By Kalvin P Chapman
The Press Gazette has printed an article claiming that Rochdale Online, a news site, had sued the Manchester Evening News in the small claims court, arguing a breach of copyright, and won.
We have been unable to see the pleadings in the case or the judgment and neither Rochdale Online nor the Manchester Evening News have publicly commented on the case. So, we are providing you with the legal understanding of what is alleged to be the case, but as at the date of writing we only have the Press Gazette article’s assertion that this case was in fact heard in Court. We therefore make no comment on actual liability of the Manchester Evening News.
It is alleged that Rochdale Online ran an article that emanated from a Freedom of Information Act request. The article
So what is of interest?
In the modern era of 24 hour news, blogs, youtube, Twitter and Facebook news sources, articles and information can be recycled very fast in literally millions of different profiles and platforms. It is not unusual for one newspaper to get a story and then for other newspapers to run stories citing the original newspaper as the source. An example of this was the Mirror running a front-page story that UK soldiers had committed atrocities in Iraq, which turned out to be entirely false. The story was recycled a lot before it became known that the story was a false story. No other newspaper or outlet was able to create an original article, it all had flowed from what was printed in the Mirror (because it was false and so no other outlet could have created an original article). The story was attributed and credited when recycled, and that is how many news article are propagated these days – but always, always with attribution and credit, or a payment for the article.
What is alleged to happened here is that Rochdale On-line undertook research by way of a Freedom of Information request. That produced information that was the central plank of the news article. It appears from the article that the knowledge of the content of the expenses claim was not readily apparent from the public production of the expense’s claim, so the information emanated from the reporter’s research.
When information or text or, in this case, the concept of a news article, is capable of being copyrighted, then section 16 Copyright, Designs and Patents Act 1988 places restrictions on the copyrighted material. If you utilise the copyrighted material in contravention of this section, then a claim may arise against you by the copyright holder.
It had long been thought that news was not capable of being copyrighted. This case goes contrary to that. Without the judgment it is difficult to know what about this the Judge saw as being capable of being copyrighted. However, it would appear from what is available it was the use of research by a journalist. If, as we surmise above, the details of the expense claim were not readily apparent from the public disclosure of the expenses and could only be capable of being identified as they were through the use of the FOI request, it would seem that this is what the Judge found to be copyrightable. It should be noted that there is no suggestion the Manchester Evening News simply used the Rochdale On-line article verbatim.
So how is this useful to you?
Anything unique & original created by you is capable of being copyrighted. Section 1 defines what is copyright works, and section 2 sets out the rights attributable to those works and section 16 sets out what rights the copyright holder has.
If you run a blog and a newspaper utilises your work, then there may be a claim. It is not straightforward, as evidenced by the Rochdale On-line case. Writing an article about news that is similar to another newspaper’s news article cannot be an infringement. It needs to be unique and original. If three journalists see the same event and all report on it, they each create a unique and original work, but they cannot have infringed each other because the news item was publicly known about and seen by all three. No, the copyright would need to subsist in something unique and original in the first article that is then utilised by another without attribution or credit. In this case it was the utilisation of the details contained in the FOI request response.
It is possible to utilise someone’s copyright material for the purposes of Criticism, review, quotation and news reporting (section 30) or Caricature, parody or pastiche (section 30A). So, if you have a youtube channel and someone uses your video, you must look at what they used and how they have used it. If they have taken sections of your video and interspersed it with commentary and criticism (or praise) then they are protected by section 30. If they simply take chunks of your video and just include it in their video as filler or as if they had created, then there would appear to be a claim capable of being taken against them. The vast majority of fights on youtube occur because of the use of someone else’s work for the purposes of commentary or news reporting. The only thing youtube does very badly is the incidental usage. If a copyright work appears simply as an incidental part of filming, such as a song being on the radio or (for example) the McDonalds’ Golden M appearing in the background as you film on the street, the copyright holder should not be allowed to block its use.
Youtube tends not to side with the content creator, they tend to side with the copyright holder. A very good example of this is the original video and audio recording of the Martin Luther King speech “I had a dream”. The copyright is held by Sony and they automatically claim the copyright if any part of the original recording of the speech is uploaded, regardless of context because it is done on the content ID process, which is automated. Youtube tends not to help creators with this, despite that the law is on their side if used for news, commentary or criticism or even if it is used incidentally.
