7E Channel 4 : Guide to the Law of Fair Dealing – Channel 4 & Five : 7E Channel 4 : Guide to the Law of Fair Dealing

7E Channel 4 : Guide to the Law of Fair Dealing – Channel 4 & Five

Guide to the Law of Fair Dealing - Channel 4 & Five

This note is intended as a guide only and legal advice from Channel 4's or Five's legal and compliance department must be sought at an early stage.

What is Fair Dealing?

‘Fair Dealing' is a term, which describes the circumstances in which copyright works or extracts from them, can be used, without permission from or payment to the copyright owner.
If a copyright work is legitimately used under the ‘fair dealing' provisions it is not necessary to clear any underlying rights in the work, e.g. if ‘fair dealing' a clip from the film Titanic it would not be necessary to clear the soundtrack contained in the clip of the film used.
Outside of the news, the most common type of ‘fair dealing' when making television programmes involves the use of ‘clips' e.g. of television programmes, films, advertisements and music videos. Although ‘clips' are referred to throughout this note all copyright works e.g. literary, dramatic, musical and photographic, are covered. However photographs cannot be used for the purposes of reporting a current event.
‘Fair Dealing' cannot and must not be used as a means of saving money on your budget for clips. The defence will automatically fail and you will be liable for copyright infringement if it is established that you have used ‘fair dealing' simply to save money.
‘Fair Dealing' is only a defence to copyright infringement in the UK. It will not be suitable for programmes that are to be sold or broadcast overseas, for example if your programme is a co-production with a foreign broadcaster or is to be made available via the web. Specific advice in the jurisdiction(s) to which sale is planned is required where a programme containing fair dealing is to be broadcast outside the UK.
Any material that has been ‘fair dealt' in the programme cannot be included in any programme trails or publicity material, except in exceptional circumstances.

How does it Work?

Section 30 of the Copyright, Designs and Patents Act 1988 (as amended by the Copyright and Related Rights Regulations 2003) sets out the conditions that must be met to legitimately ‘fair deal' a copyright work.
There are two forms of fair dealing set out under section 30: -
- for the purpose of reporting current events; and,
- for the purpose of criticism or review.

A: Fair dealing for the purpose of reporting current events

Photographs are excluded under this limb but can be ‘fair dealt' for the purposes of criticism or review (see below).
Sports material is excluded. The latter is regulated under an agreement between the main broadcasters called The Sports Access Code, which allows certain clips
to be used in regularly scheduled news programmes only.
There are two ways of using copyright material under this limb:
- to report the actual current event in question; or
- to give "old" pictures that required "currency".

The most common use of fair dealing under this limb is to report the actual current event. For example a news report on the Oscars Ceremony might use a clip taken from a US broadcaster's coverage of the awards, to report the fact of the winner for Best Performance by an Actor in a Leading Role.
What constitutes a current event will depend on the currency of the event and whether it is genuinely newsworthy.
The clip being used needs to have some direct relevance to the current event being reported and not just a tenuous connection.
For example the Oscars Ceremony may only have currency for up to 24 hours after the announcement of the winners. However a US broadcaster's footage of the devastation caused by a major natural disaster might well last longer as part of ongoing news coverage into the plight of the hurricane victims
Clips can also be used under this limb to give ‘currency' to ‘old' pictures. For example a clip of the Oscars Ceremony announcing the Lifetime Achievement award, which included the actor talking about living just long enough to win the award or a clip of an old film he had appeared in, could be used some months later to report the same actor's untimely death.
Take for example the wedding of Prince Charles to Camilla Parker-Bowles. That current event can be reported contemporaneously under ‘fair dealing' by the use of any of the following clips:

(a) Prince Charles and Camilla inspecting the Guildhall in the run up to the wedding;

(b) Clarence House's official announcement of the engagement of the couple;

(d) Lord Falconer's comments on the legality of the wedding.

However it would not be ‘fair dealing' for the purpose of reporting the above current event to show clips of:

(a) The wedding of Prince Charles to Lady Diana Spencer; or

(b) Prince Charles' gaffe (regarding his dislike of a BBC reporter) in front of reporters whilst on his annual skiing trip with Princes William and Harry; or

B: Fair dealing for the purpose of criticism or review

The use of ‘fair dealing' under this limb should generally be restricted to situations where permission to use copyright material would be or has been refused or where unreasonable restrictions have been placed on its use. It is most commonly used where the subject of a programme is unlikely to like the way in which they are portrayed, for example a biography programme of an actor which is critical of them and with which they have not co-operated.
It is an essential prerequisite to ‘fair dealing' for the purpose of criticism or review that the copyright work has been previously published. For example, by means of an authorised performance, exhibition, playing or showing of the work in public. If the copyright work is unpublished it cannot be fair dealt under the criticism or review limb.
The clip being used needs to be directly relevant to the critique or review being undertaken and not just have a tenuous connection.
Clips cannot be used simply as "wallpaper", e.g. as a sting, in a title sequence, start or end of part reprise, tease, fast- cut montage or as a backdrop.
In deciding whether clips have be used for the purpose of criticism or review, the Court will consider the programme's likely impact on its audience and what a reasonable viewer would understand to be the purpose of including the material.
Fair dealing for the purpose of criticism or review has to be the genuine purpose of the use. Dressing up the infringement of another's copyright in the guise of criticism or review is not ‘fair dealing' and your defence will fail. There are two ways to use relevant clips:
- (a) in the context of reviewing/criticising the clip itself - e.g. use of clips of a music video to illustrate how well/badly the artist performed in it; or how it was directed.
- (b) in the context of some other relevant criticism, such as of a theme or philosophy behind a work: e.g. use of clips from the film A Clockwork Orange in the context of criticising the treatment of violence in the film and whether it was a justifiable reason for the decision of director Stanley Kubrick not to release it in the UK (‘the Clockwork Orange case')¹ or, e.g. to show an advertisement, or a clip from it, criticising the exploitation of children by a burger chain, by reference to the way the advertising deliberately appeals to children.

