Alex Ferguson: stolen -- or just fairly dealt with?

"If you copy more than this, you infringe ..."

Via the IPKat's Greek friend Nikos Prentoulis (katpat!) comes this link to an article, "Telegraph journalist and ghostwriter of Sir Alex Ferguson book slams BBC for 'stealing chunks' of it - but are they in the wrong?".  The article appears on Mark's Digital Media and Tech Law and Column, the Mark in question being Mark Leiser (a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow and clearly an IP enthusiast). Anyway, this is what Mark has to say (with various Kat additions):

"The BBC ignited controversy among the sports journalism fraternity after publishing several news articles about [former Manchester United manager] Sir Alex Ferguson’s latest autobiography [My Autobiography (2013), not to be confused with Managing My Life: the Autobiography  (2000)] which lifted a significant amount of text directly from the book. Paul Hayward, the book’s ghost-writer and a sportswriter for the Telegraph, wasn’t happy about it. He tweeted:

BBC website stealing chunks of the Ferguson book direct. Scandalous. Looks to me like a complete contravention of copyright.

The article on the BBC raised questions about Intellectual Property and how much a publication can lift, without permission, before it can no longer be characterised as ‘fair dealing’. Fair dealing is the permitted allowance to copyright infringement under Sections 29 & 30 of the Copyright, Design, and Patents Act (CPDA). There are no specific guidelines in any of the journalism and press codes, but the common practice is that a journalist should take no more than is necessary to make a point.

Copying an insubstantial part of a work is acceptable under existing legal frameworks. This would fall into the ambit of fair dealing in almost all cases [Not quite: in the UK, under s.16(3) of the CDPA if it's insubstantial it isn't an infringing act in the first place: you only need to worry about fair dealing where the copying is of the whole or a substantial part]. However, there is precedent that in some cases even three or four words could be considered substantial within the context of the whole work. The CDPA does not define what will be "fair" nor does it determine limits of any kind. This is for the court to determine based on the facts of each case.

Lord Denning decided rather eloquently [in Hubbard v Vosper: see Wikipedia here.  Lord Denning's approach predates the balancing act between freedom of expression and protection of property which the European Convention on Human Rights and the UK's Human Rights Act 1998 mandate]:

“It is impossible to define what is 'fair dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair."

He added:

“Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression, as with fair comment in the law of libel so with fair dealing in the law of copyright [this throwaway comment is only intended to suggest that the assessment of what is fair is a matter of impression, whether the action is for libel -- as was also the case in Hubbard v Vosper -- or whether it is for copyright infringement; it is not intended to suggest that what is fair in the context of libel is also fair in the context of copyright]. The tribunal of fact must decide.” [This Kat thinks that nowadays 'fair dealing' is not merely a matter of impression.  Where for example the allegedly infringing work actually provides a market substitute for the work allegedly infringed, an accountant's evidence may damn the dealing as unfair]

In 1965, the Society of Authors issued guidance for publishers on what it considered an acceptable code of conduct. The Society advised that permission need not be sought for short extracts provided that the content was quoted in the context of "criticism or review" and not just to embellish the text. From fiction or non-fiction prose, the Society considered that extracts should total no more than 400 words, or 800 words if published as part of a series, but with no single extract totalling more than 300 words. While the guidance is not legally binding, it offers an indication of what the industry considers acceptable. [This Kat has a vague recollection of the 1965 guidance having been withdrawn at one time or another. Whether or not this is so, the Society of Authors' guidance is now substantially fuller: see its Quick Guide to Permissions, here]

To examine whether or not the BBC crossed the fair dealing threshold is a tedious task. If Sir Alex had given the BBC exclusive rights to significant quotes within the book, then the point is moot – as long as Sir Alex owned the copyright. [Given Sir Alex's fabled dislike of the BBC, it's hard to imagine him giving the organisation anything for free: see here and here]

Global public
sphere

The exceptions to copyright, especially fair dealing for the purpose of reporting news, are seen as crucial to serving freedom of information and the public’s right to know. Fair dealing rights are generally presumed to be some of the very few rights that belong to “the public”. Fair dealing rights ameliorate some of the power that may otherwise accrue to the media proprietor intent on controlling and censoring the news. Therefore, fair dealing exceptions to copyright are assumed to contribute to the healthy foundation of a global public sphere. What copyright law can arguably be said to do is contribute toward ‘churnalism’ [here and here] if a PR agency sends pre-approved text with substantial quotes which gives journalists guidance on what is permitted reporting. Copyright law could then be used to prevent substantial reproduction of additional material even if it was for critical analysis.

While a significant portion of the public would be interested in Sir Alex’s book, this should not to be confused with the public interest. It appears that the BBC have taken the rather mundane event of a book launch and turned it into one of the most read articles on the site. For Paul Hayward, it appears that the BBC may have violated normal business practice, but there is no clear evidence that the organisation has gone further than the doctrine of fair dealing permits".

This Kat is curious to know whether readers agree with Mark's assessment that, while the BBC may have violated normal business practice, there is no clear evidence that the organisation has gone further than the doctrine of fair dealing permits.  In this context he notes how the standard required for both European and domestic UK trade mark law is that the use of another's mark be "in accordance with honest practices in industrial or commercial matters". Can it really be said that something that violates normal business practice would still qualify as a fair dealing?

Merpel says, the most interesting thing about Sir Alex Ferguson in the context of copyright is the term of protection.  While most authors are entitled to a mere life plus 70 years, she confidently predicts that Sir Alex will enjoy protection for life plus 73 years and eight months, after the addition of Fergie time [here, here and here].