Intellectual Property: Fair Dealing and Public Interest
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. ‘Fair Use’ allows limited use of copyrighted material without the need to get permission from the copyright holders. It makes provision for the legal, unlicensed citation or inclusion of copyrighted materials in another author’s work. There are numerous examples of fair use in intellectual property including criticism, review, commentary, search engines, parody, journalism, research, teaching, archiving and scholarship.
A significant statement on what constitutes fair dealing was given by Lord Dunning MR in the case of Hubbard v Vosper (1972). In 1971 the book ‘The Mind Benders’ was published. It was written by Mr. Cyril Vosper, the first defendant, and published by Neville Spearman Ltd., the second defendants. It was very critical of the cult of Scientology. On the same day the Church of Scientology of California went to the judge and obtained from them (ex parte) an interim injunction to restrain the publication of the book.
In writing the book Vosper made free use of. Hubbard’s books, letters and bulletins. He took small amounts from some, but substantial amounts from others. The claim was put forward that the parts which were taken were so substantial that Vosper was guilty of infringement of copyright unless he could make good his defence. His response was that his use of them was fair dealing within section 6 (2) of the Copyright Act 1956.
This says that: “No fair dealing with a literary, dramatic or musical work shall constitute an infringement of the copyright in the work if it is for purposes of criticism or review, whether of that work or of another work, and is accompanied by a sufficient acknowledgment.”
What Lord Dunning said which is of interest to our exploration of Fair Use is that it is: “It is impossible to define what is “fair dealing.” It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing.
If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide. In the present case, there is material on which the tribunal of fact could find this to be fair dealing.”
Nevertheless, despite being an ethereal piece of law a number of guidelines have emerged in the case law suggests Jennifer Davis [Intellectual Property Law, 4th Edition, Oxford University Press, page 61]. The Copyright, Designs and Patents Act 1988 does not specify how much copyright material may be reproduced without falling outside the definition of fair dealing, although there are some specific rules for librarians. It is suggested that the amount should be commensurate with the purpose for which it is taken. This is a matter of impression or degree. It might justify the reproduction of the whole work, for example, an epitaph on a tombstone, or a large part of it.
(Hubbard, per Megaw LJ: “The fact that a quotation contains every single word of the work criticised or reviewed does not necessarily preclude a defendant from relying on the defence of fair dealing under s 6 (2) of the Copyright Act 1956)
In Fraser-Woodward Ltd v British Broadcasting Corpa (2003), the BBC broadcast a programme, ‘Tabloid Tales’, which was intended to be critical of celebrity journalism. Mr Justice Mann presided over the case where Brighter Pictures, a TV production company, used images from newspaper pages on which 14 photographs of the family of David Beckham (the footballer) and Victoria Beckham (the pop singer). These images had been published under licence to the newspaper.
Fraser-Woodward Ltd, which owned the rights to those photographs sued Brighter Pictures and the BBC for copyright infringement. The principal defences were fair dealing within section 30(1) of the Copyright, Designs and Patents Act 1988, and of incidental inclusion within the meaning of section 31(1) of the same Act.
Although apparently candid shots, according to the programme makers they had actually been posed and this was part of the critical review which was taking place. The defendants argued that the purpose of the programme was to criticise tabloid journalism and review the methods which were used by the tabloid press and the celebrities featured in it to create and exploit a story to their own advantage.
Although the entire photograph was reproduced the judge, Mr Justice Mann, held that there had not been an excessive use of the works as each photograph was shown only for a few seconds. The judge pointed out that any legitimate use of a photograph for the purposes of criticism and review was likely to entail the reproduction of a large part of the work.
Unpublished Work
It is generally held not to be fair dealing for an unpublished work to be subject of public criticism or review. In the case of British Oxygen Ltd v Liquid Air Ltd (1925), where the defense of fair dealing was put forward when a letter of correspondance was coped and distributed to a firm of stockbrokers.
- British Oxygen Co Ltd and Liquid Air Ltd were commercial rivals
- British Oxygen Co Ltd offered another company – Tanks and Drums Ltd – concessions on the oxygen they bought.
- British Oxygen Co Ltd discovered Tanks and Drums Ltd were planning to trade with Liquid Air Ltd, and wrote a letter stating they would cease trading with them on this basis.
- Liquid Air Ltd got a copy of the letter and made copies public to expose the bullying tactics.
