Fair Dealing and Unfair Suppression

It has all been a bit quiet around here of late, thanks in most part to the distractions of the Bar Vocational Course. I’m thoroughly enjoying it, but a steady diet of opinion-writing, drafting of particulars and preparing for advocacy has rather absorbed my time of late. However, things certainly haven’t stood still in the IT law or IP worlds, and as the final stage of the course looms distantly into view it’s time to get the blogging jacket* on again.

(*A fictitious garment I imagine as being in some way akin to a smoking jacket; I welcome suggestions as to its attributes.)

Anyway, on to law. Fair use, or fair dealing as it is more properly called in the UK, has been in the news again in respect of a dispute between radio station LBC and Ben Goldacre, writer of the Bad Science column for The Guardian and author of the associated (very good) book. As recounted here Ben Goldacre took exception to a lengthy segment of LBC presenter Jeni Barnett’s show in which she uncritically trotted out just about every ridiculous and discredited claim about the alleged link between the MMR vaccine and autism. Now, when you disagree with what someone has written you can direct people to the original article and even TV and radio features are often available via iPlayer or similar ‘listen again’ services. But LBC does not, so it seems, make its programmes so available, and so in order to protect himself against accusations that he was ‘cherry-picking’ parts of the programme, Ben Goldacre posted an audio file of all 44 minutes of the discussion, out of a total of 3 hours of Jeni Barnett’s programme.

At which point, LBC’s lawyers threatened him with an action for copyright infringment.

Now, it’s not in dispute that LBC are the rightful owners of copyright in Jeni Barnett’s programme. Similarly, Mr Goldacre has clearly made available a copy of a significant part of that programme (almost a quarter of it). So his action was clear infringement – or was it?

Section 30 of the CDPA 1988 provides for fair dealing in copyright material for purposes of criticism, review or news reporting. Ben Goldacre’s comments on the MMR programme were certainly critical, but how much of the original material was he entitled to reproduce in order to criticise it? One common complaint about fair dealing laws is that they provide no hard-and-fast rule as to what comprises reasonable use, although given the enormous variety of circumstances such borrowing can take place in, it’s almost inevitable that it has to be assessed on a case-by-case basis. Rather, we have to look at judicial guidance from cases such as Hubbard v Vosper [1972] 2 QB 84, where it was held that in matters of significant public interest then there may be good justification for extensive reproduction, especially if that is the only way that the material in question can be exposed for analysis and comment. Furthermore, in Pro Sieben Media v Carlton [1999] 1 WLR 605 the Court of Appeal held that for matters of ongoing public concern any journalistic coverage, not just pure ‘news’, may comprise reporting for the purposes of s.30 fair dealing.

Under the circumstances, where Ben Goldacre had no text or copy of the MMR segment of the programme to refer readers to, where he reasonably sought to avoid accusations of selective quotation, and where he had serious and detailed critical comment on virtually every aspect of the material in question, it seems to me that he would have had a very strong case indeed for asserting fair dealing.

As noted in this OUT-LAW podcast on the subject though, we’ll never know as Ben Goldacre has taken down the recording on the basis that he cannot afford to test the issue in court. This is understandable but unfortunate, as it means we will have to wait either for someone to be in a position to defend a test case or for legislative clarification (and given that there has just been a round of reviews of copyright exemptions, I don’t expect another one any time soon). But LBC’s victory has been an extremely hollow one, for, as described here, this row brought more publicity to a matter LBC likely wanted buried than Ben Goldacre could ever have hoped to achieve if LBC had ignored the matter. Copies and transcripts of the item abound (go and have a look, unless you suffer from high blood pressure; this level of wilfully wrong-headed arrogant ignorance is breathtaking.) To quote Robert Walker LJ in the Pro Sieben case, “an author's remedy for malicious and unjustified criticism lies (if it lies anywhere) in the law of defamation, not copyright.” To which I would add that in today’s world of blogs, wikis and torrents, attempts to suppress criticism via copyright action are all too likely to rebound, as LBC has just found out.