Fair dealing

'Is it legal', 'can I do this' type questions and discussions.
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ehd
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Fair dealing

Post by ehd »

I am building a website that reviews 20 UK websites that provide a particular type of service in the UK. About half of these have a rating on Trustpilot. I would like to include the Trustpilot ratings as part of the critcal review of each website. Can I do this?

GOV.UK (https://www.gov.uk/using-somebody-elses ... /copyright) outlines fair dealing for the purpose of criticism as an exception to copyright.

The UK Copyright Service (https://copyrightservice.co.uk/copyrigh ... _of_others) identifies the potential permissions - see text between ***s. I have marked how my website would handle this between [] brackets.

***

Quoting parts of a work for the purpose of criticism or review is permitted provided that:

The work has been made available to the public. [Trustpilot ratings are public]
The source of the material is acknowledged. [the source would be acknowledged by its very nature]
The material quoted must be accompanied by some actual discussion or assessment (to warrant the criticism or review classification). [this would form one, small part of an overall review and could be discussed in the context of the service website review]
The amount of the material quoted is no more than is necessary for the purpose of the review. [its just the rating that would be quoted]

***

Do you think use of the criticism exception enables fair use/fair dealing applies in this example when the material on Truspilot is used to criticise a limited number of other websites.
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AndyJ
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Re: Fair dealing

Post by AndyJ »

Hi ehd,

It is worth stating that you may also need to consider something called database right as well as copyright for what you propose. More on that later. There may also be data processing implications involved, depending on the level of detail in what you would like to use from Trustpilot.

Copyright. The first place we need to look at is the Trustpilot website to see what the company's terms and conditions say. The relevant part is section 3 entitled 'Rights' and reads as follows:
3.1 The content on the Website, including but not limited to the intellectual property rights, text, characteristics, graphics, icons, photos, calculations, references and software, is the property of Trustpilot or a third party owner (other than the Registered User) and is protected by Danish or international legislation, including the Danish Copyright Act, the Danish Trademarks Act, the Danish Marketing Practices Act, etc. If you provide feedback, ideas or suggestions regarding the Website or the services offered on the Website ("Feedback"), we are free to fully exploit such Feedback.

3.2 Unauthorised copying, distribution, presentation or other use of the Website or part hereof is a violation of the Danish and/or other legislations and may thus result in civil and criminal penalties.

3.3 To the fullest extent permitted by law, the rights to free use of the UGC are transferred to us irrevocably, without any time limitation and without territorial limitations, by submitting the UGC to us.

3.4 Downloading and other digital copying of the content on the Website or parts hereof are only permitted for personal non-commercial use unless otherwise agreed with us in writing or allowed under applicable mandatory law.

3.5 All company names, trademarks and other business characteristics on the Website are or will be be the property of Trustpilot or a third party (other than the Registered User) and must only be used for business purposes upon prior approval from us or the third party owner, respectively.
From these terms we can see that Trustpilot assert a claim to the intellectual property rights in their content, including the user generated content (UGC) from their reviewers. They also say that Danish copyright law is to operate in respect of disputes. As it happens Danish Copyright law does contain an exception for the purposes of criticism but it is much narrower than the UK law as it only applies to "works of art and works of a descriptive nature" (section 23 of the Danish Consolidated Copyright Act of 2014). There is is also an exception for quotation provided that this is "in accordance with proper usage and to the extent required for the purpose." (section 22 ibid). From this, I think you need to be very wary about exactly what parts of any Trustpilot reviews you quote directly on your site. If you stick to just the aggregated ratings, (eg "70% of reviews rated the company excellent") then I don't think there is much risk in what you want to do, but if you wish to dig down into individual reviews, eg "Mr John Smith of London said this was the worst car dealership he had ever had the misfortune to deal with") then I would expect Trustpilot to object.

I mentioned database right. Database right applies to any collection of data (eg reviews) which has been brought together in a way which required the expenditure of resources (money, time, skill etc) to compile. The contents of the database don't have to be subject to copyright for database right to apply. There is a general prohibition on extracting a substantial amount of a database without permission. This right will undoubtedly apply to Trustpilot's aggregated reviews and to their overall rating system, so we need to know what would be considered 'substantial' in these circumstances. Since it would appear that you only need to extract data for about 10 companies I don't believe this would be a substantial amount. However if the companies concerned are all very large (say, for instance, insurance companies) then reviews of their sevices might amount to a large proportion of the overall number of reviews submitted to Trustpilot, and so that might make the data substantial in volume terms. Database right originated from an EU Directive, which means that it applies both to Danish law and UK law (even though the UK is no longer directly subject to the EU Directive, database right has been written into UK law and remains as it was when it was introduced.)

Unless you feel confident that the amount of data you need to extract from the Trustpilot site is pretty minimal, I would suggest you contact the company to discuss your plans and see if they are likely to object.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
ehd
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Re: Fair dealing

Post by ehd »

Hi Andy

Thank you for taking the time to respond, so thoroughly and clearly, to my post. And sorry for the delay responding.

So it seems EU directive based database law - rather than Danish based copyright law - is the bigger challenge in the UK in this case. A rough calculation indicates the 10 or so ratings would be based on 50-100,000 reviews. Trustpilot have 480,000 websites reviewed and 113 million reviews. So in the raw that's 0.002% of websites and 0.001% of reviews. So pretty minimal overall. Perhaps Truspilot would object because of the potential precedent for others chipping away at the information they have generated.

My only question then would be whether database law applies regardless of volume or situation or whether conditions like financial impact come into play. Trustpilots financial model is based on the below URL. I don't see how this would be impacted.

https://support.trustpilot.com/hc/en-us ... odel-work-

If you had any further thoughts I'd be grateful but have appreciated the time given to date if not.

Thanks again

Huw
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AndyJ
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Re: Fair dealing

Post by AndyJ »

Hi Huw,
Despite the fact that database right has been around for over 20 years we have very little caselaw to help define the details. On the statistics you quoted, I can't see that coming any where close to 'substantial'. The few cases involving database right that I have seen involve the wholesale hoovering up of someone else's data. However it will ultimately depend on how TrustPilot choose to define a database. To take my earlier example, if you were interested in insurance companies, and TP maintained a discrete database for reviews involving just those companies (I don't know, say, there are 30 companies which offer public-facing retail insurance), extracting the data for 10 companies might just tip the balance into substantial for that particular database.

Unfortunately although they say they want to help people, TP don't actually provide any information on their database architecture!
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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