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Fair dealing - non-literal copying

 
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gardner
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PostPosted: Fri Jul 30, 2010 7:39 pm    Post subject: Fair dealing - non-literal copying Reply with quote

Is it a breach of copyright if an author summarises my very original research and my interpretation of that research without permission and fails to acknowledge where it came from? This is obviously non-literal copying and I know that if I could show that she copied a substantial part of my work I could claim damages. But I don't want to go to the expense of arguing substantiality which would probably need a court case; all I want is an acknowledgement. Do I need to prove substantiality before I can argue that fair dealing requires an acknowledgement? The copying has not been done for research and private study, nor is it for criticism and review. The old Copinger textbook that I have seems to say that for research and private study, the copying must be of a substantial part before a question of fair dealing arises. This it seems odd to me, particularly if it also applies in commercial copying, because if one can prove substantiality then fair dealing (quoting without permission but with acknowledgement) is not a defence against breach of copyright anyway. A related question that I can't find an answer to is: does fair dealing only apply to literal copying? If so, the only way to pursue non-literal copying would be to prove substantiality which would entitle me to damages, when all I want is an acknowledgement (and, to be honest, it's all that's fair because you don't want to have to pay for rights every time you summarise someone's research).
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AndyJ
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PostPosted: Sat Jul 31, 2010 8:04 am    Post subject: Reply with quote

As you have already discovered, copyright is only infringed if the work is copied literally or in substantial part. So if this other person has summarised your work in his own words he may not have infringed your copyright. Unfortunately ideas alone cannot be protected by copyright (although they can sometimes be protected by Patent law). If the other person has lifted chunks of your text and inserted them into his work, that might amount to substantial copying if the words copied embody the essence of your work. 'Substantial' can be in terms of either quantity or quality in this context. In musical terms, infringement can occur if only a recognisable motif is copied.
The fair dealing rules are a form of exception to the general protection. For the purpses of reveiw, crriticism, research of a non-commercial nature, news reporting and private study they have the effect of allowing a larger amount of the original work to be quoted before infringement is deemed to have taken place, in return for which the original author must be credited. This is known as a moral right. A failure to provide a credit removes the greater freedom of the fair dealing rules; in other words the test then falls back to the degree to which the original work has been copied. And that would seem to hang on the substantiality test in this case.
In addition to the fair dealing categories, there is a special provision in Section 60 of the Copyright Designs and Patents Act 1988 which permits abstracts of scientific and technical articles published in journals, to be reproduced in full without infringing copyright. Although I don't think this applies here, this provision omits the need to credit the author, although clearly the reason for this provision is to aid acadenic study and so a reference to the author would be required for citation purposes.
There is one other provision worth noting, although I don't think it applies here. Section 80 of the CDPA grants the right for an author's work not to be treated in a derogatory way, by mutilation, distortion or adaptation, such that the author's reputation or honour is prejudiced. However since you have not been credited as the author, it is hard to see how you could claim this right, unless your original work was widely known, and an ordinary person would recognise the second author's work as being a derogatory treatment of your work.
The redress you are seeking - to be credited as the author of the work on which the subsequent work is based - seems entirely reasonable, even if the exact letter of the law may not assist entirely you. You have the moral right to be credited. Clearly if this is all taking place within the academic world (as opposed to the commercial/industrial world) then this kind of behaviour would normally damage the reputation of the plagiarist because quoting sources is such a fundamental procedure. This may provide your best means of obtaining redress.
Because it may be hard to prove infringement of copyright - and you don't want the expense of going to court - maybe you can approach the issue from the point of view of naming and shaming the individual within his peer group if he refuses to credit you. If his work has been published in a professional journal, you could seek redress through the editor. If you are both members of a professional body, this might be another route to redress. Failing that, I suggest a strongly worded solicitor's letter might be appropriate, although that might be an expense you would wish to avoid.
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gardner
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PostPosted: Sat Jul 31, 2010 3:56 pm    Post subject: Thanks, Andy Reply with quote

That's a very detailed and useful reply, with stuff I didn't know about moral rights and Sec 80. I think I see the way forward ... thanks
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PostPosted: Thu Sep 30, 2010 12:15 pm    Post subject: Reply with quote

AndyJ
I'd like to ask you for more details on a reply you gave in July. You wrote:

"The fair dealing rules are a form of exception to the general protection. For the purpses of review, criticism, research of a non-commercial nature, news reporting and private study they have the effect of allowing a larger amount of the original work to be quoted before infringement is deemed to have taken place, in return for which the original author must be credited. This is known as a moral right."

