Legal Respondent: Lionel Bently

Professor Lionel Bently (University of Cambridge)

It’s been absolutely fantastic listening to these talks. I’m just going to say a few things about copyright, particularly the fair dealing exceptions and the recent changes to give some idea to you of the degree to which there might have been liberalisation.

Before doing so, I want to make a couple of general points (with apologies to the lawyers in the room for whom what I am saying is obvious).

Copyright law in the UK is governed by the Copyright, Designs and Patents Act 1988 – passed in 1988 but amended many times since. Copyright law is mostly civil law (enforced by claims in civil courts). Earlier on, one of the speakers referred to infringements of copyright as ‘offences.’ The term ‘offence’ is usually used to described criminal rather than civil wrongs. It is true that there are some criminal law provisions, some copyright ‘offences.’ But these targeted at what everybody would think of as pirates. (Very occasionally, these criminal provisions actually are used against ‘regular’ commercial entities. There was a case maybe fifteen years ago against Thames and Hudson brought by the Designs and Artistic Copyright Society about use of a picture on the front of a Thames and Hudson book that was brought under criminal law.)

Second, copyright is trying to hold a very difficult balance between incentivising and recognising ‘creativity’ on the one hand, and not unnecessarily preventing second-generation creativity on the other. While there are really important benefits that come to creators from copyright, it’s important to recognise that if copyright becomes too strong it can start to inhibit subsequent creativity.

Now licences, and some of the licensing schemes we’ve heard about already, are a great way through that difficulty. Where you can get a BFI educational licence, that is a fantastic thing. But often the situation is so complex and the kinds of creative uses that are involved are of such low value that licensing is not realistic: the whole edifice threatens to curtail the follow-on creativity.

For example, we heard from Ben about the complexities that arise as a result of the number of people involved; we heard from Shane about the difficulties of getting licences to use German film footage. That is a telling example because to understand where the rights in the German film lie, you have to understand German copyright contract law. It’s not sufficient just understand UK copyright law: you need to understand the specific provisions of contract and what can be assigned and what is held back by authors, etc. This is a real morass.

The danger is that if we always require licences, and obtaining licences is so complex and costly, we end up curtailing creativity. Exceptions to copyright constitute a way through the morass, and they are particularly useful in relation to certain high public interest, but relatively low value, uses.

Turning to exceptions, let me try to explain the recent shift in the scope of ‘fair dealing.’ When the 1988 Act was enacted the UK had three fair dealing defences: one for research and private study, another for criticism or review and a third for reporting current events. The research/private study exception could be useful for Shane’s students (especially since in 2014 it was extended to allow use of film. The criticism or review defence allows for fair use to criticise or review a work or a performance of a work. This was the defence that Charlie was relying on for a long time until 2014 and I’ll say something about it in a minute. Fair dealing for reporting current events is important, for example for news films (but does not seem especially important for this audience).

The important thing to understand about the way British law was, and still is for the most part, is that if a person uses work fairly that is not enough to bring the use within an exception to copyright. A use can be fair but infringing. A use only falls within a defence to copyright infringement, if the use is fair for one of these three purposes. In other words, British law does not have fair use defence.

Fair use is an American concept, and in contrast with British law, it allows for any use that is fair to be exempt from copyright infringement. The US statute offers some factors from which to assess fairness and gives some illustrations of types of use that might be thought to be fair. But any use that is fair is exempt under US law.

That is not the case under British law. That’s the key starting point. The UK has limited categories of use that might be exempt. Fortunately, these categories are getting a bit broader.

One of the UK’s limited categories of permitted uses is “fair dealing for criticism or review.” As I said, this was the one that Charlie wanted to rely on. Charlie had produced a beautiful set of clips from Hitchcock films leading up to the death of various victims, and he put them alongside each other; he didn’t really know quite what he was saying by selecting and combining the clips, but he thought there was something there that he was definitely saying. Is that fair dealing for criticism or review? Unfortunately, there was case law that said that the criticism or review had to be explicit not implicit: Sillitoe v McGraw Hill. Taking a bunch of fragments of text and letting the reader work out criticism implicit in the selection is not “critism or review.” So in these circumstances, Charlie, I am sorry to say you would not have been able to rely on the old fair dealing for criticism or review defence.

The other thing about the criticism or review defence is that it only applies where you are criticising a work or a performance of a work or a performance of a work; it doesn’t apply to criticism in general. So you can’t reproduce a clip to criticise Donald Trump because Donald Trump is not a work or a performance of a work, he is a political actor. This means there are very significant limitations to the criticism or review defence.

Nevertheless, recent years have witnessed some important shifts, some of which have been mentioned. We now have fair dealing defences for new categories of purpose, for parody, caricature and pastiche, and also fair dealing by way of quotation. I’m going to say a little bit about what these entail.

