Fair dealing in the UK

1 What have Courts said on the Enumerated Purposes?
2 The Dealing must be Fair
3 Hierarchy of Factors

The UK doctrine of fair dealing that has developed in the courts over almost two centuries made its first statutory appearance in the UK Copyright Act 1911.¹ There has been pronounced academic debate on UK's fair dealing provision. Some scholars have argued that the UK doctrine offers no principles or vision and that it contains too many obstacles that undermine its operation.² Yet, others maintain that UK courts adopt a liberal interpretive approach.³

Copyright, Designs and Patents Act 1988⁴ ("CDPA") Chapter III of the 1988 Act, sections 28 to 76, is concerned with "Acts Permitted in Relation to Copyright Works"⁵ and contains the present fair dealing provisions in sections 29 to 30 which stipulate enumerated purposes similar to its Canadian counterpart: (1) research or private study (2) criticism or review and (3) reporting current events. As in Canada, at least pre-CCH, the defendant must overcome three hurdles: (1) the dealing must fall into an enumerated category (2) the dealing must be fair (as per the common law criteria set out below) and (3) in the last two cases, there must be sufficient acknowledgment.⁶ Against the conclusions of previous government studies, the recent Gowers Review has not recommended that fair dealing be amended.⁷ Rather its recommendations follow the UK tradition to carve out specific exceptions. Gowers recommends to add several new exceptions, among which are those for parody and format-shifting.⁸ These two exceptions have not attracted any controversy.⁹

The UK enumerated purposes are said to be liberally construed.¹⁰ By adopting an objective test, courts have made it reasonably easy to prove that a dealing fits in one of these categories. Still, this liberal construction is not consistent with CCH which arguably has expanded the actual allowable purposes perhaps to include a parody right in a future following of CCH.

1 What have the Courts said on the Enumerated Purposes?

(a) Research or Private Study

Research and private study must be for a non-commercial purpose.¹¹ Some UK commentators argue that a database used in market testing for a new drug or a commercial training course would constitute research or private study.¹² It is still a difficult middle ground to determine what is meant by commercial. Recital 42 of the Information Society Directive mandates that one must look at the activity rather than the "organizational structure and the means of funding the establishment".¹³ One key factor seems to be that research need not be private. Other important factors include the amount taken, if the work is readily available, and the effect on the market.¹⁴ It is possible for an agent to photocopy works for third parties but there are limitations if the copying would result in substantial dissemination of the same material.¹⁵ Arguably, this would be the same in CCH which allowed copying subject to a fair dealing compliant access policy. Still, because of CCH, in Canada, research and private study can include commercial purposes.

In the UK, the application of this purpose has been criticized for it fails to reflect the importance of non-textual media and it applies in a limited fashion to computer programs.¹⁶ This purpose also does not apply for a broadcast, sound recording or film.¹⁷

(b) Criticism or Review

For a dealing to fit this category, the subject work must have been previously available to the public, be fair and have sufficient acknowledgement. In Sillitoe and Others v McGraw-Hill Book Company,¹⁸ there was no fair dealing in the use of original summaries incorporated into "Coles Notes." The court found that the authors of the Notes, used very long extracts without sufficient acknowledgement. The Notes inclusion of brief commentaries under only some of the reproduced summaries was not sufficient for criticism or review. In Associated Newspapers Group Plc v News Group Ltd.¹⁹, at issue was the printing of letters owned exclusively by the Daily Mail by a competing newspaper, The Sun. The defendants' motive had not been for the purpose of criticism or review, but to "attract readers."²⁰ In this case, the "death of the Duchess does [did] not require the publication of the contents of the letters."²¹ One could simply have reported the event.

(c) Current Events Reporting

This purpose has been generally construed as news reporting, though a recent case, Pro sieben Media AG v Carlton UK Television Ltd, has given its scope wider interpretation.²² Broadcasters have criticized Pro Sieben for its potentially wide applicability of current events now extending beyond news.²³ The court has not clarified the extent of its new scope.

