Last
month News Group was found guilty of infringing copyright on the cover
of IPC’s What’s on TV and ordered to pay damages to the magazine group.
Its offence? The Sun had published an advertisement which included
pictures of the front cover of an edition of IPC’s listings magazine,
the front cover of its rival TV Choice and the front cover of The Sun’s
own new TV listings magazine. But ragouts and front covers of rival
publications readily appear scattered across the press – not least in
the pages of this paper. So what was the problem?
Every reader of
Press Gazette will know that copyright subsists in the arrangement of a
cover not only in a story or a photograph. Common fallacies abound –
otherwise experienced journalists still believe that “if you take fewer
than 30 words that’s okay – isn’t it?” But primarily ragouts and covers
are reproduced without permission on one of two bases: either that the
amount reproduced (in the case of ragouts)n is not a “substantial part”
– either quantitatively or qualitatively – of the original piece or
that the reproduction (in the case of the whole cover) is either for
“reporting current events” or for “the purposes of criticism and
review” – what are commonly known as the “fair dealing” defences under
S.30(1) and S.30(2) of the Copyright Designs and Patents Act 1988.
Fair
dealing with a copyright work for the purpose of criticism and review
or for reporting current events does not infringe copyright if it is
accompanied by a sufficient acknowledgement (ie, identifies the
copyright owner). The current events exemption does not apply to
photographs.
News Group argued that it had a fair dealing
defence, because by comparing the three magazines, it was “criticising
and reviewing”
Related
IPC’s product. But this line of argument was never
likely to succeed. It is well established that to fall under the
“criticism and review” exemption you have to criticise/review the
copyright work – in this case the cover – itself, not the product.
A
comparison of the design merits of the covers of each of the magazines
would have been fine: a comparison of the products – the contents of
the listings magazines – was not. The judge held that The Sun was
copying the cover of What’s on TV to advance its own competing purposes
at IPC’s expense.
The judge said that if The Sun had a legitimate
criticism of the contents of What’s on TV, it could have made its
points without reproducing the cover and infringing IPC’s copyright.
While using the image made the advertisement more powerful, it was not
a legitimate use of someone else’s copyright work. The Sun could have
achieved its purpose by naming its rival’s magazines, and the “fair
dealing” defence could not be relied on. IPC was awarded summary
judgement.
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The most important factor that a court will consider
when assessing whether or not the fair dealing defence applies is
whether in the circumstances there is commercial competition with the
copyright owner’s work.
There is no hard-and-fast definition of
what is “fair dealing”, but the more obviously self-serving the use,
the less likely it is that the defence will succeed.
Caroline Kean, Head of Litigation, Wiggin & Co
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