Exceptions
There are no statutory defences to copyright infringe-
ment. However, there are common law defences, the
principal being known as ‘non-derogation from grant’.
This defence was developed from the decision of the
House of Lords inBritish Leyland vArmstrong Patents
Co(1986). In this case the House of Lords refused to
allow British Leyland (as it was then) to enforce its copy-
right in drawings relating to replacement exhaust pipes
so as to prevent car owners from obtaining replacement
exhausts from independent makers. The House of Lords
said this would derogate from British Leyland’s implied
grant of rights to buyers of British Leyland cars, allow-
ing them to repair their cars by the most economical
method during the normal working life of the vehicle.
However, in Canon Kabushiki vGreen Cartridge Co
(Hong Kong) Ltd(1997) the Privy Council approved a
decision of the court of trial granting an injunction to the
claimants, thus prohibiting the defendants from infring-
ing copyright in the claimants’ drawings of replacement
toner cartridges for photocopiers and laser printers.
The Privy Council said that the cost of a replacement
exhaust was relatively small in relation to the capital and
running costs of a car. In contrast, the cost of replace-
ment cartridges for a laser printer substantially exceeded
the cost of the printer itself. There was also competition
for the claimants, as suppliers of replacement cartridges,
from those who refilled exhausted toner cartridges. It
could not, therefore, be said that the claimants were
unfairly using their intellectual property rights to abuse
their monopoly in replacement toner supplies.Moral rights
Under the 1988 Act authors are given certain moral
rights in their work which exist quite independently of
copyright. They provide protection alongside a copy-
right and would be especially useful and necessary to an
author who had sold the copyright to someone else.The right of paternity
This is a right to be identified as the author of a literary,
dramatic, musical or artistic work. In general terms this
right operates whenever the work is performed in pub-
lic, or issued to the public or commercially exploited. It
includes the right to be identified as the author of a work
from which any adaptation is made. The right extends
to copies of the piece and to signs on buildings such as
theatres, where the sign can be seen by people entering
or approaching the building. This right of paternity
must be specifically claimed by the author.
The exceptionsto the right of paternity are quite
extensive and include what are called fair dealing excep-
tions that also apply to copyright. These include the use
of extracts of works for the purpose of reporting current
events, incidental inclusion in a broadcast or cable tele-
vision programme and extracts for use in examination
papers. If the author consents to the publication of the
work in collective works, such as encyclopedias and/or
dictionaries, he or she forgoes the right to be credited in
the work.The right of integrity
Under this right the author may object to changes in his
or her work by way of additions, deletions, alterations or
adaption which amount to a distortion or mutilation of
the work, or in some way harm the author’s honour or
reputation. Film directors are included in the expression
‘authors’ for this purpose.
As regards exceptions, an author may not exercise the
right of integrity in translations of the underlying liter-
ary or dramatic work. So, authors may have to put up
with poor translations of their work with no remedy.False attribution
This gives the author a right against false attribution
which mirrors the right of paternity referred to above.
Under the paternity right an author is entitled to bePart 4Business resources
436
the Nationwidecase. The court had heard argument
whether the copying constituted fair dealing in reporting
current events in accordance with s 30(2). Peter Gibson
LJ felt that, if what the defendant had done had been
a prima facie breach of copyright, s 30(2) would have
afforded no defence, but a decision on the point was not
necessary in view of the decision which the court had
reached.
Comment. The above case is retained as an example of
copying for commercial research. However, the Copyright,
Designs and Patents Act 1988 has been significantly
changed by the Copyright and Related Rights Regulations
2003 (SI 2003/2498), which implement the EU Copyright
Directive 2000/29/EC from October 2003. The regulations
abolish the fair dealing exception for commercial research
and businesses wishing to conduct research through
press-cuttings, as in the above case, will need a licence.
For more on the regulations, see p 437.