Friday Law Report: Sincere belief is insufficient defence

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.

Have you tried new the Independent Digital Edition apps?
Arts and Entertainment

ebooksNow available in paperback
Arts and Entertainment

ebooks
Arts and Entertainment

film
Arts and Entertainment
Chvrches lead singer Lauren Mayberry in the band's new video 'Leave a Trace'

music
Arts and Entertainment

music
Arts and Entertainment
Home on the raunch: George Bisset (Aneurin Barnard), Lady Seymour Worsley (Natalie Dormer) and Richard Worsley (Shaun Evans)

TV review
Arts and Entertainment

TV
Arts and Entertainment
Strictly Come Dancing was watched by 6.9m viewers

Strictly
Arts and Entertainment
NWA biopic Straight Outta Compton

film
Arts and Entertainment
Natalie Dormer as Margaery Tyrell and Lena Headey as Cersei Lannister in Game of Thrones

Game of Thrones
Arts and Entertainment
New book 'The Rabbit Who Wants To Fall Asleep' by Carl-Johan Forssen Ehrlin

books
Arts and Entertainment
Calvi is not afraid of exploring the deep stuff: loneliness, anxiety, identity, reinvention
music
Arts and Entertainment
Edinburgh solo performers Neil James and Jessica Sherr
comedy
Arts and Entertainment
If a deal to buy tBeats, founded by hip-hop star Dr Dre (pictured) and music producer Jimmy Iovine went through, it would be Apple’s biggest ever acquisition

album review
Arts and Entertainment
Paloma Faith is joining The Voice as a new coach

TV
Arts and Entertainment
Dowton Abbey has been pulling in 'telly tourists', who are visiting Highclere House in Berkshire

TV
Arts and Entertainment

TV
Arts and Entertainment
Patriot games: Vic Reeves featured in ‘Very British Problems’
TV review
Arts and Entertainment
film review
Arts and Entertainment
Summer nights: ‘Wet Hot American Summer: First Day of Camp’
TVBut what do we Brits really know about them?
Arts and Entertainment
Dr Michael Mosley is a game presenter

TV review
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES

ES Rentals

    Independent Dating
    and  

    By clicking 'Search' you
    are agreeing to our
    Terms of Use.

    A nap a day could save your life - and here's why

    A nap a day could save your life

    A midday nap is 'associated with reduced blood pressure'
    If men are so obsessed by sex, why do they clam up when confronted with the grisly realities?

    If men are so obsessed by sex...

    ...why do they clam up when confronted with the grisly realities?
    The comedy titans of Avalon on their attempt to save BBC3

    Jon Thoday and Richard Allen-Turner

    The comedy titans of Avalon on their attempt to save BBC3
    The bathing machine is back... but with a difference

    Rolling in the deep

    The bathing machine is back but with a difference
    Part-privatised tests, new age limits, driverless cars: Tories plot motoring revolution

    Conservatives plot a motoring revolution

    Draft report reveals biggest reform to regulations since driving test introduced in 1935
    The Silk Roads that trace civilisation: Long before the West rose to power, Asian pathways were connecting peoples and places

    The Silk Roads that trace civilisation

    Long before the West rose to power, Asian pathways were connecting peoples and places
    House of Lords: Outcry as donors, fixers and MPs caught up in expenses scandal are ennobled

    The honours that shame Britain

    Outcry as donors, fixers and MPs caught up in expenses scandal are ennobled
    When it comes to street harassment, we need to talk about race

    'When it comes to street harassment, we need to talk about race'

    Why are black men living the stereotypes and why are we letting them get away with it?
    International Tap Festival: Forget Fred Astaire and Ginger Rogers - this dancing is improvised, spontaneous and rhythmic

    International Tap Festival comes to the UK

    Forget Fred Astaire and Ginger Rogers - this dancing is improvised, spontaneous and rhythmic
    War with Isis: Is Turkey's buffer zone in Syria a matter of self-defence – or just anti-Kurd?

    Turkey's buffer zone in Syria: self-defence – or just anti-Kurd?

    Ankara accused of exacerbating racial division by allowing Turkmen minority to cross the border
    Doris Lessing: Acclaimed novelist was kept under MI5 observation for 18 years, newly released papers show

    'A subversive brothel keeper and Communist'

    Acclaimed novelist Doris Lessing was kept under MI5 observation for 18 years, newly released papers show
    Big Blue Live: BBC's Springwatch offshoot swaps back gardens for California's Monterey Bay

    BBC heads to the Californian coast

    The Big Blue Live crew is preparing for the first of three episodes on Sunday night, filming from boats, planes and an aquarium studio
    Austin Bidwell: The Victorian fraudster who shook the Bank of England with the most daring forgery the world had known

    Victorian fraudster who shook the Bank of England

    Conman Austin Bidwell. was a heartless cad who carried out the most daring forgery the world had known
    Car hacking scandal: Security designed to stop thieves hot-wiring almost every modern motor has been cracked

    Car hacking scandal

    Security designed to stop thieves hot-wiring almost every modern motor has been cracked
    10 best placemats

    Take your seat: 10 best placemats

    Protect your table and dine in style with a bold new accessory