Thursday Law Report: Copying news cuttings breached copyright

28 January 1999 Newspaper Licensing Agency Ltd v Marks & Spencer plc Chancery Division (Lightman J) 19 January 1999
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The Independent Culture
THE COPYING of newspaper cuttings by Marks & Spencer for distribution within its organisation amounted to breach of the copyright of the Newspaper Licensing Agency in the typographical arrangement in the newspapers.

The plaintiff owned the copyright in the typographical arrangement in a large number of national and regional newspapers. The defendant made copies of cuttings from newspapers and distributed them within its organisation. The plaintiff brought proceedings seeking to establish that the defendant, by so doing, was infringing its copyright.

The defendant contended that it was entitled to make and distribute the copies on the ground that such conduct did not constitute an infringement of the plaintiff's copyright because the copying was not of a substantial part of the copyright work; and because, even if it were, it constituted fair dealing for the purposes of reporting current events within the meaning of section 30(2) of the Copyright Designs and Patents Act 1988.

Kevin Garnett QC (Herbert Smith) for the plaintiff; Michael Silverleaf QC and Mark Vanhegan (Robert Ivens) for the defendant.

Mr Justice Lightman said that the first question to be considered was whether the plaintiff was entitled to copyright in each individual article in the newspapers or only in each newspaper as a whole. If it was entitled to copyright in each article, no question could arise whether the copies made constituted substantial parts of the copyright work; the question could only arise if the copyright was confined to the newspapers as a whole.

Under the provisions of sections 1(1)(c) and 8(1) of the Copyright Act 1956, where a literary work or part of a literary work was published, copyright subsisted in the typographical arrangement of that edition or version of the work as distinguished from the typographical arrangements of other editions or versions.

In the case of a newspaper made up of a number of different articles, each separate article was a literary work and the typographical arrangement of each separate article was accordingly a copyright work. The copies of the cuttings made by the defendant were, therefore, copies of substantial parts of the works in which the plaintiff was entitled to copyright.

A defendant invoking the fair dealing defence in section 30(2) of the Copyright Designs and Patents Act 1988 had first to establish that the dealing with the copyright work was part of an exercise of "reporting current events".

Secondly, he had to establish that the way the current events were reported was in all the circumstances fair, having regard in particular to the interests of the copyright owner and how they were affected, the activity carried on by the reporter, whether the copyright owner and the reporter were in competition, the extent to which the copyright work was copied and whether the report could reasonably have been made in a manner less intrusive upon the copyright owner's rights.

It was quite clear that the cuttings circulated and distributed by the defendant went far beyond reporting current events. They included interviews; comparisons of products of other retailers; reviews; literary articles on choice of underwear; advice on matters including fashion accessories and financial matters; and personal interest stories. On no sensible basis could the copying of the cuttings fall within the scope of the defence afforded by section 30(2).

In view of that, it was also clear that the course followed by the defendant did not constitute "fair dealing". It might be that it would be impracticable for the defendant to circulate and distribute the material within the time frame it considered essential without adopting the copying procedures which it had implemented. That did not, however, mean that it was entitled to override the rights of the plaintiff. It should either adopt a method of bypassing the copyright or take the licence proffered by the plaintiff.

Kate O'Hanlon

Barrister

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