Pro Sieben Media AG v Carlton UK Television Ltd

The fair dealing defences in section 30 of the Copyright Designs and Patent Act 1988 require an assessment of the derivative work in its context. The user’s subjective belief is insufficient. The court must consider the work’s likely impact and whether it is genuinely made for criticism, review, or reporting current events.

Criticism may address a work’s ideas and social implications. A work may also be criticised as part of a wider genre. Fairness is a matter of degree, including the amount taken, commercial competition with the copyright owner, and the genuineness of the critical purpose. A customary logo may be a sufficient acknowledgement of a corporate author under section 178.

The defendants broadcast a current-affairs programme about cheque-book journalism. It included a 30-second extract from the claimant’s German television programme, which contained an exclusive interview with Mandy Allwood and her partner.

Laddie J held that the defendants had infringed copyright. He rejected defences of fair dealing for criticism or review under section 30(1), and for reporting current events under section 30(2), of the Copyright Designs and Patent Act 1988. He also held that the on-screen title and logo did not provide a sufficient acknowledgement.

The defendants appealed. The central issues were whether the programme used the extract for a statutory purpose, whether the dealing was fair, and whether the logo identified the claimant as author.

1. Appeal allowed unanimously. Lord Justice Robert Walker, with whom Lord Justices Henry and Nourse agreed, held that the judge had erred in principle by concentrating too heavily on the makers’ actual intentions and motives, and too little on the programme’s likely impact on its audience. Applying the appellate approach approved in Re Grayan Building Services [1995] Ch 241, that error justified appellate intervention.
2. The phrase for the purpose of in section 30 should be read as part of a composite statutory expression. It does not make the user’s sincere but misguided belief decisive. Intention and motive remain highly relevant to whether the dealing is fair.
3. The programme was genuinely made to criticise cheque-book journalism and the recent media treatment of the multiple pregnancy. That criticism could extend beyond style to the ideas and social implications of the works, and could treat the claimant’s report as part of the genre criticised. The extract was therefore used for criticism or review within section 30(1).
4. The dealing was fair. The extract was short, contained little of the interview’s substance, did not compete realistically with the claimant’s exploitation of its exclusive rights, and was not a device to disguise copyright exploitation as criticism. The on-screen TAFF title and the claimant’s customary stylised 7 logo sufficiently identified the work and its corporate author under section 178.
5. The unauthorised copy of the whole report was, on the balance of probabilities, made solely to permit selection of the extract. It was therefore made for the same ultimate statutory purpose. The court also held, as an alternative ground, that the defence under section 30(2) succeeded: both the pregnancy and the media coverage, including the sale of the interview to German television, were current events, and the use was fair.

The judge’s order was discharged and the action dismissed.

• Court of Appeal (Civil Division): Allowed the defendants’ appeal, discharged the trial judge’s order, and dismissed the action: [1999] 1 WLR 605.
• High Court, Chancery Division: On 31 July 1997, Laddie J held that the defendants infringed copyright and rejected their section 30 fair dealing defences.