What is the defence of fair dealing in copyright law?

The Copyright, Designs and Patents Act 1988 gives the creators of literary, dramatic, musical and artistic works the right to control the ways in which their material may be used. If someone infringes this right, the copyright owner can 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.

Photographs are excluded from the defence of fair dealing in s 30 of the Copyright Designs and Patents Act 1988. The practice of newspapers and magazine lifting exclusive photographs from other publications is widespread yet remains unlawful.  

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 the use of short clips (all accompanied by a BBC credit line) was protected by the defence of fair dealing. BSB was 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, fair dealing with a copyright work will not be classed or treated as an infringement. This is subject to sufficient acknowledgement of the copyright work and author and the copyright work must have been made available to the public – the publication of confidential material would not benefit from this defence.

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.  

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, 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.

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 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 was covered by fair dealing in reporting current events as the matter in question related to the mother of a future sovereign and was therefore 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.

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.