Copyright

Earlier in the semester we had a special guest lecture on Copyright given by Peter Hodges who worked in the BBC as a senior member of their legal team for a number of years.

The importance of copyright law is to allow people to protect their intellectual property, it protects the products of peoples skill, creativity, labour and time. This includes literary, dramatic, artistic or musical work, sound recordings, film, broadcast or typographical arrangements.

There is copyright in so many areas of life that some people may not realise when they are being breached, for example there are several copyrights in a single musical recording. As well as the recording itself there is also a copyright for the arrangement and the original song. So a song writer can write a popular song, they will own one copyright which is to the melody and words in the song, then several artists may record a version of the song, each of these different recordings would be covered under a new copyright, one for the performance and one for the arrangement.

One interesting example that Peter flagged was the Eiffel Tower, obviously it is one of the most recognisable landmarks in the world, but it is a danger for any tourist who wants a nice holiday snap. This is because the lighting design that illuminates the tower at night is copyrighted by the company that created it, this is mainly to restrict the way that the tower is shown and distributed in commercial media but it is something to be aware of.

To create a copyright of your work it is fairly simple, merely create a piece of work that shows some skill, creativity, labour or judgement, and then publish it. There is no need to seek for the copyright to be obtained by registration. Another thing to keep in mind is that even if you created the work, you may not hold the copyright. If you create the work while under employment then the employer will hold the copyright rather than the person who created the work.

There are several rights that are granted to the holder of the copyright with regards to the work that is copyrighted, there are:

• to produce copies or reproductions of the work and to sell those copies
• to import or export the work
• to create derivative works
• to perform or display the work publicly
• to sell or assign these rights to others
• to transmit or display by radio or video.

As you can see these are very restrictive, as you would expect, but there are ways of still using copyrighted material even if you did not create it yourself. Before I move onto that I will briefly talk about how long a copyright lasts, using material that is out of copyright is always easier when possible.

The standard length for a copyright is the life of the author plus 50-70 years dependant on the type of work. For literary, dramatic, musical works and films the copyrights lasts for 70 years after the authors death. For broadcast and sound recordings the copyright lasts for 50 years, from the end of the year it was recorded or released.

As I said the easiest way to deal with copyright is to avoid it by either creating your own work, e.g. taking your own photographs, or by using work which is in the public domain.

But there are several ways of using copyrighted material within the law, the first is to simply buy the martial. This then passes the copyright from the original author onto the person who bought it, this then gives them the right to distribute the work as they want.

The second and most commonly used way of using copyrighted material, this time without permission of the copyright holder and without paying for it, is fair dealing. You can only copyrighted material use fair dealing for 3 purposes, these are:

• research and private study
• criticism and review
• reporting current events

The first purpose is not really important for us because it is purely non-commercial. Criticism and review allows the use of quotes from books and plays and clips from films and broadcast when being used to write a criticism or review. On WINOL we have used fair dealing for this purpose a lot within Ewan's gaming review show.

The third purpose is reporting current events, this allows you to use copyright material to report a current event as long as sufficient acknowledgement is given to the author and it has been made available to the public. This defence does not cover photography. For a while there was a dispute over the football highlights and if they could be used under fair dealing of reporting current events, this is because of the amount broadcasters pay for the rights to broadcast sports.

I mentioned above that reporting current events doesn’t cover photography, but there is a way of using photographs within copyright law without paying the creator. Creative commons is a way of sharing copyrighted material, usually photographs, within certain guidelines set out by the author. These guidelines include crediting the author, whether the work can be modified in any way and if the work can be used for commercial means. Good sources of creative commons work are flickr and youtube, and on WINOL we try to use as much creative commons material as possible when we cannot get the images ourselves.

One point that Peter made that was important for me and my role within WINOL was about incidental inclusion and how it doesn't cover music. This means that if football fans are singing a song or tune at a match or if there is music being played over a PA then it is a breach of copyright. This is something I deal with on a weekly basis, especially with ice hockey and so have had to make reporters drop clips or cut shots shorter to avoid incidentally including music.

One of the biggest copyright battles in recent years involved Youtube and its parent company Google who were being accused pf massive intentional copyright infringement by Viacom, one of the largest media companies in the world. The lawsuit would have cost Google $1bn but they won and the lawsuit was thrown out. This is a landmark case between two global companies but it is good to note that copyright infringements incur much higher costs that libel cases.

Dancing with Defamation

Defamation is one the biggest if not the biggest legal issue us journalists have to deal with, even on WINOL I have found myself discussing it with reporters and lecturers. So what actually is defamation , in the simplest terms defamation or defaming someone is saying something negative about a person, company or organisation. Which as a journalist can be a difficult this to avoid.

The legal definition of a defamatory statement as given in McNae's is that a statement about a person defamatory if it tends to:

• Expose a person to hatred, ridicule, or contempt; or
• causes the person to be shunned or avoided; or
• lower the person in the estimation of right-thinking members of society generally; or
• disparage the person in his/her business, trade, office, or profession.

