A question about fair dealing

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Halie0201
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A question about fair dealing

Post by Halie0201 » Wed Feb 01, 2017 7:53 pm

Hello!

I have a question about fair dealing.

“Section 30(1) of the 1988 Act provides that the fair dealing exception is valid if the material is being copied for criticism or review. For it to apply, the infringer must be able to show that the dealing was for criticism or review, that the infringed work was previously made available to the public, that the dealing was fair, and that the dealing was accompanied by an acknowledgment. â€￾

If I want to express a kind of criticism to a theory or doctrine in my video, like Marxist theory, can I show some book covers of the books about the Marxist theory as the materials? Although I am not directly criticizing the book or the author self, I want to express the criticism of this theory by showing the books to the watcher. Is this a kind of copyright infringement of a kind of fair dealing?

Besides, if I want to express my opinion about one book, can I show the photo of its author in the video? It will be shown in this way: like “A Brief History of Timeâ€￾ by Hawking, I will draw a picture of a book and write the title "A Brief History of Time" on it and put the photo of Hawking on this picture(the photo itself is in public domain I found on Wikipedia). Is this an infringement of Hawking's portraiture rights?

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AndyJ
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Post by AndyJ » Wed Feb 01, 2017 10:55 pm

Hi Halie,

The exact wording of section 30 regarding criticism or review is
(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise) and provided that the work has been made available to the public
(my emphasis added).
From this you can see that the criticism etc must be directed at a copyright work, and can't just be criticism of a social trend, an opinion, doctrine or theory, such as your example of Marxism.

However your second example would meet this criterion because you would be criticising a copyright work (a book) and thus using a picture (another copyright work) of the author would be justified, as would using a picture of the book cover, or an illustration taken from the book. However since you say that the image of Hawking would be one taken from the public domain, section 30 wouldn't really be engaged.

And just a bit of clarification, 'public domain' is usually used to refer to a work which has no copyright protection, either because it doesn't qualify (for instance it is not original) or any copyright that once existed has expired because the author died more than 70 years ago. That is not the same as something which has a public general licence such as Creative Commons that allows the work to be freely used within the terms of the licence. By definition since Stephen Hawking is 75 years, any photograph of the adult Hawking must still be in copyright. And under UK law there is no such thing as "Hawking's portraiture rights". By this I assume you are referring to the doctrine of Publicity Right which exists in a wide variety of forms in various countries, including some states within the USA.
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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