Convergences and Development
Edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly
Chapter 11: The United Kingdom's public interest "defence" and European Union copyright law
In some circumstances, the United Kingdom's flexible "public interest" defence allows the unlicensed use of copyright works, even when such use is not covered by the "permitted acts" explicitly identified under the Copyright Designs & Patents Act 1988 ("CDPA 1988"). Although infrequently applied, this defence plays a structural role in protecting important interests (including freedom of expression and freedom of the media) when they are not adequately secured within the detailed rules of the statutory scheme. However, the scope, and even the very existence, of this defence have given rise to considerable controversy. In particular, some courts and commentators have expressed concern about the apparent subversion of a detailed statutory scheme through the exercise of ill-defined judicial power. Copyright's status as a property right has intensified these concerns. Nevertheless, in 2001, in Ashdown v Telegraph Group Ltd, the Court of Appeal confirmed the existence of the "public interest" defence in certain limited circumstances. This decision appeared to have concluded the debate about the legitimacy of the "public interest" defence in domestic law. However, questions have subsequently been raised about its compatibility with EU copyright law. In particular, it has been doubted whether the maintenance of the defence is consistent, first, with the existence of an exhaustive list of exceptions and limitations under Article 5 of the Information Society Directive and, secondly, with the so-called "three-step test" in European copyright law.
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