First, there is now a fair dealing defence for parody, caricature or pastiche. Moreover, there is a case from the European Court of Justice (Deckmyn v Vandersteen) that explains what parody is, and tells us something about the approach to be taken.

It’s not a very charming case. As you’ll see from the images in the slides, on the left is the Claimant’s work, the front cover of a children’s cartoon called Spike and Suzy that is popular in Belgium, and on the right is a version of the cartoon created by a right-wing political party from Belgium.

The title of the cartoon is The Generous Benefactor. In the politicised version, the role of the generous benefactor is taken by the Mayor of Ghent and he is depicted throwing money to a multi-cultural audience. One assumes that, for its target audience, distributing money in this manner was unacceptable.

In response to a reference to the Court of Justice, the Court defined the essential characteristics of parody as being twofold: first, a parody evokes an existing work while being noticeably different from it; and second, a parody constitutes an expression of humour or mockery. The second element requires the Courts to judge when something is funny and when it’s not. I think courts will take a fairly liberal approach to that. It seems to me that the Court espouses quite a broad definition of parody.

The Court of Justice also indicated that the exception for parody reflected the fundamental right of free expression, which is recognised in Article 11 of the European Charter of Fundamental Rights. This right has to be balanced against the right to intellectual property recognised in Article 17. The Court explained that in applying the parody exception, the courts should try to strike a fair balance between the interests of right holders and the freedom of expression of users. Like tradition approach to “fair dealing,” this involves a weighing exercise.

The Court didn’t say anything about “pastiche,” and the meaning of pastiche remains an unknown. We might try and find out what pastiche is by looking at some learned authors, and so I’ve put up two definitions of pastiche that come from the literature.

Juliano Bruno writing in October in 1987 calls pastiche the “aesthetics of quotation pushed to its limits.” I think that’s a definition that might serve Charlie’s practices quite nicely. Richard Dyer who’s written a book called Pastiche refers to it as a kind of “aesthetic of imitation” that is to be understood as pastiche. So for Richard Dyer what is important is that pastiche is understood by the audience as being a pastiche.

Beyond that, we don’t know what “pastiche” is. Indeed, we don’t even know whether the Courts would buy into either of those definitions. My best guess is that pastiche will be treated as a very broad concept, and determination of whether a particular practice is permissible will depend on the same weighing between freedom of expression and copyright as with parody. This may or (more likely) may not make give confidence to a person creating film from compilations of fragments of existing film.

In addition to the fair dealing for purposes of parody, caricature and pastiche, the 2014 changes introduced a new exception of fair dealing by way of quotation, According to section 30A, copyright in a work is not infringed by the use of a quotation from the work, whether for criticism or review or otherwise. That ‘or otherwise’ is crucial. The defence is subject to compliance with a bunch of conditions, the most important of which is that the use is “fair dealing” with the work.

Now this is a real shift. This is because there is no limitation by purpose. Recall the contrast between British law and US law: British law only allows fair dealing by reference to particular purposes; US law allows any fair use to be exempt. Well, here we have an exception that is not limited by way of purpose: it’s limited by the type of use, “quotation,” not purpose. As a result, much is going to turn on what is meant by “quotation.”

Now, what is “quotation?” This is a difficult question, and the danger is that “quotation” is going to be understood in terms of textual quotation. If you are asked what you think “quotation” is, probably the first thing that springs to mind is a passage of text set in the middle of an essay in quotation marks, distinct from that text, in which the essay discusses the passage, or which the passage is used to support an argument within the essay.

I am worried that the textual paradigm of “quotation” is likely to be used to limit the application of the quotation exception. In one case, an Advocate General from the Court of Justice would have elevated the typical characteristics of print/text-based quotation into necessary conditions for the operation of the exception. For Advocate General Trstenjak, in the Painer case, in a quotation, third party intellectual property is reproduced without modification, in identifiable form, and the quoting work refers back to the quoted work by way of description, commentary or analysis, etc. These conditions reflect the text-based paradigm of quotation.

But the quotation defence in UK law applies across all works that are protected by copyright: it is a defence not just to infringement of copyright in literary works. As a result, I argue that to work out what quotation means we need to understand how quotation is used in all different cultural fields, not just in the context of textual reuse. To understand what quotation is, we need to think about how the term “quotation” is used in film, how it’s used in art, how it’s used in drama, etc., and when we understand how it’s used we can then get an idea of what its meaning is in the context of a provision that is applicable to all cultural works protected by copyright.

