Broadcasting, Record Labels, Music Publishing, Publishing
Carrollanne Lindley, trademark attorney and partner, Kilburn & Strode
In this article, UK trade mark attorney Carrollanne Lindley explores the defence of ‘fair dealing’ which in UK law can be used as a defence in certain circumstances by those who have copied an original work without permission. Fair dealing (and ‘fair use’) in the USA do have a direct relevance to the music industry, particularly to music sampling disputes, and readers may also wish to reference the Music Business Journal article by Ben Challis on this topic -“‘The Song Remains The Same” – and a link is given at the foot of the page for this article.
Copyright law in the United Kingdom stems from statute. Therefore, as any act of copying an original work is subject to a blanket cover, all exceptions must be given by statute. Fair dealing as a defence, dealing equating to use in this context, is derived exclusively from legislation. The provisions are laid out in Sections 29 and 30 of the Copyright, Designs and Patents Act 1988 as amended. There are three permitted purposes generally – criticism or review; reporting current events; research and private study.
Criticism or Review
Fair dealing for the purposes of criticism or review applies not just to the work being reviewed but extends to another work or the performance of the work , provided that the criticism or review is accompanied by sufficient acknowledgement. The Act itself contains a definition of sufficient acknowledgement (Section 178). This requires that the work is identified by its title or another description and that the author is identified. There are various points to be drawn from this:
1. It is possible for the reviewer to quote from Work A in the context of the criticism or review of Work B and not infringe either Work.
2. Criticism or review is only considered fair dealing if it is carried out by a person for his own purposes and not for the purposes of others. For example, if a commercial book of study notes of literary works was produced containing copied extracts, this would not qualify as fair dealing. Had a student produced it for his own purposes , the fair dealing defence would have applied, but in this context, it would be the publisher dealing, not the students.
3. The exception still applies if the criticism is not of the style of the piece but rather of the underlying doctrine or the subject matter under review. This was the case in the Scientology row, Hubbard v. Vosper (1972) 2QB 84. Here, the defendant had been a scientologist for a number of years but having ceased to believe, he wrote a book highly critical of the cult of scientology. In the book, there were substantial extracts from works written by L. Ron Hubbard, some of which were unpublished . The defence of fair dealing for the purposes of criticism or review was successful against a claim of copyright infringement.
4. There will not be fair dealing if what the party produces is a mere reproduction without comment or, if a copyright work is merely explained or reproduced in a different form, e.g. a long passage from a film is excerpted with no comment.
5. The Fair dealing exemption only applies if there is sufficient acknowledgement. In cases where the work is anonymous, this of course cannot include the name of the author but should still identify the work being reviewed. It is not always necessary however to use the name if there is sufficient matter to identify the party who produced the original work, e.g. a photograph or a logo representing the individual or company owning the copyright. The test is whether the acknowledgement given is sufficient to advise a reasonably alert member of the audience by whom the copyright work is being reviewed. In the Pro Sieben Media AG v. Carlton UK Television Limited case (1998) FSR 43, a thirty-second video of a woman pregnant with eight foetuses was included in a television programme. The purpose of the defendant in using the copyright video was to show that the claimant was involved in cheque book journalism. The extract contained the initials of the claimant’s television programme and its logo. This was deemed to be sufficient to identify the copyright owner, particularly since that was the manner in which the company tended to identify itself. This was another case commenting not upon the criticism of the copyright work but of the ideas and social and moral implications contained within the work, and as such deemed still to be criticism or review.
6. Extracts from a work can be copied just to criticize one feature of the work. There is no requirement that what is shown, being just a limited selection of a copyright work, presents a balanced view of the whole. In the Clockwork Orange case (Time Warner Entertainments Co. Ltd. V. Channel 4 Television Corp. plc (1994) EMLR 1), the television channel defendant showed a programme criticizing the decision to continue the refusal to show the film in the United Kingdom. The claimant obtained an injunction to prevent the screening of this programme. The injunction was lifted on the basis that the defendant could rely on the defence of fair dealing. The Court confirmed that in order to present serious criticism of the film, sufficient time must be spent showing extracts from the film. A Clockwork Orange is notorious for its violent sequences and was withdrawn originally because the director thought that some of the public might be tempted to copy the violence in real life. One judge said the broadcasting of a single violent scene of an otherwise innocuous film would not defeat a fair dealing defence.
Fair dealing with any copyright work other than a photograph for the purposes of reporting current events is a further exception. Again, generally a news report should be accompanied by a sufficient acknowledgement of the work and the author. There are exceptions to this based on the need for fast flow in some media.
1. The defence of reporting current events is unlimited as to the medium by which the current events are being reported. However, fair dealing does not apply in the case of a photograph. Even if one newspaper has obtained a unique photograph of an event which is published in an early edition, this cannot then be used a second time by a different newspaper or by television or any other broadcast media claiming fair dealing. Scoops are still available for photographs. Even the practice of copying a photograph from another newspaper with the intention of obtaining a licence retrospectively is unlawful.
