Friday Law Report: Sincere belief is insufficient defence

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The Independent Culture
22 January 1999

Pro Sieben Media AG v Carlton UK Television Ltd and another

Court of Appeal (Lord Justice Nourse, Lord Justice Henry and Lord Justice Robert Walker) 17 December 1998

IN DECIDING whether the defence of fair dealing under section 30(1) or (2) of the Copyright Designs and Patents Act 1988 had been made out, it was not enough for the user of the material to have the sincere belief, however misguided, that he or she was criticising a work or reporting current affairs.

The Court of Appeal allowed Carlton Television's appeal against a decision that it had infringed the copyright of Pro Sieben Media AG.

The plaintiff, a German television company, claimed that the defendants had infringed its copyrights by including in one of its programmes a 30- second extract from a German television programme, which had been broadcast by the plaintiff in a magazine programme called TAFF.

The plaintiff's programme was about Mandy Allwood, who was pregnant with eight live embryos as a result of fertility treatment. The plaintiff had made an agreement with Max Clifford, Ms Allwood's public relations consultant, giving it the exclusive right to broadcast an interview with Ms Allwood in Germany.

The defendants' programme was directed at, and critical of, chequebook journalism. The extract from the plaintiff's programme was shown with the name TAFF appearing prominently in the bottom right-hand corner of the picture, and, less prominently, the plaintiff's logo, a stylised figure 7, in the top right-hand corner.

The judge decided that the defendants had failed to discharge the onus of proving that the extract had been included in their programme for the purpose of criticism or review within section 30(1) of the Copyright Designs and Patents Act 1988, and that there had been insufficient acknowledgement.

He further concluded that the use of the extract by the defendants was not for the purpose of reporting the "minor but newsworthy event" that Max Clifford had sold an interview with Ms Allwood to German television, within section 30(2), but that if he were wrong about that, he was in no doubt that the use made of the extract was not fair in all the circumstances. The defendants appealed.

Martin Howe QC and Charlotte May (Denton Hall) for the plaintiff; Michael Silverleaf QC and Mark Vanhegan (Henry Hepworth) for the defendants.

Lord Justice Robert Walker said that the intentions and motives of the user of another's copyright material were relevant for the purposes of the defences available under section 30(1) and (2), particularly on the issue of fair dealing, so far as it could be treated as a discrete issue.

It was not necessary, however, for the court to put itself in the shoes of the infringer of the copyright in order to decide whether the offending piece was published "for the purposes of criticism or review", and it should not give any encouragement to the notion that all that was required was for the user to have the sincere belief, however misguided, that he or she was criticising a work or reporting current affairs.

The judge had erred in principle in focusing too much on the actual purposes, intentions and motives of those involved in the planning and production of the defendants' programme, and in focusing too little on the likely impact on the audience. The programme had been made for the purpose of criticism of works of chequebook journalism in general, and in particular the then very recent treatment by the media of the story.

The use of the extract was fair dealing within section 30(1) of the Act, and the transmission of the plaintiff's logo had, in the circumstances, constituted sufficient acknowledgement. The defence under section 30(1) of the Act accordingly succeeded.

Furthermore, Ms Allwood's multiple pregnancy, its pro-gress and its eventual outcome were on any view current events of real interest to the public, and the fact that Max Clifford had sold an interview to German television, albeit of limited and ephemeral interest, was also a current event. The defence under section 30(2) would, therefore, also succeed.