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Is 'fair dealing' protection too pricey for bloggers?

We talk to the journalist at the heart of a copyright law fight and wonder if individuals can ever afford protection under copyright law12 Feb 2009


A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.


Hello and welcome to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.

My name is Matthew Magee, and this week we talk to the man on the receiving end of a controversial copyright threat and ask: when it comes to copyright law, can bloggers ever really exercise their legal rights?

Dr Ben Goldacre is used to a scrap. The author of the book Bad Science and The Guardian Newspaper column of the same name has tussled publicly with homeopaths, journalists and big pharmaceutical companies.

He usually fights on his own ground, using medical training to pinpoint cases where science has been abused to mislead the public through the lazy, inaccurate or outright dishonest reporting of research.

Lately, though, he has been embroiled in a controversy where the lines between right and wrong are a little more blurred: copyright law.

One of Goldacre's main case studies for the way that science is misrepresented to the mainstream media is the furore over the MMR vaccine.

Over the last ten years British newspapers have reported a link between the mumps, measles and rubela vaccine and autism despite there being no reliable evidence for that link or evidential justification for the anti jab frenzy. The Health Protection Agency has recorded a sharp increase in measles cases in the last eight years, which critics of the media's campaign believe is a direct result of a scare related drop in vaccinations.

In January Goldacre heard a broadcast by London radio station LBC in which presenter Jeni Barnett aired many of the fears surrounding MMR, what Goldacre describes as "the misrepresentations which have caused so much harm to public health".

He posted a criticism on his blog and, so that others could hear what he was talking about, posted an audio clip of the whole 44 minute discussion.

It was not long before he was contacted by lawyers for LBC'S parent company Global Radio saying it was copyright infringement and demanding that he take the clip down.

Goldacre says that he posted the clip without thinking for a moment that he wouldn't be allowed to.

Goldacre: Without even thinking that what I was doing was problematic, I mean it literally didn't cross my mind, I posted it on the web criticising it and opening it up for wider discussion. To be honest, now that lots have people have sent me e mails and comments about it, I don't know what the answer is on that, I mean if it is copyright infringement, what I did, then firstly it was obviously unintentional but secondly, it's kind of my sense that if that is what the law says then the law is a bit wrong.

But is that what the law says? LBC's lawyers were right to say that the clip was clearly a 'substantial copying' of copyrighted material, something copyright law says is illegal.

But the law also has exemptions that seem to catch exactly the kind of activity that Goldacre was engaged in. Kim Walker is an Intellectual Property LAW Specialist at Pinsent Masons, the law firm behind OUT-LAW.

Walker: Well the law says that LBC owns copyright in its broadcast and if you copy or reproduce a substantial part of that broadcast without permission then on the face of it that's an infringement of copyright. Parliament has said there is a public interest in allowing fair criticism of copyright works, in other words you can’t completely silence criticism or reporting of current events using copyright and therefore they have carved out of the otherwise blanket ban which copyright law would impose they had carved out certain, what they call fair dealing defences and one of those is fair dealing for the purpose of critics or review and that seems to me to be the one which Mr Goldacre would have to rely on in this case.

We asked LBC and Global Radio to tell us what their view was, and why they think that the fair dealing exemption doesn't apply, but they declined to discuss the case except off the record. They did send a statement, which they then retracted.

A major issue here is the fact that Goldacre took a large chunk of the programme and made it available. 44 minutes out of a three hour show. He said thought that this was to guard against accusations of selective editing. Walker said that the length of the excerpt would be an issue for a court but that so would Goldacre's justification.

Walker: The copying or the dealing to use the word in the legislation has to be fair and obviously that gives the courts quite a discretion as to judge in a particular case whether someone such as Mr Goldacre has fairly used someone else's copyright work for the purpose of criticism or review and the courts have said that fair dealing is a question of fact and of impression. So they will look at the facts and they will look at how it looks. The intensions of Goldacre in selecting the section of the interview or the programme that is relevant to the question of whether it is fair.

There is a legal precedent that might help Goldacre. Walker said that a previous case in which 40% of a channel 4 documentary was made up of clips of Stanley Cubrick's film A Clockwork Orange without his permission was found to qualify as fair dealing under the Act. All of this though is now academic because it won’t be tested in court. Goldacre took down the clip because there was no certainty about what the law actually means.

