I think its safe to say they must be relying on the "lawful use of the work" option. I'm not sure that being in breach of the rest of the copyright act would prevent the use of this exception (I'm getting out of my depth there though). However, if the use is not lawful under say RIPA, then yes 28A becomes void.
So 3 reasons why Section 28A will not save them.
Also, here is the problem with the implied licence argument:
Quote:
An implied licence to use a copyright work might arise when there is nothing in writing granting you a licence and you have not even agreed a licence verbally with the copyright owner. In both of those cases you have an explicit licence, although where there is nothing in writing there may, of course, be a disagreement later on about whether there is a licence. It is always better to ensure that any agreement about a licence is recorded in some way.
You will only be able to argue that you have an implied licence where all the circumstances suggest that the copyright owner expected you to use his or her copyright material in the way you are going to use it, even though this was never discussed and has not been written down anywhere.
Examples where this might be the case are:
* Where a copyright work has been commissioned and the commissioning contract does not deal with copyright,
* Where you want to use some material you have downloaded from the Internet and the copyright notice on the website does not say what you may and may not do with it. You could therefore argue that the circumstances suggest there is an implied licence to do this. Whether any particular material might be covered by an implied licence is something you will have to judge from the website you found it on, but you cannot argue that you have an implied licence where the material was on the Internet illegally in the first place of course.
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( From
http://tinyurl.com/yr5bkc )
Plenty of websites have explicit copyright licences and therefore an implied licence cannot exist.