- British Oxygen Co Ltd claimed a breach of copyright and of confidence
Liquid Air was not putting forward a defence of ‘fair dealing’ on the basis of criticism or review but was utilising the tactic to highlight the allegedly suspicious dealings of British Oxygen Co Ltd. Judge Romer ruled in favour of the plaintiffs favour of the British Oxygen Co Ltd stating that the defendants would not be allowed to rely on ‘fair dealing’ in order to attack the commercial character of British Oxygen. Judge Romer said it was an infringement of copyright to allow a company to publish a private business correspondence between two other companies when there was no evidence of restraint of trade.
Another famous case which examines the copyright issues surrounding unpublished works is that of Hyde Pard Residence Ltd v Yelland (2000). In this case the court examined a dispute about ownership and copyright of of video tapes taken by Princess Diana before her death.
The Hyde Pard Residence Ltd provided security services to Mr Mohamed AI Fayed and his family. Mr Al Fayed owned a house in Paris where the Yelland’s employee, the fourth defendant, was employed as a security guard. There were eight video cameras.
On the day before Diana Princess of Wales and Dodi Fayed were killed in an accident, they visited the house. The security officer had set the video cameras to record the times of their arrival and departure. The recordings showed, that the visit had lasted about 28 minutes.
In 1998, Mr Fayed published allegations that the visit lasted two hours and that the purpose in visiting the house was because they were planning to marry and live there. The security guard claimed that he had been asked to lie and corroborate this story but refused to do so. He took stills from the video showing the exact times of arrival and departure before then resigning from his job. He later sold copies of the stills to The Sun newspaper, which in turn published them in September 1998.
The story The Sun ran had the headline of “Fayed’s Diana Lies” and it included a photograph of Mr Al Fayed; inside the stills were published on page 4. The Hyde Pard Residence Ltd sought summary judgment against the editor of The Sun, its proprietors and the security guard. The defense put up was that the publication had been fair dealing for the purpose of reporting current events and that copyright was unenforceable in light of the general public interest. The Lord Justice Stuart Smith, Lord Justice Aldous, and Lord Justice Mance upheld the defences of fair dealing and public interest dismissing the claim against them for copyright infringement.
Lord Justice Mance said “The circumstances in which the public interest might override copyright were probably not capable of precise categorisation or definition. Although it would normally be the case that the circumstances must derive from the work in question and not the ownership of the copyright, the possibility of assignment did not lead to the conclusion that it always had to be so. It was conceivable that the publication of a copyright document which itself appeared to be entirely innocuous was justified in the public interest because of its significance in the context of other facts. The court would be entitled to refuse to enforce copyright where the work was immoral, scandalous or contrary to family life; was injurious to public life, public health and safety or the administration of justice; or where the work incited or encouraged others to act in any of the ways referred to above”
If a work is unpublished, but it has been ‘leaked’ by an unidentified source or obtained in breach of confidence, it will increase the likelihood of the court seeing the dealing as unfair. There is the case of Beloff v. Pressdram Ltd (1973) in which an action for infringement of copyright in an unpublished document was brought by Nora Beloff – the Political and Lobby Correspondent of the Observer newspaper – against the publisher and printer of Private Eye magazine.
The alleged infringement was the re-production of an internal Observer office memo written by Nora Beloff describing a conversation between the her and a named cabinet minister regarding possible successors to the prime minister in the event of their accidental death. A major issue in the action was whether or not Beloff was owner of the copyright in the memo.
As its author she would have been so entitled to its ownership unless at the time she had been employed by Observer Ltd under a contract of service. In this case the copyright, by virtue of section 4(4), belonged to Observer Ltd. and not to her. Beloff argued that she was employed under a contract for services rather than a contract of service. In the alternative she relied on an assignment to her of the copyright in the memo made by the Editor of the Observer, however Private Eye Magazine contended that the assignment of ownership was not made with the authority of Observer Ltd.
Questions were also raised as to whether the assignment – even if not made with such authority – was valid because the Editor had represented that he had authority and the Beloff had relied on that representation; whether the assignment was bonafide; and whether notice of the assignment should have been given to Private Eye Magazine under section 136 of the Law of Property Act, 1925.
The job required a great amount of skill but, as was stated in the case, “…the greater the skill required for an employee’s work, the less significant is control in determining whether the employee is under a contract of service”. Beloff maintained that she was self-employed and as such owned the copyright in a sensitive piece of information. The courts decided that despite her expertise, contracted position and freedom to write for other journals the work was done as an integral part of the organisation.
