Fair Dealing in the Digital Environment Dr Venkat Iyer Barrister Senior Lecturer, University of Ulster Law Commissioner, Northern Ireland (UK)

Rationale  Allows for a fair balance between copyright owner’s interests and the public interest  Promotes the advancement of learning (“free flow of knowledge, ideas and information”)  Reduces transactional wastage of time and costs  Encourages competition (by preventing monopolistic behaviour by rights holders)

Purposes  research or private study of individuals;  reporting current events;  giving of professional advice; or  criticism or review. NOT for commercial exploitation (or in the ordinary course of trade)

Other conditions  Copying must be of a reasonable quantity only  Further copying is not covered  Original must have been obtained lawfully

Peculiarities of digital works  Allows for private ‘publication’ and distribution (i.e. without reliance on another, e.g. commercial, entity)  Ease of reproduction  Potential for manipulation  But allows greater control of access (e.g. through password protection)

What is ‘fair’?  Usually left deliberately vague in statute, to enable flexibility of interpretation  Largely a question of degree

Fair dealing: possible factors for consideration  the purpose of the copying  is the work in question published or not  the possibility of obtaining the work commercially at a reasonable price  the proportion of the work being copied in relation to the whole of the work  The effect of the copying on the value of, or potential market for, the work

‘Reasonable quantity’  Usually not defined prescriptively in statute  Commonsense approach adopted, coupled with guidance in secondary legislation, e.g. one chapter or 10% of the words in a published work in electronic form  Cases: - Time Warner Entertainment Ltd v. Channel 4 TV (1993) – Clockwork Orange - 8% of film, 40% (12’/30’) of the programme – held acceptable - BBC v. BSB (1992) – World Cup football – second clips replayed 4 times in news bulletins – held acceptable

Standards applied  Fairly strict, esp. where the activity in question is seen to be commercial e.g. TVNZ v. Newsmonitor Services Ltd (1993): taping of TV and radio broadcasts by a media monitor and supply of copies of transcripts to clients held not to fall under ‘private study or research’ exception, even if the recordings were destroyed within a short time because the company “neither researched nor studied anything for itself” Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. (1982): use of 75 seconds clip from 72 minute Chaplin film held not a fair use because it was ‘substantial’ and part of the ‘heart’ of the film LA News Service v. KCAL-TV Channel 9 (1997): use of 30 second clip from 4 minute videotape of beating of police brutality held not a fair use because it was commercial, took the heart of the work and impinged on the copyright owner’s ability to market the work

Standards applied  Where the matter being copied is intended to be used in a database of similar material, it is likely to fall outside fair dealing because of the increased commercial value that attaches to the copy (within the database)  It is more likely for a fair dealing defence to succeed in relation to factual works rather than fictional works (e.g. American Geophysical Union v. Texaco Inc, 1994)

Standards applied  Copying from unpublished works, or works not intended for publication, is likely to be looked at less leniently for fair dealing than copying from published works  Where a collecting society or other organisation exists which offers copies of copyrighted work under reasonable terms, fair dealing will be interpreted more strictly than otherwise  Use of copyrighted material solely to save money may defeat a fair dealing defence

Standards applied  When fair dealing is used in reporting current events, the material in question must have a real connection/relevance to the current event being reported  Any manipulation or distortion of the material used will defeat a defence of fair dealing  The material should have been obtained lawfully  Simply because a licence has been obtained for some material connected with the material being used does not validate a fair dealing defence

Standards applied  Simply because the material in question has already been published, albeit in contravention of copyright (e.g. on a website) does not mean that a fair dealing defence will succeed

Sufficiency of acknowledgement  Acknowledgement must be clear and sufficiently detailed for the reasonable viewer/listener/reader to make out the original source  It should be shown for long enough to read fully  In visual media, the acknowledgment is usually superimposed on the clip being used, but occasionally (e.g. where many clips are used), it can be made at the end  When acknowledging a broadcaster, its logo may be sufficient  Occasionally, an oral acknowledgement will do

Enforcement strategies  Watermarking and other anti- circumvention technologies and methods  Use of contractual controls by rights holders as a superior form of protection than copyright law (but note pitfalls under contract and trade practices law in relation to harsh or unreasonable business terms)  Relevance of international standards

Other issues  Need to check law in relation to use of fair dealing defence abroad – not all countries adopt the same standards  Need to be careful about use of material subject to fair dealing in trailers, etc – usually risky  Sports clips are sometimes the subject of express agreement between broadcasters (e.g. Sports Access Code, UK, allows use of these in news programmes only)

Concluding observations  ‘Reactive’ nature of copyright law – will it evolve sufficiently quickly to meet the challenges of the digital environment?  Can copyright law be fully ‘technology neutral’?  Can copyright owners succeed in putting up an effective case against the growing pressure for liberalisation of copyright law?