2 The Dealing must be Fair

Once a defendant proves that work a falls into an enumerated purpose, the defendant must show that the dealing was fair. Hubbard v Vosper²⁴ sets out the main test for fairness. For some scholars Hubbard, "represents the first major judicial attempt to define the concept of fairness with respect to the fair dealing provisions contained, at that time, in section 6 of the 1956 Copyright Act."²⁵ At issue was whether Hubbard's book, as the founder of the Church of Scientology of California, infringed a book authored by a former member of the Church of Scientology, Vosper, which he relied upon extensively for his own work. In denying an application for an injunction, Lord Denning for the Court of Appeal maintained that whether a dealing is fair is a matter of fact and degree and all the circumstances of a particular case must be taken into account:²⁶

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 a 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 fair. Other considerations may come to mind also. But after all is said and done, it must be a matter of impression."²⁷

A court must therefore weigh the extent and proportion of the work used in relation to the original work and uses made (eg for a rival purpose).²⁸ An entire work may also be subject to the fair dealing defence.²⁹ Since the Human Rights Act of 1998, courts need to be flexible and considerations of public interest are paramount.³⁰ While not expressly delineated in the legislation, from the caselaw, several factors emerge on what is "fair" on the most part consistent with the Canadian jurisprudence:

Nature of the work: if the work is unpublished, this will weigh against the defendant;³¹ in the case of confidential works (eg private letters) this will weigh more against fair dealing than the use of official reports of public importance.
How the work was obtained: if leaked or stolen it is less likely to be fair.³²
Amount taken: while the least amount taken favours fair dealing, in some cases it may be fair to reproduce an entire work (eg if the work is short, like an epitaph).³³
Uses made: the more transformative the better to favour fair dealing (eg the more that has been added by the user the better, as some have stated it pays to be long-winded).³⁴
Commercial benefit: if the work is used for a commercial benefit this will weigh against the defendant; one cannot derive a commercial benefit in research, unless there is some overriding element of public advantage.³⁵
Motives for the dealing: the courts employ an objective standard³⁶ and consider if the motive is malevolent or altruistic.³⁷
Consequences of the dealing: this factor concerns the impact of the dealing on the market of the original work especially where parties are in competition; if a new work acts as a substitute for the original this weighs against fair dealing.³⁸
Purpose achieved by different means: were alternatives to the dealing available? Courts have found no fair dealing when the written word was just as effective as actual pictures.³⁹

3 Hierarchy of Factors

While there appears to be an open list of criteria emerging, a recent case suggests that there is a hierarchy of factors. In Ashdown v Telegraph Group Ltd, a UK daily newspaper unsuccessfully claimed fair dealing in its use of confidential political material it published concerning the pending formation of the UK government.⁴⁰ While the case acknowledged Pro-Sieben's liberal interpretation of current events⁴¹ drawing from Laddie's text,⁴² the court delineated a hierarchy of factors when deciding fair dealing, in the following order:

whether there was a market substitute to the dealing (if so, fair dealing will "most certainly fail")
whether the work was published or previously exposed to public (if not, fair dealing will fail especially if the work was obtained by breach of confidence or some other underhanded way – here motive is relevant)
extent of the work taken (though a substantial part or entire work can be allowed).⁴³

The appellate court found that the copied extract enhanced the commercial value of the newspaper, increasing its readership loyalty. And while some of the matters covered in the extract had been previously disclosed in a radio interview, the extract was obtained in breach of confidence and its most important parts were taken.⁴⁴

So although the court stated that where freedom of expression is at issue, courts may need to place less weight than previously on these hierarchy of factors, and more on others such as the political importance of the contents of the work,⁴⁵ copyright won out: "We do not consider it arguable that Article 10 [of the Human Rights Act] requires that the Group [The Telegraph] should be able to profit from this use of Mr Ashdown's copyright without paying compensation." ⁴⁶ In other words, market impact (which is mindful of remunerating the author) may trump freedom of expression claims and appears to be the most important consideration.

Comparatively, in post-CCH Canada, market impact is not as important a factor (in the UK, it is the most important). Market impact in the UK is specifically vigilant of remunerating the author. Whether the work is unpublished may yield opposite results in Canada (unpublished works tend towards a finding of fairness, whereas in the UK unpublished works are not fair). The extent of the work taken is treated similarly in Canada and in the UK, in that it is not a factor of paramount importance. The public interest is critical in both jurisdictions, but interpreted as a user right in Canada and meant to account for human rights in the UK.

