What is the defence of fair dealing in copyright law?

What are the remedies for a breach of copyright?

The copyright owner will likely obtain an injunction from the High Court or county court to restrain the person from infringing his/her copyright, seek damages and obtain an order for possession of copies of any infringing material from the copyright work.

What is the defence of fair dealing?

If a copyrighted work has been made available to the public and there is sufficient acknowledgement of both the work and its author then fair dealing with a copyright work is not classed as an infringement. The exception in this defence is photographs but it does include criticism and reviews.

Is there any defence of fair dealing for the use of photographs?

Photographs are excluded from the defence of fair dealing in Section 30 of the Copyright Designs and Patents Act 1988. Often the practice of newspapers and magazine lifting exclusive photographs from other publications is widespread yet remains unlawful (Mr Justice Lightman, 1997).  

For example, in 2005 the Daily Mail cropped and published a now infamous picture of Prince Harry wearing a Nazi uniform, complete with swastika, from The Sun which led to a copyright dispute.

In 1991, however, the BBC’s copyright action against British Satellite Broadcasting was dismissed by Mr Justice Scott. The dispute was over the use of highlights from the BBC’s exclusive coverage of the World Cup finals in a sports programme on the satellite channel. Since the BBC had bought exclusive rights, it was found that the use of short clips (all accompanied by a BBC credit line) was  protected by the defence of fair dealing. British Satellite Broadcasting were not ordered to pay damages because they were found to be reporting current events.  

How does fair dealing work in pieces of criticism and reviews? 

When the purpose of the published piece is that of criticism or review, then fair dealing with a copyright work (that here include photographs) will again not be classed or treated as an infringement. This is again subject to sufficient acknowledgement of the copyright work and author in addition to the copyright work having been made available to the public. Under the umbrella of criticism and reviews comes any reporting which includes quotes from books, plays, films, broadcasts and music lyrics and so includes criticism, stories and features.  

The European Information Society Directive 2001/29/EC was implemented by way of the Copyright and Related Rights Regulations 2003 and emphasized that only works that had been lawfully made available to the public could be used for criticism or review in terms of fair dealing.  

As of 2003, then, the defence of fair dealing no longer applies to confidential material and this has been seen as a shift in favour of the author/ copyright holder. The book written by the former royal butler, Paul Burrell, which included extracts from private letters of the royal family, was published before the implementation of the directive. Burrell and his publisher were able to rely on the defence of fair dealing but, hypothetically, they would struggle now as the importance of the work being made available to the public has been specifically addressed by copyright law.  

Is it possible to cancel out the defence of fair dealing by quoting too much material?

In terms of criticism or review and the reporting of current events, it is possible to quote too much of the copyright work. If more is quoted than is necessary to make the point then this use will not come under the defence of fair dealing. A figure has not been agreed as to the proportion of a copyright work that can be fairly quoted which makes it difficult to judge – however, authors and publishers lean towards low percentages.

Is material from the Parliament and the courts subject to copyright infringement?

This subject is related to the copyright work having been made available to the public. So, reporting Parliament, the courts or public inquiries is not treated as an infringement whereas copying of a published report is not permitted.

When does the defence of fair dealing not apply?

Any dishonestly obtained material is not protected by the defence of fair dealing. In 2000 the Court of Appeal found that the use by The Sun of stills from a security video from the Villa Windsor, Paris, at the time of visit by Princess Diana and Dodi Al Fayed, was an infringement of copyright. It was found that this use could not come under either the defence of public interest or the defence of fair dealing.  

Originally, a claim for damages was rejected as it was found that The Sun were covered by fair dealing in reporting current events as the matter in question related to the mother of a future sovereign and as such must be in the public interest. The Court of Appeal, however, overturned this decision, finding that the defence of fair dealing could not apply because the information could have been made available without infringing copyright.

Lord Justice Aldous has been reported as saying:

“I do not think a fair minded and honest person would pay for the dishonestly-taken stills and publish them knowing that they had not been published or circulated when their only relevance was the fact that the Princess and Mr Dodi Al Fayed stayed only 28 minutes at the Villa Windsor – a fact that was known and did not establish that the Princess and Mr Dodi Al Fayed were not to be married.”