My question is: is this 'moral right' enforceable and different from the 'fair dealing' rules of the CDPA? You do not use the word 'substantial' in the above but you seem to be saying that if the copying is not for fair dealing then a less substantial part can be copied. This would imply that if all I want is an acknowledgement then I don't have to prove so much substantiality. Is this a moral right provision rather than an IPR one? Can you point me to any authority for it? All the authorities I have seen seem to agree that substantiality must be proved before the question of fair dealing is even looked at.
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AndyJ
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PostPosted: Thu Sep 30, 2010 7:03 pm    Post subject: Reply with quote

Hi,
Just to clarify things a bit, the Copyright, Designs and Patents Act 1988 is divided into several Parts and Chapters. Part 1 deals with Copyright, while the remaining Parts deal with other aspects of Intellectual Property, eg Design right, Database right etc.
Within Part 1, Chapter 1 deals with general definitions of what qualifies for copyright, who owns it and its duration. Chapter 2 deals with the actual rights and defines what infringes these rights (either primary or secondary infringement). Chapter 3 deals with acts which are permitted in relation to copyright works, and this is where the fair dealing exemptions can be found. Chapter 4 then deals with the moral rights, which include the right to be credited as the author of a copyright work, but also other things such as the right not to have your work treated in a derogatory manner.
So coming back to your question, if someone tries to claim that his copying of your work was 'fair dealing' for the purpose of review etc, his claim would be tested under the Chapter 3 provisions. One of these provisions is that if someone quotes from a copyright work for the purposes of criticism, review or news reporting, they must credit the author. In other words they must not try and pass off the copied work as their own. This is rather different to infringement under Chapter 2, and as a result the yardstick for what amounts to 'substantial' in each case is slightly different. For example in literary criticism, it might be necessary to quote a large piece of text in order that the reader of the criticism knows the context of that criticism. Assuming that the credit to the original author is there, a court might be inclined to look more favourably at a larger quote than would be the case if plagiarism is alleged. A failure to provide a credit to the original author would in most cases undermine the fair dealing claim.
In a sense, the fact that the requirement to be credited under fairdealing is also a moral right under Chapter 4 is a slight red herring, because the argument about fair dealing is more to do with whether what the second author has done is in fact 'fair' treatment of the first author's work.
The remedies for infringement of copyright are dealt with in Chapter 6 of Part 1, whilst Section 103 (also within Chapter 6) specifically deals with infringement of moral rights as follows:
"An infringement of a right conferred by Chapter IV (moral rights) is actionable as a breach of statutory duty owed to the person entitled to the right.". So yes, it is enforcible, but as a tort of breach of statutory duty, rather than a specific offence under the CDPA. However, should you be tempted to consider that particular route there is a big hurdle: the moral right arising from Chapter 4 (as opposed to the fair dealing requirement) to be credited requires the author to assert that right beforehand. For an example take a look in any book recently published in the UK at the next page after the title page and there is likely to be an assertion statement.
You also asked about how much is 'substantial'? There is quite a lot of recent case law relating to music and films, but less on the literary side. You could take a look at:
Hawkes & Son (London) Ltd v Paramount Film Service Co Ltd (1934) 1 Ch 593
Ladbroke (Football) Ltd v William Hill (Football) Ltd (1964) 1 WLR 273, (1964) 1 AER 465, (1964) 108 SJ 135
HRH Prince of Wales v Associated Newspapers Ltd (2006) EWHC .522, (2006) ECDR 20, (2008) EMLR 3
Designers Guild Ltd v Russell Williams (Textiles) Ltd (2000) 1 WLR 2416, (2001) 1 AER 700, (2001) ECDR 10
R v Gilham (2009) EWCA Crim 2293
Michael Baigent and Richard Leigh v Randon House Group Ltd [2007] EWCA Civ 247