What Can You Do?
If you have a copyrighted work – something created by you that is original – and someone else uses it you must look at the context in which it is used. Have they used it for news reporting? Have they used it for commentary? Have they used it for criticism? Was it used incidentally?
So, the Rochdale On-line article. Let us assume that what is in the Press Gazette article is 100% accurate (and we have no reason to think otherwise, but right now as they are the only outlet reporting this, we have to be careful that we do not take it as fact). On the reported facts, what should the Manchester Evening News done? They reported the story as a news article, which has a defence in the Act under section 30. Section 30(1) says:
“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.”
The Manchester Evening News should therefore have identified who created the original news article, credited them and quoted it. That would have created a defence under s. 30. Indeed, it is alleged in the article that the syndicated article in the Guardian newspaper did just that when they were advised that the article emanated from Rochdale On-line.
If someone else has utilised your copyright without a defence as noted above, then you may be able to sue them under s. 16. What damages you would obtain would be determined entirely by how the copyrighted works were used and in what context. If it has been used by a blogger who gets a total of 50 unique visits a year, then you will be unlikely to get more than de minimis damages. If your copyrighted works ends up being the front page of a newspaper that sells 1 million copies plus creates substantial advert review on the website, your claim may be worth considerably more.
If you have a work that is copyrighted, and someone unlawfully uses it, speak to a lawyer. We appreciate that you will almost certainly say you want a “no win no fee” agreement. Unless your damages are going to be exceptional, it is unlikely that you would get a contingent fee or conditional fee agreement. If the damages are likely to be significant, then a solicitor such as us at Muldoon Britton may consider this.
How about if you are unlawfully attacked by a copyright holder when you have used their works within the defined exemptions? Well, you will either be dealing with this by way of the automated systems at Youtube or you will be defending a claim brought against you. In either case, you should speak to a solicitor. We would be happy to look at defending such cases, especially if it is a Court based claim. However, we would also consider acting for you in defending a Youtube copyright claim. Simply appealing based upon your emotions may not get you far. Youtube tends to utilise only the US law because they are based in the US. But, the laws are broadly similar across the developed western countries as a consequence of it emanating from the same international treaties. Speak to a lawyer – a well crafted response to a copyright claim – especially one on Youtube – might get you results that you would not otherwise get.
If you decide to use someone else’s copyrighted material, make sure you are doing so within one of the exemptions. But, more importantly, make sure you have properly and clearly identified the source of the material with an attribution and credit that makes it clear how a viewer/reader/listener can find that original work. For a youtube video you should identify in the video itself, on screen, who the content creator is and, more importantly, the name of the video you are using. In the description box you should have a URL link to that video, again identifying the content creator or their channel’s name. It usually helps if you have started your video with a copyright disclaimer confirming hat you are utilising copyright material under the US “Fair Use” laws (which is called Fair Dealing).
Do not make spurious copyright claims against others. Youtube takes that very seriously. If you have tried silencing criticism by using false or spurious copyright claim it is highly likely that Youtube will simply terminate your channel. That happens a lot.
And finally, if someone is using material and you think they should not be doing so, then speak to a solicitor. Find out your rights. Do not start shouting at people (metaphorically) or being abusive. If you are in the right then either use the platform’s copyright claims process if it has one (Youtube’s is very easy to use) or have a letter sent to the copyright infringer from a solicitor. Being emotional and aggressive tends not to sort these issues out.
But, most of all, do not be afraid of asserting your rights, even if the alleged copyright infringer is substantially larger and better resourced. If the Rochdale On-line story is true and accurate, this shows that a relatively small outlet was capable of taking on a Trinity Mirror very well resourced newspaper outlet and allegedly won. Have faith in yourself. If you do not, use a very good solicitor.
Muldoon Britton is a litigation only firm. We would be happy to assist you with any copyright claims or defences.
Resources: Rochdale Online 25 June 2016 “Danczuk claims £500 on expenses for ‘crisis management’ over Christmas”
http://www.rochdaleonline.co.uk/news-features/2/news-headlines/103734/danczuk-claims-%C2%A3500-on-expenses-for-crisis-management-over-christmas Press Gazette 12 July 2017 “’David and Goliath’ legal battle sees Rochdale Online win payout from Manchester Evening News over Danczuk expenses story”