UK Copyright Infringement: ‘Fair Dealing’ in Digital World
Our appetite for data has, arguably, never been greater. The advent of mobile technology has only fuelled that appetite by allowing us to consume increasing amounts of data on the move on our smartphones and tablets. For many of us, our smartphone is our primary source of data. A recent survey found that 82% of smartphone owners check them within one hour of waking up, and that smartphones are the primary source of news for 42% of users aged between 25 and 34 (see the PwC / Internet Advertising Bureau UK Digital Adspend Report 2016).
Because of the ease with which we can stream data to our mobile devices, we are increasingly demanding ‘data experiences’. For example, it is not enough for us to just read about some breaking news. We also want a visual experience. We want to see it happening.
It is perhaps not surprising then that news content providers (such as newspaper publishers and other media organisations) are adapting how they deliver content to us to keep pace with the smartphone revolution. In many cases, they can no longer just provide a written feature on a newsworthy item. It must also be supported by visual content.
To satisfy this need, news content providers are, increasingly, including ‘clips’ with their online offering. A ‘clip’ is a twenty second or so extract from television, film or online footage which exemplifies the content of a written feature. It shows the very moment that the goal was scored, the hurricane struck or the politician made (yet another) gaffe. These clips are usually taken from third party footage. So the provider might take a clip from BBC news footage, for example. The BBC owns the copyright in its footage and so, absent a legal justification, taking and using the clip (without the BBC’s express permission) would be copyright infringement. However, the clip could be used if the provider can rely on an ‘exception’ to copyright. One such exception is ‘fair dealing’.
Fair dealing is, in essence, a defence to copyright infringement. It allows you to copy part of a (usually already published) third party copyright work without having to get the copyright owner’s prior permission. For example, it would allow you to copy a short passage from a book, to reproduce a photograph or other image, or to use clips from television, film or online footage. You are not required to make any payment to the copyright owner in return for use of their material. You do not need to let the copyright owner know what you are doing and you can go ahead even if the copyright owner is aware of what you are doing and objects. It is irrelevant whether you are acting in a commercial or non-commercial context.
The fair dealing defence is set out in Chapter III of the Copyright Designs and Patents Act 1988 (CDPA). There are a number of specific fair dealing exceptions covering, for example, libraries and educational settings. However, some aspects of the fair dealing defence are of wider application. For example:
the defence of ‘fair dealing for the purpose of reporting current events’ is a particularly useful defence for media organisations. It allows an extract from a copyright work (other than a photograph) to be used to report an event contemporaneously, or to report an event which may have happened some time ago, but which remains genuinely newsworthy. For example, you could use a clip from TV footage to report contemporaneously a terrorist incident;
the defence of ‘fair dealing for the purposes of criticism or review’ allows an extract from a copyright work to be used in order to critique or review the extract itself, or another copyright work. For example, you might want to use a clip from a film in order to comment on the level of violence included in the movie as a whole;
the defence of ‘fair dealing for the purposes of quotation’ not only allows extracts from copyright works to be used to provide a ‘quote’ in the traditional sense of the word, but also to reference something that has already happened. For example, clips from various movies could be shown to illustrate the fact that a particular actor favours comedy roles;
the defence of ‘fair dealing for the purposes of caricature, parody or pastiche’ allows you to take an extract from a copyright work and build on it to create a separate ‘mashed-up’ work, usually for humorous effect. As the UK Intellectual Property Office explains in its guidance Exceptions to copyright – Guidance for Creators and Copyright Owners:
“a comedian may use a few lines from a film or song for a parody sketch, a cartoonist may reference a well-known artwork or illustration for a caricature or an artist may use small fragments from a range of films to compose a larger pastiche artwork”.
In all cases, use of the copyright work must be ‘fair dealing’. This is a matter of fact, degree and impression in each case but the question to be asked is: how would a fair-minded and honest person have dealt with the work? If your use would commercially compete with the exploitation of the original copyright work, or if you have copied an unnecessarily large chunk of the original copyright work, then your use is unlikely to be fair dealing. In addition, in most cases, your use of the work must be accompanied by a ‘sufficient acknowledgment’, identifying the name of the original copyright work and its author unless this would be “impossible for reasons of practicality or otherwise”.
If you want to rely on the fair dealing defence it is important to ensure that you satisfy all of the applicable conditions. Otherwise, you will fall outside the scope of the defence and your use of the work could amount to copyright infringement. The copyright owner would be entitled to an injunction to stop you using the work again and to damages to reflect the loss it has suffered, or the profits you have made, from your use of the work.
So, who could benefit from the fair dealing defence? Well, potentially anyone who has a legitimate reason for taking and using part of a copyright work, provided what they are doing fulfils the fair dealing criteria. How useful the fair dealing defence is may have been somewhat overlooked in the past. However, it may prove to be a lifeline for those organisations with business models that increasingly depend on satisfying audience demand for immediate ‘experience’ data.