyright law. At a broader level, however, what I thought was interesting was that, although the scope of exclusive rights has been gradually enlarged at the legislative and ju- dicial level, certain internal limits to rights have gradually started to shrink. Part of this tension is addressed in my work on the exhaustion principle, which was pub- lished with the Intellectual Property Quarterly (Karapapa 2014, ‘Reconstructing copyright exhaustion in the online world’). I have also discussed the internal limits of exclusive rights in an article that was published with the European Law Review (Karapapa 2017, ‘The requirement for a “new public” in EU copyright law’), taking a particular focus on the concept of the new public in the context of the right of viii Preface communication to the public. Some of the ideas I expressed in these articles are also reflected in this book. For the book to be published, I have received support from various people that I want to thank. This book would not have been possible without the support I re- ceived from Alex Flach, Gemma Parsons, Natalie Patey, and the team at Oxford University Press. I thank Maurizio Borghi for his generous advice on draft chap- ters, Lynda O’Brien for editing the manuscript, and various colleagues for insights during early stages of the research— particularly Tanya Aplin, Michael Birnhack, Enrico Bonadio, Ioannis Kokkoris, and Christine Riefa. Finally, I would like to express my love and gratitude to my husband, Dimitrios, for his unfailing patience and support, and my daughter, Georgia Nicky, whose birth coincided with the writing of this book. It is to her that this book is dedicated. Table of Cases UK CASES Allen v Redshaw, Patent Court London, CC 12 P2645, 15 May 2013 � � � � � � � � � � � � � � 172n31 Ashdown v Telegraph Group [2001] Ch 685 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 158– 59n6 Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142, [2002] Ch 149 � � � � � � � � � 180– 81, 180– 81n62, 180– 81n64, 185, 185n82, 326–2 7, 326nn91– 92, 326n94 Ashdown- Grisbrook v MGN Ltd [2009] EWHC 2520 (Ch), aff’d on appeal [2010] EWCA Civ 1399 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 327, 327n101 BASCA v Secretary of State for Business and Innovation [2015] EWHC 1723 � � � � � �264n18, 269– 70n42, 284– 85n108 BBC, Petitioners [2012] HCJ 10 (High Court, Scotland) � � � � � � � � � � � � � � � � � � � 327, 327n104 Beckingham v Hodgens [2002] EWHC 2143 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 154n73 Beloff v Pressdram [1973] 1 All ER 241 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 324, 324n79 Blackburn v ARC Ltd [1998] Env LR 469 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �43n47 Bodo Sperlein v Sabichi, High Court of England and Wales, Chancery Division [2015] EWHC 1242 (IPEC) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �79– 80nn55– 56 Booth v Edward Lloyd Ltd (1909) 26 TLR 549 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 148n47 Brighton v Jones [2004] EWHC (Ch) 1157 � � � � � � � � � � � � � � � � � � � � � � � � � � � � 149n52, 153n67 British Leyland Motor Corp� v Armstrong Patents Co� [1986] AC 577, 625 � � � � � � 140– 41n8 Cartier International and Others v BSkyB and Others [2014] EWHC 3354 (Ch) � � � � � 305n10 Clark v Associated Newspapers, High Court (Chancery Division), 21 January 1998 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 173– 74n37 Coward v Phaestos Ltd [2013] EWHC 1292 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 148n50 Cramp v Smythson [1944] AC 329 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 58– 59n121 Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] UKHL 58 � � � � � �74n29, 74– 75, 74– 75nn30– 31 Dickens v Hawksley [1935] Ch� 267 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 85– 86n85 Drabble (Harold) Ltd v The Hycolite Manufacturing Co� (1928) 44 TLR 264 � � � � 144– 45n25 Duck v Bates (1883–8 4) LR 13 QBD 843 � � � � � � � � � � � � � � � � � � � � � � � �95– 96n131, 95– 96n135 