Copyright, Designs and Patents Act 1988, section 31

Incidental inclusion of copyright material

Part I Copyright

(1)Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film[F115 or broadcastF115] .

(2)Nor is the copyright infringed by the issue to the public of copies, or the playing, showing [F116or communication to the publicF116] , of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.

(3)A musical work, words spoken or sung with music, or so much of a sound recording[F115 or broadcastF115] as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.

Definitions used in section 31 7

artistic work

(1) In this Part “artistic work” means—

(a)a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

(b)a work of architecture being a building or a model for a building, or

(c)a work of artistic craftsmanship.

Defined in s.4(1) · see it in the full Act

“artistic work” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 ;

Defined in Sch.4 para.38 · see it in the full Act
sound recording

(1) In this Part “sound recording” means—

(a)a recording of sounds, from which the sounds may be reproduced, or

(b)a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced,

Defined in s.5A(1) · see it in the full Act

“sound recording” means—

Defined in s.5(1) · see it in the full Act
film

(1) In this Part “film” means a recording on any medium from which a moving image may by any means be produced.

Defined in s.5B(1) · see it in the full Act

“film” means a recording on any medium from which a moving image may by any means be produced.

Defined in s.5(1) · see it in the full Act
broadcast

(1) In this Part a “broadcast” means an electronic transmission of visual images, sounds or other information which—

(a)is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or

(b)is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,

Defined in s.6(1) · see it in the full Act
copy

(1)The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

Defined in s.17(1) · see it in the full Act
made

(2)Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

Defined in s.3(2) · see it in the full Act
musical work

“musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

Defined in s.3(1) · see it in the full Act

Cases considering section 31 3

Football Association Premier League Ltd. & Ors v Panini UK Ltd.

[2003] EWCA Civ 995 · 11 July 2003Interprets

The section is treated as the statutory source of the incidental-inclusion defence. Its subsections were construed together to determine whether the copied emblems and badges were incidentally included and whether copies could be issued to the public. (see paras [18]-[20], [24]-[27]) The court interprets incidental inclusion by asking why the copyright work was included in the relevant artistic work, assessed objectively in its commercial and factual context. The inclusion of authentic club badges and the league emblem was essential to the purpose of the images and therefore outside the defence. (see paras [24]-[27]) The court interprets the provision as protecting the issue of copies only where the making of the relevant work was itself non-infringing under section 31(1). The relevant work was the image as it appeared on the sticker or in the album, not the original photograph. (see para [25]) The court confirms that incidental does not mean unintentional or non-deliberate. Read with section 31(1), the provision shows that deliberate inclusion may still be incidental in an appropriate case. (see para [24])

Football Association Premier League Ltd & Ors v QC Leisure & Ors

[2008] EWHC 1411 (Ch) · 24 June 2008

Applies the incidental-inclusion defence to the Anthem as captured in the player line-up. The inclusion was found entirely incidental. (see paras [197]-[207])

Fraser-Woodward Ltd v British Broadcasting Corporation Brighter Pictures Ltd

[2005] EWHC 472 (Ch) · 23 March 2005

Applied by asking why the photograph was included in the programme in its objective context. The small photograph within the kidnap headline was incidental, but the larger photograph accompanying the related newspaper story was not.

What each judgment says about section 31 is in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F115Words in s. 31(1)(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(d)(e) (with regs. 31-40)
  2. F116Words in s. 31(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 6(2)(b) (with reg. 31-40)