2. As stated, there is a limitation to the acknowledgements that are required. The acknowledgement is not required if the current events are being reported in a sound recording, film, broadcast or cable programme (Section 30 (3)). This is an exception on the basis that introducing an acknowledgement would just be clutter in such a context.
3. The question must arise of what is a ‘current’ event. This is in fact fairly broad. It does need to be current certainly in the terms that it deals with a contemporary issue or at least an issue in the past relating to an event of current interest. In a case involving one of the Liberal Party politicians in the United Kingdom , the MP dictated a minute of a meeting he had with the Prime Minister. The minute was then copied by the Defendant newspaper in an article about secret plans to form a Liberal/Labour Party coalition. As there was no actual criticism of the minute itself, rather the actions of the individuals, this copyright infringement did not fall within the defence, although it was held that as long as the event is of current public interest, it could be deemed to be current. Ashdown V Telegraph Group Ltd (2001) RPC 659
4. What is an ‘event’ is again quite broad. It would cover any matter of national or international importance, be that political, sporting or cultural. The Princess of Wales became involved in one such decision in Hyde Park Residents Limited v. Yelland (2000) RPC 604. Stills were taken from video footage recorded by security cameras in which copyright existed. These showed Diana and Dodi Fayed arriving and leaving the Villa Windsor in Paris. These were shown one year after originally being taken. However, they were deemed to fit within the definition of reporting ‘current events’ as the purpose of the reporting was to show that Al Fayed (the owner of Harrods) had lied about the time that his son and the Princess of Wales had been at the villa. Whilst the event was held to be current, this was not deemed fair dealing as the information was already known and there was no need to use the footage to show this as the information could as well have been put into words. Some matters do not qualify as events, for example a television schedule or the latest underwear collection from Marks & Spencer, so to these, the exemption could not apply.
5. In every case there is the question of extent. The death of a famous person does not justify reproduction of their past correspondence, given that the event is the death not the place in history of the individual. This arose when correspondence between the Duke and Duchess of Windsor was published and the newspaper attempted to raise both the criticism and review and reporting current events as defences ( and failed) (Associated Newspaper Group plc. V. Newsgroup Newspapers Limited (1986) RPC 515).
Research or Private Study
1. This divides neatly into two areas. Research or private study which is for a commercial purpose infringes the copyright and a licence is required. In the United Kingdom, there are blanket licensing systems so that the exact terms on which e.g. a firm of lawyers can copy decisions to give an opinion as to their clients are determined by, for example, the Copyright Licensing Agency.
2. Research or private study which is non-commercial is permitted in relation to most types of works. Therefore if access was being given for e.g. Learned articles to be written , that would have fitted within a fair dealing exemption. Again, a requirement is made that the original work being used is acknowledged unless for some reason that is not possible. If a work is purely for private study for non-business purposes where basically nobody else is going to see the work produced, then no acknowledgement is necessary (nor indeed, nor would anybody probably find out).
3. It is not deemed to be fair dealing to commit any act of copying in relation to computer programs. Fair dealing with a database for research or private study requires an indication of the source (Section 29(1)(a) inserted by the Copyright and Rights in Databases Regulations 1997 Statutory Instrument).
What is Fair?
The issue of whether the dealing is fair is always one of degree. There is always the question of quantity. How much is being used? What is in use? Is the work competitive? There is also the issue of whether the purpose could have been achieved in a less intrusive manner. Here, we return to the Princess Diana and Dodi case. Whilst these were certainly current events, the defence failed because the purpose was not to report the events shown in the stills, but to point out the lies that Al Fayed had told. That purpose could have been achieved in a less intrusive manner. The question of financial gain also arises, when returning to the case concerning the correspondence between the Duke and Duchess of Windsor. The Sun newspaper which had copied those extracts and reprinted them claimed fair dealing and the Court held that even if the newspaper had been able to show the use amounted to criticism, review or reporting of current events, the defence would have failed as its objective in publication was simply to attract readers and not to achieve any fair dealing objective.
Another lodestone for making a judgement on whether the dealing is ‘fair’ is the status of a work. This arises where the work being copied was confidential or published. A fair dealing defence cannot apply to a work prepared in confidence. Therefore, copying the correspondence between the Moors Murderess Myra Hindley and the parole board could not be fair dealing given that these letters were prepared entirely in confidence (Hindley v. Higgins (1983) unreported).
Throughout Europe, another aspect to be considered on fair dealing is the impact on the copyright owner. Under the Berne Convention, Article 9 (2), consideration is to be given as to whether the fair dealing adversely affects the normal exploitation of the work by its copyright owner.
In appropriate circumstances, even a substantial part of a copyright work is likely to fall within the provisions of fair dealing. It is however a matter for the finances of the parties in each case to try and work out where the boundaries lie and this will bring into account the purpose, the proportion, the motive and the statuses of other works in the course of the decision.
(c) 2004 Carrollanne Lindley
Carollanne is a lawyer with Kilburn & Strode in London.This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters.
See : http://www.kstrode.co.uk
See also: “Don’t Shoot The Messenger: A Review of The Legalities Of Music Sampling” by Ben Challis at :http://www.musicjournal.org/03thesongremainsthesame.html