England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor [2016] EWHC 575 (Ch) � � � � � � � � � � � �63n142, 63n143, 66–6 7n156, 73n26, 181, 181n68 Ernest Turner Electrical Instruments v Performing Right Society [1943] Ch� 167, 172–1 73 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 95– 96n133 Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320 � � � � � � � � � � � � � � � � 50– 51n87 Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch 119, [1982] RPC 69 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 58– 59n125, 59– 60, 59– 60n128 FIsher v Brooker [2006] EWHC 3239 (Ch) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 153– 54n69 Fisher v Brooker [2009] UKHL 41, [2009] 1 WLR 1764, [2009] FSR 25 � � � � � � � � � � � 153– 54, 153– 54n68, 153– 54nn70– 71 xviii Table of Cases Forensic Telecommunications Services Ltd v Chief Constable of West Yorkshire [2011] EWHC 2892 (Ch) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 190– 91n98 Fraser v Evans [1969] 1 QB 349! � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 324n77 Fraser- Woodward Limited v BBC [2005] EWHC 472 � � � � � � � � � � � � � � � � � � � � � � � � � � 185n84 Frisby v British Broadcasting Corp [1967] Ch� 932 � � � � � � � � � � � � � � � � � � � � � � � � 151nn58– 59 Future Publishing Ltd v Edge Interactive Media Inc, [2011] EWHC 1489 (Ch), 13 June 2011 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 61n135 Gartside v Outram [1857] 26 LJ Ch 113, 114 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 325n84 Godfrey v Lees [1995] EMLR 307 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 153n67 HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776 � � � � � � 327n99 HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch) � � � � � � � � � 327, 327nn97– 98, 327n100 Hubbart v Vosper [1972] 2 QB 84 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 224n47 Hyde Park Residence Ltd v Yelland [1999] EMLR 654 � � � � � � � � � � � � � � � � � � � � � � 325, 325n87 Hyde Park Residence Ltd v Yelland [2000] 3 WLR 215, [2001] Ch 143 (CA) � � � � �158– 59n6, 180n60, 323n73, 325n88, 325n89, 326n90, 326 Hyperion Records Limited v Sawkins, Court of Appeal (Civil Division), 19 May 2005, [2005] EWCA Civ 565, [2005] 1 WLR 3281 , [2005] EMLR 688 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 38n27, 53, 53nn97–9 8, 53n99, 54 Ibcos Computers Ltd v Mercantile Highlands Finance Ltd [1994] FSR 275 � � � � � � � � 153n67 Initial Services v Putterill [1968] 1 QB 396 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 324n77 ITV Broadcasting Ltd v TV Catchup Ltd [2011] EWHC 1874 (Pat) � � � � 107n205, 117– 18n19 John Kaldor Fabricmaker v Lee Ann Fashions [2014] EWHC 3779 (IPEC) � � � � 69n4, 79n52 Joseph v National Magazine Co Ltd [1959] Ch� 14 � � � � � � � � � � � � � � � � � � � � � � � � � 151nn58– 59 Jumar Solutions Limited v Derek McKee [2016] EWHC 1361 (Ch) � � � � � � � � 79, 79nn53– 54 Ladbroke (Football) Limited v Williams Hill (Football) Limited [1964] 1 WLR 273 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 47– 48n77 Lion Laboratories Ltd v Evans [1985] QB 526 � � � � � � � � � � � � � � � � � � � � � �324, 324n81, 325n82, 325n83, 325, 325n85 MacMillan & Co Ltd v Cooper (1924) 40 TLR 186 � � � � � � � � � � � � � � �47– 48, 47– 48n79, 48n81 Mei Fields Designs Ltd v Saffron Cards and Gifts Ltd, Intellectual Property Enterprise Court [2018] EWHC 1332 (IPEC) � � � � � � � � � � � � � � � � � � � � � � � � � � 79– 80n55 ‘Meltwater’ case see Newspaper Licensing Agency v Meltwater Holding BV and Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd [2013] MGN Ltd v Grisbrook [2010] EWCA Civ 1399; [2011] ECDR 4 � � � � � � � � � � � � � � � � �151n60, 151– 52n61, 152n62 Millar v Taylor (1769) 4 Burrow 2303 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 85– 86, 85– 86n83 Navitaire Inc v EasyJet Airline Co� [2005] ECDR 160 � � � � � � � � � � � � � � � � � � � � � � � 58– 59n122 Newspaper Licensing Agency Ltd v Marks and Spencer plc [1999] RPC 536 (CA) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 