The words tends to are very important in this case because it means that the claimant, the person claiming to have been defamed, doesn't have to show that they were actually exposed to hatred or ridicule ect.

There are ways of defaming a person without actually asserting a defamatory statement, these are known as inference and innuendo.

Inference

As the name implies, is when someone infers a defamatory statement, this could be something as simple as saying “a man, known for his views against alcoholism was seen leaving a pub late last night, the local member was said to have been stumbling and dropped his mobile phone.” This implies that he was drunk and because of his stance against alcohol this statememnt would defame him. Even though I have not said he was drunk, by saying he was leaving a pub late and night and stumbling I have inferred that he was.

McNae's definition of inference is:

• An inference is a statement with a secondary meaning which can be understood by someone without special knowledge who 'reads between the lines in the light of his general knowledge and experience of wordy affairs.

Innuendo

Innuendo is similar to inference, but the main difference is that innuendo is that unlike inference innuendo can seem like a normal statement to the general public, but there is a group people with special knowledge that can then understand that the statement is in fact implying something defamatory.

McNae's definition of innuendo is:

• An innuendo is a statement which may seem innocuous by some people but which will be seen as defamatory by people with special knowledge.

The person claiming to have been defamed by innuendo must prove two thing, firstly that the special facts or circumstances giving rise to the innuendo and secondly that there are people who know about these when the statement was published.

A high profile example of defamation through innuendo which has is active at the moment is Lord McAlphine after the recent Newsnight broadcast. The BBC thought that they would be legally safe because they did not name anyone during the report, but it has become clear that they gave enough information to allude towards McAlpine, which then lead to people like George Monboit to tweet about the report, identifying McAlpine,http://www.telegraph.co.uk/news/uknews/crime/9683457/Lord-McAlpine-Guardian-will-not-pay-George-Monbiots-legal-costs.html

This aticle: http://www.pressgazette.co.uk/lord-mcalpine-accuses-media-defamation-innuendo-over-child-abuse-links gives an overview of the case.

With the introduction of no win no fee lawyers in recent years the realm of libel courts to the masses where as before they were mainly used by wealthy and litigious celebrities. This means that journalists have to be even more careful about what they write and say.

But of you do defame someone then there are several things the claimant must prove to be able to sue for damages, these are:

• the publication is defamatory; and
• it may be reasonably understood to refer to him/her – that is, 'identification'; and
• it has been published to a third person

An easy three word mantra to remember this is: defamation, identification, publication.

Defamation: The claimant must prove they have been defamed, I have already been through what makes a statement defamatory.

Identification: The claimant must prove that the material identifies him/her. On this subject McNae writes “The test of whether the published statement identifies the claimant is whether it would reasonably lead people acquainted with him/her to believe that he/her was the person referred to.”

In 1862 a judge said that it is only necessary that “those who know the claimant can make out that he/she is the person meant”

Journalist have to be careful when writing about members of organisations, for example if these is only a single female officer in a station and I wrote something defamatory about the female police officer, but did not name her, it is obvious who I am writing about. Also derogatory comments about institutions can reflect upwards onto the person who runs the institution, McNae especially warns about criticising schools.

Wrongly identifying is another danger we face, this means checking facts like how a name is spelt and that a picture if of the correct person. McNae gives an example from the Daily Mail who published a photo of the wrong man in the coverage of a robbery trial.

http://www.rjw.co.uk/legal-services/media-libel-privacy/defamation-libel-slander/recent-cases/case/negligent-misstatement-about-nurse-leads-to-defamation-claim/#axzz2CPFLB2Lx Here is an example in which a newspaper clearly defames a nurse, but has no legal defence because they named the wrong nurse in the article.

The way to avoid miss identification is to identify someone as mush as you can, this can mean including a persons age, address and occupation alongside the CORRECT picture. This is especially important when court reporting.

It is possible to defame a group, if the group is small enough. So if a journalist writes something defamatory about a small group or organisation, McNae uses the example of a small police station, but does not identify a specific person in the station then if the group is small enough all the members of the station can sue. There is currently no actual number with defines how large these groups can be, but a group of 35 police dog handler's was views sufficient to identify them as individuals.

A well known example of this occurred after allegations that a detective at Banbury CID had raped a woman. The publication failed to name an individual and were sued by the 12 detectives.

The final thing to talk about before wrapping up Identification is Juxtaposition. This is when a photograph is placed incorrectly or the wrong photograph is used, this can be especially bad if the position of the picture suggest that it is the person being identified in a separate story.

Publication: This is the simplest to prove, if the statement has been said to or been written down and shown to anyone other than the person it refers to then it has been published, and once it is in a newspaper it has definitely been published. As far as the internet is concerned this is where things can become a little tricky, within English copyright law a claimant cannot sue unless there is a 'significant publication'. The example provided by McNae's showed that only 5 people had viewed the defamatory material in the UK, and three of these were the claimants 'camp'.

