A COURT of Appeal decision on 17 December has caused a major stir among broadcasting companies, and is still being analysed by lawyers.
Denton Hall's Simon Levine and Neville Cordell say it has stretched the scope of the 1998 Copyright Designs and Patents Act "fair dealing" defence too far.
The decision relates to the Pro Sieben Media AG v Carlton and 20/20 case, which centres on material broadcast about Mandy Allwood, the UK woman who made headline news around the world after she became pregnant with octuplets.
Allwood instructed front-line PR man Max Clifford to act for her, and he made a deal with Pro Sieben where it agreed to pay a substantial sum for an exclusive film interview with Allwood, which was to be broadcast in Germany.
However, as a result of what is known as an "overspill in the footprint" of the satellite used by Pro Sieben, the broadcast could also be received in the south of England.
20/20, which was making a programme on chequebook journalism, learnt of this and copied the interview – which lasted nearly six minutes – off the air without Pro Sieben's knowledge or consent. It then used a 31-second extract in its programme broadcast by Carlton.
Levine and Cordell, who acted for Pro Sieben, say that, on analysis, the decision of the appeal court, which went against their client, may mean that TV companies need to take a new look at their logos to ensure that, if their material is "lifted" under the fair dealing provisions, at least they benefit from the situation.
Carlton claimed the copying was permitted under the "fair dealing" provisions of section 30 of the Copyright Designs and Patents Act 1988, which permits use of limited copyrighted material for the purposes of criticism or review (provided the source is attributed), and reporting current events.
Pro Sieben won its case in the High Court, where Mr Justice Laddie held that 20/20 had not used the interview extract for the purposes permitted by the Act, and that a faint Pro Sieben logo (used as a station identifier) at the top of the screen was insufficient identification of the origin.
Now, the Court of Appeal has overturned the High Court ruling. The court unanimously held that the copying and use had been for the purpose of criticism, or review and reporting of current events, and that the screen logo, though faint, was sufficient acknowledgement.
Levine says the decision is one which lays down guidelines for the future.
"The Court of Appeal applied a liberal approach to what amounts to a criticism, or review and reporting of current events, and expressly referred to the fact that these sections were geared towards allowing freedom of speech.
"In reaching its decision, the court appears to have derogated from the rights of the copyright owner, with potentially far reaching consequences."
Cordell says: "The reporting of current events was widely believed to be concerned with the reporting of news. The Court of Appeal held that the defence extends to the reporting of events which are of limited and ephemeral interest.
"If such an extension is to be allowed, it is regrettable that the appeal court did not take the opportunity to define more precisely the boundaries of what amounts to a criticism or review, or a current event."
Quite apart from the main thrust of the ruling, Levine says that it raises another point that TV companies may now wish to consider in respect of their logos.
If a station identifier at the top of a screen is to be regarded as sufficient acknowledgement of the origin of a lifted extract of a broadcast, then "television companies may wish to examine their use of logos to ensure they derive at least some benefit should their work be used in the way that happened here".