Afternote. If you are interested in how the American courts view this subject take a look at: Warner Bros. and J. K. Rowling vs. RDR Books http://en.wikipedia.org/wiki/Warner_Bros._and_JK_Rowling_vs._RDR_Books
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gardner
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PostPosted: Fri Oct 01, 2010 8:39 am    Post subject: Courts and copyright Reply with quote

AndyJ
Thanks for reply. I understand that I would have to prove substantiality, which is such a complex issue that I was concerned about the cost of litigation. But I am encouraged by the Baigent & Leigh v Random House at para 6 which quotes Designers Guild "the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the authorís skill and labour, tends to lie in the detail with which the basic idea is presented.Ē This implies that it will be relatively easy for me to prove substantiality, even though the copy is of only a few paragaraphs and is not verbatim, because my work copied is recognised as tremendously original and detailed and entailed a huge amount of labour and skill. So the next question is: Can I take this to County Court, possibly Small Claims track? Bear in mind it is not a monetary claim; I only want an acknowledgement..
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AndyJ
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PostPosted: Fri Oct 01, 2010 6:48 pm    Post subject: Reply with quote

Hi Gardner,
I would agree with your interpretation that the judgement in Designers Guild supports your particular case. Unfortunately Copyright cases cannot be heard in the County Courts (including the Small Claims courts), only the High Court. This not only makes it more difficult to bring a case, but is also slower and more costly, as you don't need legal representation in the Small Claims Courts. You might find it beneficial to talk to a good IP lawyer at this stage (despite the cost) as a well-constructed lawyer's letter might just be sufficient to convince your opponent that it would be cheaper just to acknowledge your work and not get dragged into potentially costly proceedings.
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AndyJ
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PostPosted: Fri Oct 01, 2010 10:34 pm    Post subject: Reply with quote

Hi Gardner.
Here's a quote from the Chancery Division guide (Chancery is a Division of the High Court):
"CHAPTER 18 - Introduction to the Specialist Work of the Chancery Division
18.1
As explained in Chapter 1 of this Guide, some
proceedings in the High Court must be brought in the
Chancery Division.
These matters include:
(1) claims for the sale, exchange or partition of land, or
the raising of charges on land;
(2) mortgage claims;
(3) claims relating to the execution of trusts;
(4) claims relating to the administration of the estates of
deceased persons;
(5) bankruptcy matters;
(6) claims for the dissolution of partnerships or the taking
of partnership or other accounts;
(7) claims for the rectification, setting aside or
cancellation of deeds or other instruments in writing;
(8 ) contentious probate business;
(9) claims relating to patents, trade marks, registered
designs, copyright or design right;
(10)claims for the appointment of a guardian of a minorís
estate;
(11)jurisdiction under the Companies Act 2006and the
Insolvency Act 1986 relating to companies;
(12)some revenue matters;
(13)claims relating to charities;"

The High Court maintains Chancery district registries at Birmingham, Bristol, Caernarfon, Cardiff, Leeds, Liverpool, Manchester, Mold, Newcastle upon Tyne and Preston, where Chancery proceedings may be initiated, so maybe this where the confusion arises in the article you saw. However the small claims courts definitely cannot deal with copyright matters. What I suspect may lay behind the case you quote (which I am not aware of) is that the respondent had been issued with an invoice for the unauthorised use of copyright material, and although the unauthorised use was admitted, the bill was not settled. This matter could then have been taken to the small claims court in order to recover the monies owed. However if the respondent had refuted the claim by denying that there had been any infringement of copyright, (and thus no fee had to be paid) then the small claims court would have been forced to refer the matter to the High Court for a decision of the infringement issue.
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gardner
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PostPosted: Sat Oct 02, 2010 7:31 am    Post subject: Reply with quote

AndyJ
I'm sure you're right, it wasn't actually a copyright claim. The plaintiff probably had a contract with the defendant which reserved copyright to the plaintiff but the defendant had republished without paying the fee due under the contract. I have deleted my previous post.
Regards, Gardner
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