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Copyright and Fair Use in the UK
The copying of somebody else's work will normally infringe that person's copyright, and be actionable. There is a defence of "fair dealing", and this defence must be relied upon for many quotations of other peoples works. The defence also lies at the very heart of the systems of quoting correspondence on Usenet and in mailing lists.
There is much U.S. law, but this is frankly misleading in England. The law in England is less well developed. The recent case of Pro-Sieben Media AG -v- Carlton UK Television Ltd and another The Times, January 7th 1999 CA, examined the availability of the defence of fair dealing, and also the meaning of the words "for the purposes of criticism or review". Both defences are provided in section 30 of Copyright, Designs and Patents Act 1988.
Carlton Television had set made a program which criticised 'cheque book journalism'. They included a 30 second slice of video taken from a full television program, where substantial fees had been paid for the interview, of which the slice shown constituted the meet. In effect it was claimed, Carlton had obtained and spoiled the story, by showing the clip, but without contributing to the fees. On the other side, there would not have been much point in quoting in illustration an item for which nothing had been paid.
The court, assisted by very senior copyright counsel, decided that the inclusion of the quotation was fair dealing, reminding us that this question is one of degree or of fact and impression. The clip had contained an acknowledgement in the form of the television company's logo was shown in the clip. Also, the extent of the quote in time was not unreasonable, it did not unfairly compete with the Plaintiff's ownership of the rights.
More, and particularly at first instance, the court had looked at the motive of Carlton in including that particular clip, and in the context of Carlton's advertising of the programme, concluded that the intent by using that particular clip was to defeat the economic interests of the Plaintiffs. The Court of Appeal held that this approach was too narrow. When looking at the motives of the Defendant in using a particular quotation, the court had to look at the overall purpose and intent of the work in which the extract was included, rather than the particular motive for including a particular extract. The court emphasised that "criticism and review" and "reporting current events" were words of wide and indefinite scope, which should be interpreted liberally.
The overall message of the programme was a strong critique of cheque book journalism and that motive was the conclusive factor in determining the absence of fairness.
See also now, the recent case Hyde Park Residence Ltd v Yelland and others CA Times 16-Feb-2000, where it was decided that the courts have an inherent jurisdiction to refuse to allow the enforcement of copyright. When assessing whether the copyright should be enforced the relevant issues would be ones arising from the work itself, and not from the ownership. Copyright rights are assignable in law, and therefore the court must apply different tests to those which applied to the breach of confidence.
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