There are some classic examples that film scholars refer to as “quotation.” One of them is the standard use of quotation in film scholarship, as meaning the situation where one film references a scene in another film by re-enacting that scene. A classic example of such a practice that is repeatedly described as “quotation” in the literature is Brian De Palma’s film, The Untouchables. There is a scene in The Untouchables set in Union Station in Chicago that specifically mimics the Odessa Steps scene from Sergei Eisenstein’s film Battleship Potemkin. You will recall that the latter film relates to a mutiny by Russian sailors on the boat when it is in the Black Sea. The locals in Odessa rally to the support of the mutineers but are savagely confronted by Cossack soldiers. The soldiers kill various people on the Steps. In Eisenstein’s film, a woman pushing her baby is killed and the pram carrying her baby careers down the Steps. In The Untouchables, which concerned Chicago gangsters, Brian De Palma mimics the Odessa Steps scene, including the death of a mother and the descent of her pram down the stairs at Union station. In the film studies literature, what De Palma does is described as quotation.

The significance of this lies in the fact that, in film at least, a “quotation” need not be distinct from the work: De Palma’s quotation is incorporated in his work; it is not “set in” as a literary quotation might be, but rather just flows as part of the work. The example also highlights that a quotation can be transformative: a “quotation” does not have to be something that is kept distinct and integral; rather, a quotation can be reused in a transformative way.

There are many other examples I could share with you. There’s a scene in the horror film, Scream, where a group of kids are sitting watching a scene from an earlier horror classic, Halloween. As they are mocking the scene from Halloween, they are about to be subject to a similar horrific attack. This, too, is also referred to in the literature as “quotation.”

Charlie gave another example. Douglas Gordon produced a screening of Psycho, where he slowed down Psycho so that it lasted for twenty-four hours. People attending Gordon’s exhibition would spend two or three minutes watching the very slowed down version, and then they’d leave. And the question arises well that is “quotation?” The audience just experiences a small section rather than a small section being excerpted and given to them. David Metger, a cultural theorist, discussed at some length whether that would be quotation. Metzger concluded that the example fell at the limit of the notion of quotation.

What is important, is to illustrate the breadth of the idea of quotation. There is a danger that this breadth, and the freedom it offers, will be lost were “quotation” defined for purposes of the copyright law to reflect (some) textual paradigm. In contrast, understood as I suggest it should be, across the full range of cultural uses, the new “quotation” exception brings British law potentially very close to US fair use law, at in the context of cultural reuses.

All these defences are subject to the condition of fairness: the dealing must be fair. That is, there must be a fair balance, and this inevitably involves quite a lot of uncertainty.

There are not many cases concerning films, in fact I can only think of one: Time Warner v Channel 4, from before the new exceptions were introduced.

In this case, excerpts were taken from Kubrick’s A Clockwork Orange for a Channel 4 programme (Dispatches) that was discussing why A Clockwork Orange had been withdrawn from circulation.

As far as I understand Warner had withdrawn the film following some copycat attacks in the UK in the early seventies.

In contrast, Warner allowed it to be shown elsewhere. Channel 4 decided to do a programme about it, and the programme included I think twelve minutes footage. 10% of the programme itself comprised clips from A Clockwork Orange.

The Court of Appeal held, first, and perhaps surprisingly, that Channel 4’s dealing was for purposes of criticism or review of “the work,” and second, that it was fair. The Court looked at the amount taken, the purpose for which the material was used, the amount added, the circumstances in which the work was acquired. Overall, the Court concluded that the dealing was fair to achieve its purpose.

Now at the time people in film and broadcasting industries were very concerned about this. They thought this was much too “generous” to users, and that it would undermine the market for clips. In fact, this may well be the high water mark of considering what is fair for the purposes of the fair dealing exceptions. However, it offers a little flavour of how “fairness” decisions are made. You look at the amount taken, look at the amount added, you look at how it’s used, whether it’s transformative, you look at whether it’s commercial or not, and you look at all the circumstances of the case to make ultimately a decision about whether it’s fair.

If we turn our mind to some of Charlie’s activities, there are certainly elements in Charlie’s work that would support a fairness finding. In particular, Charlie is building works, and transforming the material he reproduces. Moreover, he typically uses only small amounts. On the other hand, a Court might be suspicious about works made up just of other works; and a court would be interested in Charlie’s business model.

Mark gave the example of 100 Greatest TV Moments. In this case, the clips were clearly being used for commercial purposes. I doubt that such use would be regarded as fair. Rather, I think it would be viewed as a film that builds on other works, rather than as something that would be regarded as a transformative or especially creative.

Finally, I want to conclude by saying something briefly about the moral right of integrity.

The moral right of integrity does apply to film, with the “director” holding the moral right. Where use of material from a film involves addition, deletion, modification or adaptation of a work, there will be infringement of the right if the treatment prejudices the honour or reputation of the author.

However, there is a strong (though untested) argument that if the authorship of the using work is clearly distinct, so that everybody knows that the using work is a work of authorship of somebody else, then it might be very difficult to establish prejudice to the honour or reputation of the author whose work is incorporated in or parodied in the work that is using it. This is an argument that has been made by some of the leading writers on copyright.

If that view is right, the moral right of integrity might not be such a big thing to worry about as people have been suggesting so far today. That is all I have time to say. Thank you for listening.