Copyright and Fair Dealing

Copyright is the element of law that protects the intellectual property of an individual or organisation. It is copyright that prevents anyone using another persons work for their own benefit without permission from the creator or rights holder. Copyright is an area of civil law, and anyone believing their rights have been breached can sue for damages. 
Copyright covers such things as music, literature, film and photographs. Undeveloped ideas, short slogans and catchphrases are not protected.

Copyright is vitally important in journalism both in protecting the work of a journalist, and dictating what journalists can use in their own work.
Without copyright law, the journalism industry could not exist, as there would be no value to the work done, as anyone could recycle it. Equally, journalism must not encroach on others copyright, and must strive to be original.

The one exception to this is 'fair dealing'. Fair dealing allows the use of part of a protected work in the interests of reporting current events. Fair dealing does not have specific limitations, but it is accepted that only a small portion of the original article should be used, and should only be used in incidents of public interest. Fair dealing can also be used in the context of a review, using a section of the reviewed work to supplement the piece. 
In all cases, anything that has been used under fair dealing must be properly attributed to the original source, and not passed off as original work. This does not apply to sport, where rights to footage is extremely expensive and cannot be used under fair dealing.

An interesting and complex area of copyright law is that of works of parody. Music, in particular, is often used without authorisation for the purposes of parodying the original work. In such circumstances, the rights of the owner are often infringed upon, but the material is changed. These situations have worked out in vastly different ways, with some such pieces of work being unaffected by the rights holder, while others have had to remove their parody pieces from publication due to claims against them.

A recent incident in this area of law happened in America. The law regarding parody is somewhat clearer in the USA, where parody is exempt from copyright law. 
A store called 'Dumb Starbucks Coffee' was opened in California, which used the Starbucks logo and trade marks, as well as providing a near identical menu. The store did not sell their products, instead giving them away for free, and claimed on its website that it was a work of parody, so as to protect itself from the famously litigious coffee chain. Situations such as this highlight interesting areas of copyright law, and in which circumstances copyrighted material can be used. 

Privilege, Qualified and Absolute.

Privilege is the legal allowance for defamatory or untrue statements to be published, protecting the publisher from any legal action.

There are two types of privilege, Qualified and Absolute.

Absolute privilege applies in court, and allows the events of a trial to be published, provided the reports are fair, accurate and contemporaneous.

Qualified privilege protects areas of public concern, such as meetings of public bodies. This provision requires reporting to be fair, accurate and without malice.

The ‘without malice’ element here is crucial. Privilege will not apply if the published material contains any malice, and so it is important that any piece published is balanced, to prevent unintended bias.  

Privilege only applies in certain circumstances within these events. For example, privilege covers what is said within the events of a council meeting, but anything said privately, either prior to or after the meeting, is not covered by privilege, and therefore may not be publishable. 

Where privilege does apply, and the guidelines are correctly followed, it is a great allowance for journalists to publish material they would not otherwise be able to, and report in detail on matters of importance. 

Defamation

Defamation is the area of law that protects individuals and organisations from having their reputation damaged by another party. This is clearly a very dangerous area for journalism, and one that requires great care navigating. Any statement that is defamatory to an individual or organisation, and is broadcast to a third party, is susceptible to a libel action.

For a libel action to succeed, one of the following criteria must be satisfied:

A person is:

- exposed to hatred, ridicule or contempt

- caused to be shunned or avoided

- lowered in the estimation of right-thinking members of society

- disparaged in his or her business, trade, office or profession.

As defamation is a civil matter, the burden of proof is lower (‘on the balance of probabilities’). Therefore, the onus is not on the claimant to prove damage has been suffered, rather the Defendant must demonstrate a successful defence. The main libel defences are as follows:

- It is true

- It is the honestly held opinion of the defendant

- The information is in the public interest

- The information is protected by privilege.

If the defendant can prove one of the above, then the claim will not be successful.

In 2013, a new defamation act was introduced, in order to tighten the law surrounding libel. This act has brought about two major developments.

The first is that, prior to suing, the defendant must prove that ‘serious harm’ has been caused. This has been introduced in an attempt to protect freedom of speech and expression, and prevent major corporations taking out lawsuits against small organisations and individuals for minor slights.

The second development is a stricter test for libel cases being heard in England and Wales as to their link to this country, preventing ‘Libel tourism’. ‘Libel tourism’ refers to bringing actions under the stricter defamation laws of England and Wales, despite the claim not originating within this jurisdiction. 

Court Reporting

When covering the courts as a journalist, there are two fundamental issues to consider: Prejudice and Contempt.

Prejudice – the publication of material that could potentially prejudice the jury in a case. Prevents the trial being fair.

Contempt – Contempt of court is a criminal offence, set out in the Contempt of Court act 1981. Publishing any information which breaches the rules of court reporting can be considered contempt.

As a criminal case is decided by a jury, it is crucial that the jury is only influenced by what is heard within the court, and not speculative or irresponsible media coverage.

Reporting restrictions for criminal offences come into effect when the case becomes ‘active’. This is when one of the following occurs:

- An arrest is made

- An arrest warrant is issued

- A summons is issued by a magistrate

- Someone is charged with the offence

Once this happens, only very basic information can be published. The case will go to a ‘pre-trial hearing’ at a magistrates court. When this happens, only the following should be reported:

- Name, age, address and occupation of the defendant(s)

- Charges faced or a short summary

- Names of magistrates and the magistrates court

- Names of Solicitors and Barristers present

- Date and location to which the case has been adjourned

- Whether legal aid was granted

- Arrangements of Bail

Once the trial proper begins, court reporting is covered by Qualified Privilege (coming up later), provided the reporting is fair, accurate and contemporaneous. This means, essentially, that anything said in court by either the prosecution or defence can be reported.