The criticism or review may be in the form of an interviewee's sync, voice over, commentary or text on screen provided the critique or review is pertinent and not unduly lengthy (see below). The criticism or review can run before, after or concurrent with the clip being used.
While you are free to edit the clips fairly to accompany the critique or review, you must not manipulate the clips e.g. by adding in comic or special effects. The use of slow motion may be acceptable where it is essential to the point being made.
Where you plan to rely on an interviewee talking about the clip, it always helpful to ensure that you show them the actual clips beforehand to ensure that their comments are specific and relevant to the actual clips used.

¹ Time Warner took legal action against Channel 4 to prevent clips from the film A Clockwork Orange, which it owned, being used in a programme critique. Time Warner failed and the programme was broadcast. This was the first case to test the ‘fair dealing' legislation (for the purposes of criticism and review) and laid down the guiding principles.

What is a sufficient acknowledgement?

An essential condition of using part of a copyright work whether for the purpose of reporting a current event or for the purpose of criticism or review, that there
is a sufficient acknowledgement to the author and title of the work. The required acknowledgment is usually supered on the screen when the clip is shown but, in some cases, it may be sufficient to put the acknowledgement in a list in the end credits of the programme, for example where you are using a large number of clips.
- Literary Works: The author e.g. ‘Harry Potter and the Goblet of Fire'/J K Rowling
- Dramatic Works: The writer e.g. ‘A Few Good Men'/Aaron Sorkin
- Music: Music composer and lyricist if applicable e.g. ‘Yesterday'/Lennon and McCartney
- Music Video: The artist, lyricist, composer, record company, and director e.g. ‘Angels'/Robbie Williams/ R. Williams & G. Chambers /EMI Music
- Art:The artist e.g. ‘My Bed'/ Tracy Emin
- Photographs: The photographer e.g. ‘Princess Diana'/Mario Testino
- Film: The studio, producer and principal director e.g. ‘A Clockwork Orange'/Warner Brothers Inc./Polaris Productions Inc./Stanley Kubrick
- Broadcasts: The Broadcaster and Production Company e.g. ‘Big Brother 6'/Channel 4/Endemol Productions
- Advertisement: The advertising agency and the production company e.g. ‘Mr Kipling-Delivery'/Saatchi & Saatchi/ David Lodge

The Courts have held that the where a clip features an on screen broadcaster's logo this was sufficient to identify the broadcaster as the author of the work, in spite of the fact that the broadcaster was not named in an on screen aston.
The Courts have also held that oral statements that accompany the clip, e.g. an interviewee's sync, which acknowledges the author, would equally constitute a sufficient acknowledgement.
The acknowledgement must be large enough to be legible and on screen long enough for viewers to be able to identify the title and author of the work.

How do I get hold of the copyright work?

The sourcing of the copyright work must be fair. You must not obtain it in any unlawful, devious or underhand way e.g. obtaining preview tapes from a copyright owner by pretending that you intend to licence clips.
If you have already signed a licence or if you have already begun negotiating a licence or licence fee you may have created a contractual relationship where
it would not be possible to ‘fair deal'. In such circumstances you must seek immediate advice from The Legal and Compliance Department.
In the Clockwork Orange case, a laser disc of the film was legitimately purchased in Paris and then brought to the UK and transferred to BETA. This was deemed by the Court to be a fair method of obtaining the material. Similarly, recording material off-air would be deemed to be acceptable.
Whether or not material of broadcast quality is available legitimately, will clearly affect the prospect of being able to ‘fair deal' it. If you cannot access the material fairly, you will not be able to use the ‘fair dealing' provisions.
A published copy of a work which infringes the owner's copyright will not be a legitimate source e.g. an unauthorised copy on a website.

How much of the copyright work am I allowed to use?

You are only permitted to use a ‘fair' amount of the copyright work.
As a guide the clips should not be unreasonably long or frequent in use. Each clip must be justified in terms of its duration and its relevancy to the critique, review or current event being reported.
In the Clockwork Orange case the programme consisted of a total of 12' of clips from the movie in a 30' programme. The Court accepted that one could not do justice to a review of the film unless one showed a number of clips from it.

Do I need to inform the copyright owner before transmission?

Sometimes, as a matter of policy, we may want to inform a rights holder that we are intending to use clips of their material under ‘fair dealing' before transmission. However, this is only rarely the case and you should check with a member of the Legal & Compliance Department before contacting rights holders to inform them of your intention to ‘fair deal' material.
If you plan to ‘fair deal' any Channel 4 or Five purchased programmes or films, you must ensure that your commissioning editor is made aware as soon as possible, as this may give rise to potentially sensitive commercial issues. This is not intended to restrict your right to legitimately ‘fair deal' but to ensure that it does not compromise the broadcasters' relationships with suppliers.

Independent Producer Handbook

Main Navigation: