Fair Dealing Defence – Since the first law introduced to keep up with printing technology (Statute of Anne 1709), copyright law has successfully emerged to prevent a variety of infringement incidents culminating to its current battleground in a digital age, fighting an Internet army with the consensus to share information freely
The evolution of a digital society has already had an economical affect on journalism worldwide and there is much debate over the future demise of an industry that is transforming into a predominately digital medium. Johnston Press, a publisher of famous titles such as The Scotsman and The Yorkshire Post, announced at the beginning of 2009 that its advertising was down 35 percent from the same period in 2008. According to John Fry, chief executive of Johnston Press, the impact of the recession has been compounded by the ongoing structural changes in the industry that have resulted from increased use of the Internet.
At a conference held earlier this year, Chairman and Chief Executive of News Corporate (Europe and Asia), James Murdoch explained that in the last year alone 109 US newspapers had closed or stopped publishing a print edition, he said: “Search companies and aggregators skim content from a thousand sources, sell it to clients, scoop up advertising revenues and put little or nothing back into professional newsgathering.”
In contrast, last month David Cameron announced his intentions to review IP copyright laws to “make it fit for the Internet age”, he said: “The service Google provide depends on taking a snapshot of all the content on the Internet at any one time, and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States.” He added: “The US have a ‘fair-use’ provision which some people believe gives companies more breathing space to create new products and services.
The current law in the UK, The Copyright, Designs and Patents Act 1988, does provide the opportunity for reasonable duplication of news stories online or otherwise under a fair dealing defence, similar to that of the fair-use in the US, but armed with more restrictive conditions. The US version allows for a flexible ‘balancing test’ to
ascertain the use of works as fair, however the UK have specific categories under which a defendant must qualify. Despite this, the fair dealing defence has still managed to facilitate the success of online businesses in the UK, enabling them to elevate revenue within a news and gossip driven virtual society.
Currently the fair dealing defence allows for the use of extracts from publicly available information for the purpose of reporting current events, private study or non-commercial research and criticism or review, under the condition that the author is acknowledged sufficiently within reason of practicality. There are also provisions for incidental use whereby the copyright work is in the background or subordinate to the main focus of the work.
Adaptable in its regard, the defence can apply when the work supports a direct link to the story or a wider subject area. For example, in the Pro Sieben Media AG v Carlton UK Television Ltd (2000) case, the defendants’ television broadcast sought to criticise cheque-book journalism of all types, and used a clip from a German television broadcast as one illustration of the matter. The Court of Appeal held that the fair dealing defence was applicable as the effect of the broadcast was to criticise the distortion of truth which cheque-book journalism could produce.
It is also permitted to extract and review only one feature of an authors work as demonstrated by the Time Warner Entertainment Co plc v Channel Four Television Corporation plc (1994) case. The Director had withdrawn the film, A Clockwork Orange, notorious for its violent scenes from the UK market to avoid ‘copycat’ violence and the defendants went on to broadcast the violent scenes in a programme about the withdrawal from the market. The Court of Appeal nonetheless held that the defendant’s programme constituted fair dealing.
A demonstration of the restrictions in this defence is the case of Ashdown v Sunday Telegraph (2001), which was unsuccessful despite The Telegraph’s plea of fair dealing under both criticism or review and reporting current affairs. They had published several verbatim extracts from a confidential minute prepared by Lord Ashdown of a meeting between him and Tony Blair in 1997 and lost the case due to their replication of the ‘very words’ within minutes that were known as confidential and therefore regarded as unauthorised use of another authors work.
Arguably a significant dispute for the future of the UK Internet economy is The Newspaper Licensing Agency (NLA) and media monitoring agency ‘Meltwater’. The High Court ruled in favour of the NLA and a coalition of national newspaper groups the case held last month instigated from the NLA’s decision to levy a £10,000 charge on those who sell-on aggregated links and summaries from newspaper websites at the beginning of this year.
Many view this as a step toward further restrictions to freedom of speech on the Internet in the future leading to a potential impact on companies such as Google News. On the day of the trial CEO of Meltwater, Jorn Lyseggen, said: “Today’s ruling goes against the very fabric of the way the way the Internet works today and will have dramatic implications for the entire Internet ecosystem in the UK.” Meltwater has been given leave to appeal the ruling and set to fight the NLA at the Copyright Tribunal early next year.
The complications and difficulties of preventing distribution online has certainly had a hand in the ignorant lack of control of a free digital society to date and a successful balance in its future copyright is long overdue. It is inevitable that copyright law will continue to be challenged by technological advances and therefore exist as a continually evolving law with a mission throughout its development to enforce the protection of the authors rights and encourage creative expression.
Murdoch’s argument was strong in this endeavor when he said “It is the public whose interest we need to serve – both people now, and future generations who deserve to enjoy the richness and diversity of material that we know we are capable of producing”. He added: “The defining characteristic of the world created by the Statute of Anne and its successors has been the protection it offers to artists: and the encouragement that it provides to risk. It opens up a literally boundless world for a determined individual with a creative vision.”
By Jennifer Le Roux
Photography by renjith krishnan, www.freedigitalimages.net
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