- Q. There's a poster in shot. Do we need to clear it?
A. This depends on a number of factors, such as how prominently it appears, whether its inclusion is deliberate or whether it's merely incidental. For example, a fleeting glimpse of a poster or picture on a wall in a documentary is unlikely to require clearance, as its inclusion could be defended as being "incidental" in the UK, see 'Incidental Inclusion'. However, if the poster was deliberately included within a programme, for example within a drama set, or was shown prominently - the poster was picked out and commented upon - then it is unlikely its inclusion could be classed as 'incidental' and clearance from the copyright owner would be likely to be necessary.
Note: programme-makers take sole responsibility for ensuring that all necessary copyright clearances are sought prior to broadcast. If in doubt about whether the inclusion of a particular copyright work falls within one of the statutory defences, please seek advice from the programme lawyer.
- Q. When we show newspaper articles briefly, do we need to clear them?
A. Newspapers, which consist of written articles and photographs, are copyright works and, as such, need to be licensed if they are to be included within programmes, unless their use falls within one of the statutory defences, for example incidental inclusion or fair dealing. This means that in most types of programmes, if newspaper articles or pages from newspapers are shown ('rostrummed' or held up to camera) they will need to be licensed in the usual way.
In some types of programmes, in particular topical, review or news-type programmes, showing pages or articles from newspapers may well fall within fair dealing provisions (potentially both in order to report a current event and as part of a review/critique) and, if that is the case, clearance will not be required.
If programme-makers wish to include newspapers or articles in this way, without clearance from the copyright owner, particularly where photographs form part of the page or article, advice must be sought from the programme lawyer.
- Q. Do newspaper headlines need to be cleared?
A. Programme-makers often want to include newspaper headlines in their programmes, either taken directly from the page of the newspaper in which they originally appeared, or reproduced as a graphic. Recent case law suggests that the courts would be unwilling to find the reproduction of a simple headline amounted to copyright infringement of the article or publication from which it came (as it would not amount to a 'substantial part'). As with all rights clearance issues this is primarily a matter for the producers who should decide whether clearance is necessary based on the nature of the programme and the intended use. In certain circumstances clearance may well be advisable; while in others it may be wholly unnecessary.
- Q. What's the difference between "fair dealing" and "fair comment"?
A. Sometimes programme-makers confuse 'fair dealing' with 'fair comment'. Whilst they are both terms which denote a defence in law, they are entirely different. Fair comment (now referred to by lawyers and the Courts as "Honest Comment" or "Honest Opinion") is a defence to an action for defamation and protects honestly held opinion (not statements of fact), based on true facts, expressed on matters of public interest. Fair dealing, on the other hand, has nothing to do with defamation. It is a defence to copyright infringement, where a copyright work is being used either in order to review or critique it or another work, or is being used in order to report a current event (and in both cases, a sufficient acknowledgement of 'title and author' is given).
- Q. Is "fair dealing" the same as "news and review"?
A. Yes. For some reason, some producers refer to fair dealing as "news and review". However, this is discouraged, as it can lead producers to confuse the two distinct limbs of fair dealing – 'criticism or review' and 'reporting current events'. From time to time, when fair dealing a copyright work, it may be being used for the purpose of criticism of that or another work, and at the same time for the purpose of reporting a current event but, in most cases, it will only be being used for one purpose.
- Q. We are fair dealing a movie clip but do we have to clear the music within it?
A. No. If a film clip is being fair dealt, underlying rights such as a music score within it, would not need to be separately cleared. If this wasn't the case and underlying rights had to be cleared, it would make fair dealing practically impossible and frustrate the very purpose for which it was introduced. This applies to all fair dealing – if a work is being properly fair dealt, underlying rights do not need to be cleared.
- Q. Can you still fair deal if the copyright owner has actually refused permission to use the clip?
A. Yes. It does not matter if the copyright owner has refused permission, as long as the particular copyright work is being properly fair dealt.
- Q. Does the copyright owner have to refuse permission before we can fair deal?
A. No. It makes no difference. In fact you don't even need to contact the copyright owner for permission in the first place, or even alert the copyright owner to the fact that you are intending using their copyright work. You should seek advice before contacting a copyright owner where you believe you may wish to fair deal a copyright work.
- Q. When you're fair dealing a clip, you're covered if you say 3 things about it. Correct?
A. Not necessarily. Some producers' understanding of fair dealing appears to be that if three review points are made about a particular clip (along with an acknowledgement) then the fair dealing provisions will be satisfied. This has no basis in law whatsoever. Advice should be sought on a case by case basis from the programme lawyer for advice as to what amount or degree of review or analysis is required.
- Q. Why can't sports footage be fair dealt in the normal way?
A. Channel 4 and ITN (which makes Channel 4 News) along with almost all other mainstream UK broadcasters are signatories to the Sports News Access Code, an agreement whereby producers of sports material, news organisations and broadcasters have agreed, when fair dealing, only to use each others sports footage in clearly defined ways. Whenever it is intended to fair deal sports material, it is essential programme-makers take advice from their relevant programme lawyer.
- Q. Isn't material on websites "public domain", so it doesn't need to be cleared?
A. This is a common misconception. Content (including articles, pictures, music, graphics, photographs, footage) found on the internet is just as much protected by copyright law as any other copyright material. Just because it can be accessed or downloaded through/from the internet does not mean that it is free to use, copy or distribute without authorisation from the copyright owner. Some material that can be accessed via the internet is 'public domain' and free to use but where it is, it will be clearly spelled out in a licence agreement accompanying the material in question. Other copyright material found on the internet may be free to use but only in certain defined ways, for example material posted onto the internet under a Creative Commons Licence. If in any doubt at all whether clearance is necessary, programme-makers should err on the side of caution and contact the copyright owner for consent unless the intention is to fair deal the material, in which case, programme-makers should seek advice from the programme lawyer.