Copyright

INFRINGEMENT
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Lambic Media Ltd (2015) sheds some light. The case concerned a
dispute regarding the soundtrack to a documentary entitled The Beatles:
The Lost Concert. Sony sued in the UK where the documentary was
made, and in the US where its intended market was. The focus of the
case was whether WPMC could rely on discussions between the parties
that were ‘subject to contract’ to say that there was a collateral contract
to grant a synchronization license to WPMC to exploit the work.
WPMC conceded that if there was no contract then they infringed
copyright subject to it being fair.
The UK Court found that there was no contract in place, and went
on to look at the fair use - and did so by reference to the US doctrine
of fair dealing set out above. In addition, the court considered works
of a leading copyright academic who argues that in order to be fair
dealing the use must be ‘transformative’ of the original work.
The Court rejected Sony’s argument that to succeed in a fair use
defense, WPMC must show that no more has been taken of the
copyright work than is necessary for the transformative purpose.
According to the Court, “what the defendant must show is that the
amount taken is reasonable, and not excessive.”
The court accepted WPMC’s contention that “it can be fair use to
copy the whole of the copyright work where this is justified by the
transformative purpose particularly, but not exclusively, if the copy
is not a high quality one (e.g. where an image is reduced in size).”
In considering whether the use made of the copyright works could
amount to fair use, the Court held that the use was commercial and
partly transformative. With respect to the nature of the works, the
copyright works are fully expressive works falling within the core of
copyright protection.
With respect to the amount and substantiality of the work that has
been used, the documentary reproduced the entirety of each of the
copyright works. According to the Court, it found the following to be
true:
“The amount copied is clearly excessive. If the documentary had
merely used a number of excerpts from the concert video, and hence of
the copyright works, then that might well have been reasonable having
regard to the transformative purpose. As it is, however, the Documentary
CTC Legal Media
goes well beyond that. What WPMC are presenting amounts to a package
of the concert video with additional material. Furthermore, there is
substantial additional use of the copyright works as part of the soundtrack.
Not only does the usage exceed what is necessary to illustrate the nature
and effect of the Beatles' performances of the copyright works, it exceeds
what is reasonable for that purpose.”
Finally, with respect to the effect on the market or the impact on
the value of the work, the defendants failed to establish that the
documentary would not damage the market for, or potential value of,
the copyright works if permitted as fair use. On the contrary, the Court
found it “likely that this would damage the market for, or potential
value of, the copyright works.”
Therefore, under the circumstances outlined, the court concluded
that inclusion of the copyright works in the documentary did not
amount to fair use. Bearing in mind that what is a ‘quotation is not
defined’ and could have a very broad meaning, what is of interest
here therefore is the Court’s analysis along the lines of the US doctrine
of fair use. Through this decision the Court is suggesting that the
new quotation exception has brought our approach closer to the
doctrine of fair use in the US.
In light of this case, those using works without securing licenses
may do well to consider the US doctrine of fair use and whether the
use they propose would safely fall under it.
“
The general principle of
fair use in the US is far more
flexible. Any use may be fair as
long as it is deemed to be so
judged against four factors.
”
THE COPYRIGHT LAWYER 15