198– 99n130 Newspaper Licensing Agency Ltd v Marks and Spencer plc [2001] House of Lords, 12 July 2001, [2001] UKHL 38, [2002] RPC 4, [2001] ECDR 28, [2001] ECC 52, [2001] 3 All ER 977, [2003] 1 AC 551, (2001) 24(9) IPD 24055, [2001] 3 WLR 290, [2001] EMLR 43 � � � � � � � � �51– 52n91, 180– 81n66 Table of Cases xix Newspaper Licensing Agency v Meltwater Holding BV [2010] EWHC 3099 (Ch) (Meltwater) � � � � � � � � � � � � � � � � � � � � � � � �122n44, 125, 125n53, 125n54, 133–3 4, 134n83 Newspaper Licensing Agency v Meltwater Holding BV [2012] RPC 1 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 62, 62n139, 73, 73n25 Noah v Shuba [1991] FSR 14 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 148n48 Nova Productions Ltd v Mazooma Games [2006] EWHC 24 (Ch) � � � � � � � � � � � � 56– 57n113 Nova Productions Ltd v Mazooma Games [2007] EWCA Civ� 219, [2007] RPC 25 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �33, 33n4 Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2013] EWHC 3479 (Ch) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �101– 2n174, 107n205 Performing Rights Society v Rangers FC Supporters Club [1974] SC 49 � � � � � � � �95– 96n133, 95– 96n136 Plix Products Ltd v Frank M� Winstone (Merchants) [1986] FSR 63 � � � � � � � � � � � � � � 148n46 Pro Sieben Media AG v Carlton UK Television Ltd [1998] FSR 43, 54 � � � � � � � � � � 180– 81n63 Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605, [1999] FSR 610, CA � � � � � � � � � � � � � � � � � �180– 81n62, 185n84, 185– 86n85, 198– 99n130 Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd [2013] UKSC 18, [2013] 2 All ER 852, [2013] RPC 469 (Meltwater) � � � � � � � �3– 4n9, 62n139, 112, 112n1, 115nn14–1 5, 118– 19n25, 121– 22n42, 122n45, 123, 134, 134n84, 136–3 7, 137nn105– 106, 217, 217n36, 352n2 R (British Academy Of Songwriters, Composers & Authors & Anr) v Secretary Of State For Business, Innovation and Skills, 19 June [2015] EWHC 1723 (Admin) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 282n99 R (British Academy of Songwriters, Composers & Authors & Anr) v Secretary of State for Business, Innovation and Skills, 17 July [2015] EWHC 2041 (Admin) � � � � � � � � � � � � � � � � � � � � 264n18, 269– 70n42, 284– 85n109 Ray v Classic FM plc [1998] FSR 622! � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 148n49 Redwood Music Ltd v Chappell & Co� Ltd [1982] RPC 109 � � � � � � � � � � � � � �144– 45nn23– 24 Reformation Publishing Co Ltd v Cruiseco Ltd, Intellectual Property Enterprise Court [2018] EWHC 2761 (Ch), 22 October 2018 � � � � � � � � � � � � � � � � � � � � � � 101– 2n174 Roworth v Wilkes, 1 Campbell 94, 98 (1807) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �78n51 Sawkins case see Hyperion Records Limited v Sawkins, Court of Appeal (Civil Division), 19 May 2005 Sony Music Entertainment (UK) Limited and Others v Easyinternetcafé Limited [2003] EWHC 62 (Ch) � � � � � � � � � � � � � � � � � � � � � � � � � �271– 72n52, 276, 276n69 Sony/ ATV Music Publishing LLC v WPMC Ltd, High Court of England and Wales, Chancery Division, HC-2 012- 000143, 1 July 2015 � � � � � � � � � � � � � � � 153– 54n72 Stovin- Bradford v Volpoint Ltd [1971] Ch 1007 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 148n49 Temple Island Collections Ltd v New English Teas Ltd and Nicholas John Houghton [2012] EWPCC 1 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �74n28, 79– 80n55 Trumpet Software Pty Ltd v Ozemail Pty Ltd (1996) 34 IPR 481, 500 � � � � � � � � � � � � � 149n51 Twentieth Century Fox and Others v British Telecommunications plc [2011] EWHC 1981 (Ch) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 305n10 Unilever plc v Griffin [2010] FSR 33 (Ch) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 327, 327n103 Universities UK Ltd v Copyright Licensing Agency Ltd [2002] EMLR 35 � � � � �191, 191n99, 191nn100– 101 University of London Press v University Tutorial Press [1916] 2 Ch 601 � � � � � � � � � 47– 48n80

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