One other thing for people to be mindful of, especially within WINOL and as students is the laws around repeating statement of others. Every repetition of a libel is a fresh publication, which creates a fresh cause of action, and there is no defence for you to day you were just repeating the words of others. One of the most common cases of this is repeating statements made by interviewees without being able to prove they are truthful.

It is key to remember that we are all publishers now, every blog, tweet and post on facebook can defame someone and can land you with a big legal bill.

Defences

Now that we can identify when a statement will be defamatory and when you can be sued lets look at the defences.

There are three main defences a journalist can use against libel claims, these are:

• Justification
• Comment
• Privilege

Justification is the simplest and best defence of the three, this defence is purely proving that what you said it true. There are some requirements you must meet to be able to use this defence, these are:

• that the published material complained of can be proved in a court to be substantially true
• the material must be proved to be true on the 'balance of probabilities'

This is less evidence than is required for 'beyond reasonable doubt' but the publication must have enough evidence to persuade a jury, or a judge when no jury is present, that their version of events is the right one. If this requirement is met it gives complete protection against the libel action.

Honest Comment

This is the second of the main defences and put simple is giving an honest opinion, like with justification there are several requirements if this defence is to be used, these are:

• the published comment must be honestly held in theopinion of the person making it
• it must be recognisable as comment rather than as factual allegations
• it must be based or provably true facts/privileged material
• it must implicitly or explicitly indicate, at least in general terms, the facts on which is it was based.

http://www.thestage.co.uk/features/analysis-opinion/2012/11/ground-breaking-libel-case-was-close-shave-for-gillettes/ Here is an example where the honest comment defence failed, even after it was amended.

Privilege

There are two types of privilege, absolute and qualified privilege, absolute privilege provides a complete defence against any defamatory action, even if malicious. Members of parliament have absolute privilege, but as far as journalist are concerned we have to make do with qualified privilege.

Qualified privilege is a defence available to journalist reporting certain events, there are:

• debates held in public at any legislature in the world
• court proceedings held in public anywhere in the world
• public meetings and press conferences
• the meetings of councils, their committees and sub-committees
• statements issued by for the public by government departments

Like all of the defences there are several requirements a journalist must meet to use this defence. Put simple these are fast, accurate and fair, which is a mantra that has been instilled in us from the beginning of the course as a general way to conduct good journalism.

Fast or contemporaneous means that the report must be published 'as soon as practicable'. For newspapers this means the day after the hearing, and for broadcasters on their next broadcast, be that the same day or the start of the next day.

Accurate as always being accurate is important in journalism, and especially so within court, this means making sure not to report a witness and the defendant or is there are several defendants making sure that you report the correct sentence for each.

Fair there are two important factors here, the first is being without malice, the journalist must only publish with the motive to inform the public.

The final defence I will talk about is the Reynold's defence, this defence came about after the 1998 case between Albert Reynolds and the Times Newspaper, the action came about after the Times published an article claiming that Reynolds had misled the Irish parliament. Although the Times lost the case, after the trial it was deemed that it is a journalists duty to publish media in the public interest, even if it cannot be proven to be true.

Lord Nichollis set out a list of rules to show if the publication is the work of a responsible journalist and therefore able to use the defence, these rules are:

1. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
2. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
3. The steps taken to verify the information.
4. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
5. The urgency of the matter. News is often a perishable commodity.
6. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
7. Whether the article contained the gist of the plaintiff's side of the story.
8. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
9. The circumstances of the publication, including the timing.
   
10. The Circumstances of the publication, including the timing

A recent use of the Reynold's defence can be seen here http://www.guardian.co.uk/media/2012/mar/21/times-libel-reynolds-defence?intcmp=239 in which the Times used it to publish an article about police corruption. The original publication in the newspaper and on the website were deemed to be covered under the Reynold's defence. But after a police investigation Flood was exonerated of any wrong doing, the Times failed to update their website and the judge in the court of appeals said that the failure to update the website was not responsible journalism. This is an important thing to remember that once a story is written and published it cannot be pushed out of your mind, because changes in the story can change your legal defence.

Currently there is a new Defamation bill going through the House of Lords at the moment which will no doubt change libel law and the defences journalists have. The key thing at the moment looks the be the inclusion of a simple and effective public interest defence which will hopefully provide more freedom for journalists. You can read more about the libel reform here http://www.libelreform.org/

A recent defamation case I saw while writing this blog is from Australia, where google has had to pay $208,000 to a man whos name was lined to a gangster. This raises the question that can a search engine defame someone when it is just running off an algorithm. I am sure google will not let this happen again because the suit came about after their failure to act.

It is interesting to see how the internet and defamation have come together this week and when English defamation law will catch up.