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Closed Facebook pages and fair dealing

Posted: Fri May 16, 2014 11:09 am
by RyanP
I want to write a blog post about the on-line activities of some people, one of whom has been very aggressive in asserting copyright over everything they have done on-line. They have a history of attempting to stifle debate and criticism of their own actions whilst making wild accusations against their critics so I suspect that their copyright assertions are partly designed to prevent people talking about them on-line.

I know that I can quote and reference things they have said in the public sphere - their publicly viewable website pages and facebook page - so long as I am observant of the rules on fair dealing and are prepared to defend myself. What I want to know is if I can publish or reference comments they have made on their own closed facebook page, which have been passed to me by people who have access to that closed page.

I also want to know if it would be considered a breach of this persons copyright (the subject) when a third party quotes, at the public AGM of a charity, examples of comments the subject has made on a closed forum that are considered evidence in support of a demand to revoke the membership of the subject because of their on-line behaviour.

In other words is it a copyright breach to stand up at a society meeting and say "So-and-So should be booted out of the society because of things she has been saying on her (closed) facebook page about the society, for example ... "

I hope my question is clear !

Thanks in advance for any advice.

Posted: Fri May 16, 2014 1:01 pm
by AndyJ
Hi Ryan,
I think we can both agree that this sort of dispute should have nothing to do with copyright, but you are right in thinking that it does.
If you were to quote verbatim this person's written comments at length, that would probably qualify as a 'performance' of the words, which is an act protected under section 19 of the Copyright Designs and Patents Act 1988:
19 Infringement by performance, showing or playing of work in public.
(1) The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work.
(2) In this Part “performance”, in relation to a work—
  • (a) includes delivery in the case of lectures, addresses, speeches and sermons, and
    (b) in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast of the work.
(3)The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film or broadcast.
(4) Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement.
unless there is a fair dealing exception which might apply.
And of course, as you point out, there is, namely the exception for criticism or review found in section 30 of the Act.
If, at the AGM, the purpose was to convey the gist of what this person had been saying on the forums or Facebook, relatively brief quotations should probably suffice, and this would satisfy the 'fair' component in fair dealing. The point of the exception is to allow criticism to be put in context, where misquoting or paraphrasing might amount to distortion of the person's words, whereas by directly quoting them, the 'new' audience at the AGM can fairly draw their own conclusions.
The second important component of the fair dealing rules is that the original work which is quoted must have been made available to the public. Here some caution is required. There is little doubt that the comments on the publicly viewable forums meet this criterion, but as the comments on Facebook appeared only to a closed group of 'friends', it is necessary to see if this group constitute 'the public'.
I don't know of a specific case which has looked at this topic in circumstances which are similar to your query, but we do have a number of pointers from other cases relating to Facebook and privacy, plus a recent decision from the Court of Justice of the European Union, (in a case called Svensson). In Svensson the CJEU distinguished between the public in general, and 'a public' that is to say a defined and finite group who although neither friends in the conventional sense nor family, nevertheless constituted a different group compared to the public in general when it came to making something available to the public. On that basis, I don't think this person's comments on their Facebook page would unequivocally constitute making them available to the public as would be required for Section 30 fair dealing, and so I would suggest that a performance of those words (or indeed making them available in written form) at the AGM might be inadvisable since this person appears to be aware of his copyright rights. However that would not preclude very short snippets of key phrases being quoted, say nothing longer than half a dozen words, which would provide the gist of what had been said on Facebook, but would fall well short of the threshold, set in another CJEU case called Infopaq where as few as 11 words could qualify as being a copyright work.
So a long answer to a relatively short question, but the detail was probably necessary to let you make the correct decision about what to say at the AGM. As I said on another recent thread here, beware of making any remarks which might amount to defamation, although if you effectively let this other person's words condemn him themselves, there is little chance of that amounting to defamation as long as you are not so selective in your choice of quotations that it amounts to distortion of what was actually written.

Posted: Fri May 16, 2014 4:21 pm
by RyanP
Thanks, that is very helpful!