02/12/14

Quoting news if you please

The UK law on when itís OK to quote other peopleís work changed on 1 October. Worryingly, the provisions on "quoting" photographs are unclear to us. And there are early signs of chancers using the new provision on "parody". We plan to update this advice on what itís OK for you to quote - but first we need your reports of how the new law is being applied, to your work or to othersí. Please. None of the following is wrong as a result of the changes to the law, as far as we can see.

A few things you should know about quoting

So you've understood the basics of copyright in your own work: see A few things you should know about copyright. Now you want to know when it's OK to use other people's work.

Maybe you've just been commissioned for a rush "cuttings job" biography. Of course we couldn't possibly recommend anything other than thorough original research and talking to sources directly... but these things happen. And the rules setting out what you can do are surrounded by enough urban legends to build an edifice of ghost law.

We have highlighted some of the terms you may come across in discussion.

0Copyright exists in words and pictures and sounds - not in facts or ideas, but in their expression. So it is in general OK to read a source document, understand it, and write what it says in different words.

1There are no "magic numbers". There is no rule about quoting 3 per cent being OK; there is no rule about quoting 23 words, or four notes, or any specific amount.

All this briefing has to say about "quoting" pictures is: always get a licence. The exceptions are usually an issue for broadcasters' lawyers, very rarely for journalists.

2Copyright in interviews likely belongs to the person who recorded them and/or wrote them up. As one broadcasting lawyer says: at the least, if you point a microphone at someone and they answer your questions, they give you an implied licence to use their words. But if the interview was recorded in the course of employment, or the interviewer gave in to a rights-grab, it belongs to the publisher or broadcaster.

3Don't be bullied. Spin doctors and PRs for music and film stars may sometimes make threatening noises about something being absolutely protected by copyright when they're desperate to suppress it. UK law is clear that if what their client/puppet said is a matter of genuine public concern, it can and should be quoted.

4Attributing quotes - saying who and where you got them from - is a good idea, and courteous. You'd want other journalists to do it when they lift your quotes. The law encourages attribution, and requires it when, for example, you quote a book in a review. Doing so may make people less likely to think "lawyer!" But doing so does not, by itself, stop the use you make of the material being a breach of copyright.

5The main legal test in the UK is whether the amount you quote diminishes the market value of the original. After all, that's what's going to impel someone to sue. So, like everything else in the US/UK "common law" system, an awful lot the decision on the amount of damage depends on what the judge had for breakfast, if it goes to court.

This is called the fair dealing test in UK law, which specifically defines the purposes for which you can quote. The relevant exceptions to the copyright in the material you quote are quite clearly defined. They allow you to use quotes for the purposes of reporting news and current affairs, or of criticism and review. The news exception does not allow you to use photographs.

The US concept of fair use does not apply anywhere outside the US. (It is loosely defined: everything depends on the judge, if it goes to court.)

6There may be no copyright in facts, but in the UK there most certainly is in collections of facts, particularly trainspottery collections of facts like bands' gig lists and, er, locomotive numbers. Mentioning that locomotive D666 was scrapped on Friday 13 June 1997, or that the Dead Goths played Dunstable on that dread day, is OK. Reproduce a significant chunk of the list, and you're in trouble. Reproduce it complete with mistakes, and you have no defence.

7You're on much rockier ground with unpublished material than with, say, borrowing quotes from published interviews. The law on confidentiality may be more relevant than copyright. If you're quoting from correspondence that fell into your hands, for example, you need to ask whether a court would find that what you do is in the public interest - and not just interesting to the public.

8Be particularly careful with material by people outside the UK. Most have stronger rights than authors do in the UK. French and German authors, for example, have an absolute right to be credited and could in theory drag you over to French or German courts for forgetting to identify them.

9It is a very, very bad idea indeed to sign a contract indemnifying a publisher or broadcaster against legal fall-out from your work. That means that if you foul up - or, in some contracts, even if they foul up in the editing process - you pay. Bye-bye house! It is anyway a good idea to look into getting the professional indemnity insurance that the NUJ offers for members.

What if this doesn't answer your question? Probably, then, your question was "and what is the magic rule?" And, once more, the answer is: there isn't one. There isn't even much legal precedent in the UK. It's a judgement call.

Had your idea ripped off?

So you're annoyed that your story has been written up by other papers? Once more, with feeling: there is no copyright in the story itself - it's all facts (and ideas). If they have not ripped off a substantial part of your words, grin and bear it. Anyone who re-interviews your sources can use the new interviews.

And if a publisher or broadcaster has ripped off your story or programme proposal, that's a matter of confidentiality, not copyright. See the Code of Practice for Submission of Programme Proposals developed by our sister union BECTU.

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Last modified: 07 Jun 2012 - © 2001-2012 Mike Holderness
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