Goldacre: The other thing that I find really striking about it the lack of clear guidelines which seems absurd to me. In medicine we have very clear treatment protocols and they have got to be adhered to rigidly and there are lots very interesting papers written about situation where it was appropriate to deviate from a protocol. But you can get a pretty clear answer about what's the right thing to do in a given situation but there doesn’t seem to be a clear answer in this at all and the upshot of that is basically if you are a company valued at hundreds of millions of pounds then you can afford to go 'oh, well that's okay, we can argue the toss' but if you are just some bloke then I guess you just go 'well, that's okay I will take it down'.

There is a question here of access to the law and of the degree to which the fair dealing exemptions are worth anything if only large companies can take advantage of them.

As publishing proliferates and people like Goldacre engage in journalistic work on their own resources using digital distribution, will these people enjoy the protection of the law? Goldacre certainly didn't feel he did.

Goldacre: It is a grey area.  It's arguable but the reality is, and I think it is pretty offensive that our society is configured in this way, but the reality is it is a grey area but I can’t afford to argue the toss. LBC was brought by Global Radio along with a couple of other stations for I think £170m a couple of years ago. I don't know what Global Radio are worth in total but it is obviously got to be hundreds of millions of pounds and I am a junior doctor in the NHS, I write for The Guardian but I am not breaking any secrets when I tell you that they don't particularly well. I'm not, I don't have, I don't have any resources. I don't have any money to spend on this, all I have is the goodwill of people who might offer me informal advice from which I can get a gist but I certainly can't go to court on the back of that. So in reality the law is for the rich and it's almost, it's almost medieval really, I mean it really is, the law is for the, it is for the rich man. The law is for the lords and the ladies and I am a nerdy serf.

Walker says it's a long-standing problem.

Walker: It's not cheap, it is not easy to argue questions of fairness because you are only going to know when you are standing before the judge what his impression is of whether the use was fair.

There is another issue here too, though. In the aftermath of the dispute many of Goldacre's supporters have said that Global Radio's actions were not really motivated by intellectual property concerns, but by a desire to prevent the broadcast being ridiculed.

Goldacre's criticisms are not for the faint hearted. In an e mail to LBC posted on his blog he says Barnett was 'foolish and wrong' and that the broadcast was 'horrific listening'.

Goldacre says that he does not know why LBC behaved as it did, and that it could have been motivated by copyright concerns.

Goldacre: But it is always I think equally possible that they just didn't like the fact that a pretty foolish piece of broadcasting was having attention drawn to it and thought that this would be a good way to stop attention being drawn to it, and if that was their intention then I think it is fair to say that kind of backfired.

If LBC was trying to use copyright law to silence criticism, it would not be the first time that IP law was used for that purpose. US activist group The Electronic Frontier Foundation says that copyright laws have been used in the past to stifle free speech, with at least one reporter unable to pursue a story because of concerns that gathering evidence might open himself to action under copyright law.

We don't know if this was any part of LBC's motivation: we asked them and they didn't comment.

What we do know is that the actions it took have only helped Goldacre's criticisms to gain a wider audience. The clip is now all over the internet. Transcriptions have appeared, audio is hosted in several places and an early day motion was laid down in parliament condemning Barnett's coverage.

This is yet another case which could clarify the extent of the fair dealing exemption, but which won't because it will never reach a court.

The central issue in this case was, under the fair dealing exemption, how much is enough? We'll leave you with Goldacre explaining why he felt he had to post the entire clip.

Goldacre: I mean it was perfectly illustrative of a lot of long standing problems in the media's coverage and what's more it was so enduring and I mean it really is 44 minutes and it is like being slapped about the face repeatedly with this stupid stick and if you had just taken one little bit of I think people would have quite reasonably said, 'you are cherry picking examples from this', you know, 'oh well, you know you just picked out the most ridiculous bits'. It was 44 minutes of unrelenting ridiculousness and that tells to me such an important story about the wider issue of how the media have misrepresented the evidence of how we know something is good or bad for you in general but also the evidence on MMR specifically for the past 10 years and I think it needed to be out there, to be seen.

That's all we have time for this week, thanks for listening.


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