How to decide if it is a fair deal

A recent High Court ruling should make those who work in the media more aware of "fair dealing" provisions, says Roger Pearson

A recent High Court case, in which Mr Justice Lloyd ruled that copyright of market-sensitive data was infringed, is likely to create waves of unrest in media circles.

London-based specialists PCR Ltd, which produces detailed and highly-sensitive reports on cocoa crops for customers dealing in cocoa beans, took on Dow Jones over its use of a report leaked to it.

According to intellectual property specialist and managing partner of Rooks Rider, Richard Walker, the ruling is "very significant".

"There is very little case law in this area and this judgment is one which goes a long way towards clarifying issues raised over 'fair dealing'," he says.

Walker, who represented PCR, says it also serves as a warning to all in the media of the need to alert their staff of copyright pitfalls. Judge Lloyd referred, in his judgment, to the fact that the reporter responsible for the offending pieces had not been given guidance from her bosses over what she could and could not use.

PCR sought damages for breach of copyright and breach of confidential information. Judge Lloyd rejected the claim in respect of breach of confidential information saying that he did not consider PCR chief Robert Fish had given sufficient indication to the Dow Jones reporter of the confidentiality of the information.

On the question of copyright it was argued that the pieces concerned were covered by fair dealing provisions, which allow reproduction of passages of copyrighted material provided that the nature and extent of the passages are not beyond what is reasonable and appropriate, and provided they are attributed to the source. It was also argued that reproduction of the material should have been permitted in the public interest.

The judge rejected both arguments. He said that too much material had been taken and that, as such, the fair dealing defence could not be used, adding that the reporter had been under no misapprehension that PCR considered its copyright was being infringed.

Judge Lloyd did not accept the argument for Dow Jones that it was in the public interest for as much information as possible about cocoa futures to be available and, as such, did away with normal copyright protection.

He also said that, taking both quality and quantity into account, a substantial part of PCR's reports had been copied, establishing the basic test of copyright infringement.

"I think this case must focus the minds of many in the media on the question of how far they can go in using material from other sources," he said.

According to Stephens Innocent partner Mark Stephens, who acted for Dow Jones, many people misunderstand the fair dealing provisions.

Stephens, who instructed Geoffrey Robertson QC and Kevin Garnett QC in the case, says: "Each case of fair dealing is judged as a matter of impression specific to the facts of the individual case. I do not really consider this case gives any further general guidance on the approach to what is and what is not fair dealing. It will now be for the Court of Appeal to re-consider the position.

"As a general point, and speaking as a newspaper lawyer who acts for seven international papers, I can tell you that this decision will not make one jot of difference to the way newspapers report the news."

An appeal against the ruling looks likely.