Notes

1 1 & 2 Geo 5 c 46 An Act to Amend and Consolidate the Law Relating to Copyright.
2 C Craig Fair Dealing and the Purposes of Copyright Protection (Queen's University Kingston, Ontario LLM Thesis August 2000).
3 L Bently and B Sherman Intellectual Property Law (2nd edn OUP Oxford 2004) 193.
4 Copyright, Designs and Patents Act 1988 c 48 as amended (UK) ("CDPA").
5 CDPA s 31 permits certain instances of incidental inclusion of copyrighted work; ss 32 - 36 provide for permitted uses for the purposes of education; ss 37-44 contain rules regarding libraries and archives; s 45 - 50 concern public administration; ss 51-53 deal with designs; sections 54-55 deal with typefaces; s 56 is about works in electronic form; ss 57- 75 contain miscellaneous provisions; and s 76 ensures the effectiveness of defences with respect to adaptations.
6 But for of current events by means of a sound recording, film, broadcast or cable programme: acknowledgement is not required: s 30(3). The purported explanation for this distinction is that on the basis that acknowledgements would unduly clutter reporting by these forms of media. A similar provision was contained in s 6(3) of the 1956 Act. Amended to give effect to Copyright and Related Rights in the Information Society 2001/29/EC art 5(3)(c) ("Information Society Directive").
7 An independent review led by Andrew Gowers, asked by the Chancellor of the Exchequer last year December, one year target met; see An independent review led by Andrew Gowers, asked by the Chancellor of the Exchequer December 2005, one year target met; Government accepted all of the recommendations the day the Review was tabled in Parliament 6 December 2006. Gowers goes against previous reports: The Whitford Report: Copyright and Designs Law, cmnd 6732 (1977) "The greater the number of special cases, the greater the scope for uncertainty [regarding the applicability of the fair dealing defence] in relation to cases not specifically dealt with." [668].
8 Gowers (n 101) Recommendation 10b (format-shifting), Recommendation 12 (parody).
9 United Kingdom Patent Office (UKPO) Interview (5 February 2007).
10 Bently (n 97) 193; see Newspaper Licensing Agency v Marks & Spencer plc [1999] EMRL 369 ("Marks & Spencer"); Pro Sieben Media AG v Carlton Television Ltd [1998] FSR 43 (CA) (Walker LJ) ("Pro Sieben") and Ashdown (n 29).
11 Defined in CDPA (n 98) s 178: as not including direct or indirect commercial purpose
12 Bently (n 97) 198.
13 Information Society Directive (n 100).
14 Bently (n 97) 198.
15 CDPA (n 98) s 29(3)(b); eg instructors could not make multiple copies of articles for their students.
16 CDPA (n 98) s 29(4)-(4A).
17 Pro Sieben (n 104).
18 [1983] FSR 545 ("Sillitoe").
19 Associated Newspapers Group Plc v News Group Ltd [1986] RPC 515 ("Associated Newspapers") 518.
20 ibid.
21 Associated Newspapers (n 113) 519.
22 Pro Sieben (n 104)625. The fact that a German television station had paid £30000 to interview a woman of multiple pregnancies was "an event of limited and ephemeral interest, but … [still] a current event".
23 "Verdict causes stir for broadcasters" (1999) The Lawyer 22, 22.
24 [1972] 1 All E.R. 1023 (CA) ("Hubbard").
25 Craig (n 96) 9.
26 Hubbard (n 118) 1027.
27 ibid.
28 Craig highlights that, with respect to the relevance of a "rival purpose", British Broadcasting Corp v British Satellite Broadcasting Ltd Times, [1991] 2 All E.R. 833 (Ch D), held that BSB's rivalry with the BBC did not necessarily take its actions outside the protection of the fair dealing defence.
29 For Megaw LJ in the context of a parish magazine reproducing a twenty word epitaph: Hubbard (n 118) 1031.
30 Ashdown (n 29) [71].
31 Hyde Park (n 22) in the case of current events.
32 Beloff v Pressdram Ltd [1973] 1 All ER 241 (Ch D) ("Beloff")
33 Hubbard (n 118) 94-95; 98.
34 D Vaver Copyright Part II (Osgoode Hall Law School Toronto 1998) 522.
35 Marks& Spencer (n 104) [257].
36 Hyde Park(n 125)[36].
37 Pro Sieben (n 104) 614.
38 Hubbard (n 118).
39 Hyde Park(n 125).
40 Ashdown (n 29) the public interest defence and freedom of expression claim were also advanced.
41 It might impinge upon the way in which the public would vote at the next general election. The 'issues' identified by the Sunday Telegraph may not themselves be 'events', but the existence of those issues may help to demonstrate the continuing public interest in a meeting two years earlier. Ashdown (n 29) [64]
42 H Laddie, P Prescott & M Vitoria The Modern Law of Copyright and Designs (3rd edn London Butterworths 200) [20.16].
43 Ashdown (n 29) [70].
44 ibid [72]-[76].
45 ibid [71].
46 ibid [82].