Enter to open, tab to navigate, enter to select
Copyright: fair dealing
Practical Law UK Legal Update 3-100-9507 (Approx. 3 pages)
Copyright: fair dealing
| Published on 01 Jan 1999 • United Kingdom |
The Court of Appeal has provided guidance as to the circumstances in which a TV company may copy off air and make use of extracts from a programme made by another TV company, without their consent.
Summary. The Court of Appeal has provided guidance as tothe circumstances in which a TV company may copy off air and makeuse of extracts from a programme made by another TV company,without their consent.
Background. A person will have a defence against a claimfor copyright infringement if he can show that the use of thecopyright material was fair dealing with a work for the purpose ofcriticism or review or the reporting of current events and heprovides an adequate acknowledgement (sections 30(1) and 30(2),Copyright Designs and Patents Act 1988). These are known as thefair dealing defences.
In order to succeed in such a defence, the defendants need toshow that the copying and use were for the requisite purpose, thattheir dealing with the work was fair, and in the case of criticismor review, that they gave the copyright owner a sufficientacknowledgement as author of the programme which the statutedefines to mean that the author of the work must be identified.
Facts. The case revolved around the story of A, whobecame pregnant with eight foetuses and who, employed the servicesof a PR consultant who sold exclusive interview rights tonewspapers and TV companies in different territories. Theplaintiff, Pro Sieben paid a large sum of money for the exclusiveright to film an interview with A which was broadcast in Germanybut which, due to an overspill in the footprint of the satelliteused by Pro Sieben, could also be received in the south ofEngland.
The defendants who were making a programme on the evils ofchequebook journalism, copied the whole Pro Sieben programme offair, without the knowledge or consent of Pro Sieben. They thenselected a 31 second extract from the broadcast interview andincorporated this in their programme. This programme was broadcastby the defendants and featured Pro Sieben's station identifier, aseven logo, in the top right corner of the screen.
Pro Sieben began copyright infringement proceedings against thedefendants who relied on the fair dealing defence. The judge atfirst instance found, on the evidence, that the defendants' realpurpose in making use of the extract was to show that they wereabove chequebook journalism, and to scoff at Pro Sieben for havingpaid for an interview. The defendants appealed.
Decision. The Court of Appeal unanimously overturned thejudge's decision. They held that:
- The phrases criticism or review and reporting current eventsshould be interpreted liberally, in the interests of freedom ofspeech. Applying this standard, the court accepted the defendants'allegation that the current event being reported was A giving aninterview to a German television company. Unfortunately, the courtdid not take the opportunity to give further guidance or define theboundaries with more certainty.
- In considering the defendants' purpose, an objective test wasto be applied. It would not be sufficient for a programme maker tosincerely, but misguidedly, believe that they were using another'scopyright work for the purpose of criticism or review or forreporting a current event and the court had to consider the impactof the derivative work upon the audience. On this basis, the courtdecided that the purpose of the use of the extract was to criticisethe works of chequebook journalism which had occurred in this case.The intentions and motives of the programme maker are notcompletely irrelevant, however, as these will impact upon thequestion of the fairness of the dealing.
- A sufficient acknowledgement had been given as, whilst ProSieben were not named in the defendants' programme, the court heldthat the television transmission of a logo can constitute asufficient acknowledgement of the author of the original work (evenwhere, as in the current case, the logo would have no meaning tothe audience of the derivative work). In these circumstances, theuse of a logo may be sufficient where the author has chosen himselfto use the logo as an identifier, and where the name of the authorwas unlikely to have any significance to the audience.
- As regards the copying of the entire Pro Sieben programme offair, if this is done for the purposes of deciding whether to use anextract from it, then that copying is likely to be a fair dealingwhere the actual use of the extract is a fair dealing.
Comment. The Court of Appeal's decision has put on alegitimate footing the practice of copying off air otherbroadcasters' programmes in order to decide whether or not to usean extract from it. Given that the fair dealing defences are to beliberally construed, the circumstances in which extracts may beused are also likely to have been considerably widened. Forexample, reporting current events is not limited merely to thereporting of news. Whilst this may be good news for somebroadcasters, it is likely to be less welcome for many productioncompanies and footage libraries, the value of whose copyrights willbe diminished as a result.
In order to make it more difficult for others to merely copyprogrammes off air and use extracts, broadcasters should also givesome thought to the use of station identifiers. These could amountto a sufficient acknowledgement in view of the Court of Appeal'sdecision, without the copier having to give any further or moredetailed credit to the benefit of the copyright owner.
Case: Pro Sieben Media AG v Carlton UK Television Ltd &Twenty Twenty Television Ltd Court of Appeal, 17th December, 1998,The Times, 7th January, 1999.