UK copyright caselaw update: the Lucasfilm, BT, ITV and Meltwater cases

Is a stormtrooper’s helmet a sculpture protected by copyright? Can a defendant living in the UK be sued for infringing the US Copyright Act in the UK? Can an ISP be forced to block a foreign website whose services are being used to download infringing TV programmes and movies? Does Internet streaming of television programming without permission infringe the communication to the public right? Does temporary buffering to deliver streams of film and TV programming infringe the reproduction right? Does offering an online news clipping service which involves copying headlines and short extracts of articles infringe copyright? Can such a service rely on a fair dealing defense?

These were all questions decided by four precedent setting cases in the UK over the last two weeks in the Lucasfilm Ltd & Ors v Ainsworth & Anor [2011] UKSC 39 (27 July 2011) , Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc [2011] EWHC 1981 (Ch) (28 July 2011) ,  ITV Broadcasting Ltd & Ors v TV Catchup Ltd [2011] EWHC 1874 (Pat) (18 July 2011) , and The Newspaper Licensing Agency Ltd & Ors. v Meltwater Holding BV & Ors [2011] EWCA Civ 890 (27 July 2011) cases.  Many of the issues in these cases are relevant to digital copyright legal issues currently before, or which certainly will be raised, in Canadian courts.

Lucasfilm Ltd & Ors v Ainsworth & Anor [2011] UKSC 39 (27 July 2011)

The Lucasfilm decision of the UK Supreme Court decided two issues. The first addressed the definition of “sculpture” in the Copyright, Designs and Patents Act 1988 (the CDPA), and, in particular, the correct approach to three-dimensional objects that have both an artistic purpose and a utilitarian function. The appeal was concerned with copyright in various artefacts made for use in the first Star Wars movie including the Imperial Stormtrooper helmet. The Supreme Court held that the helmets were not sculptures. The helmet was utilitarian and could not be protected by copyright.

In giving its reasons the court recognized that the CDPA’s protection for artistic works such as sculptures should be construed to be separate and distinct from copyright in utilitarian unregistered designs.

There is one other matter to which the Court of Appeal attached no weight, but which seems to us to support the judge’s conclusion. It is a general point as to the policy considerations underlying Parliament’s development of the law in order to protect the designers and makers of three-dimensional artefacts from unfair competition. After reviewing the legislative history the Court of Appeal took the view (para [40]) that there was no assistance to be obtained from the relationship between copyright and registered design right. We respectfully disagree, especially if the relatively new unregistered design right is also taken into account. It is possible to recognise an emerging legislative purpose (though the process has been slow and laborious) of protecting three-dimensional objects in a graduated way, quite unlike the protection afforded by the indiscriminate protection of literary copyright. Different periods of protection are accorded to different classes of work. Artistic works of art (sculpture and works of artistic craftsmanship) have the fullest protection; then come works with “eye appeal” (AMP Inc v Utilux Pty Ltd [1971] FSR 572); and under Part III of the 1988 Act a modest level of protection has been extended to purely functional objects (the exhaust system of a motor car being the familiar example). Although the periods of protection accorded to the less privileged types have been progressively extended, copyright protection has always been much more generous. There are good policy reasons for the differences in the periods of protection, and the Court should not, in our view, encourage the boundaries of full copyright protection to creep outwards.

The Court’s statement about not encouraging ”the boundaries of full copyright protection to creep outwards” touches upon an issue currently before the Canadian Supreme Court in two judicial reviews in the Tariff 22 case. These appeals involve the question as to whether the right of communication to the public extends to the transmission of downloads of musical works to members of the public. SOCAN argues that they do. Those opposing SOCAN’s tariff have argued that following the Supreme Court’s decision in Bishop v Stevens, the communication and reproduction rights must be construed to be separate and distinct rights and that the communication right should not be “progressively extended” so as to “creep” over into the boundaries covered by the reproduction right which applies to making copies through online transmissions.

The second issue addressed by the UK Supreme Court is whether a claim against a defendant domiciled in England for infringement of a foreign copyright is justiciable in the UK. Both the UK High Court and the Court of Appeal held they were not. The Supreme Court came to the opposite conclusion. After canvassing the UK and other Commonwealth cases on the issue and applicable legal and policy arguments, the Court reversed the judgement in the Tyburn Productions Ltd. v. Conan Doyle, [1990] 1 All E.R. 909 (Ch.D.) case and ruled that English Courts have the jurisdiction to try claims for infringement of foreign copyright laws. According to the Court:

There is no doubt that the modern trend is in favour of the enforcement of foreign intellectual property rights. First, article 22(4) of the Brussels I Regulation only assigns exclusive jurisdiction to the country where the right originates in cases which are concerned with registration or validity of rights which are “required to be deposited or registered” and does not apply to infringement actions in which there is no issue as to validity. This can rarely, if ever, apply to copyright. Second, the Rome II Regulation also plainly envisages the litigation of foreign intellectual property rights and, third, the professional and academic bodies which have considered the issue, the American Law Institute and the Max Planck Institute, clearly favour them, at any rate where issues of validity are not engaged.

There are no issues of policy which militate against the enforcement of foreign copyright. States have an interest in the international recognition and enforcement of their copyrights, as the Berne Convention on the International Union for the Protection of Literary and Artistic Works shows. Many of the points relied on by the Court of Appeal to justify the application of the Moçambique rule in this case as a matter of policy would apply to many international cases over which the English court would have jurisdiction and would in principle exercise it, especially the suggestion that questions of foreign law would have to be decided. It was also said by the Court of Appeal that enforcement of foreign intellectual property law might involve a clash of policies such that a defendant may be restrained by injunction from doing acts in this country which are lawful in this country. But such an injunction will be granted only if the acts are anticipated to achieve fruition in another country, and there is no objection in principle to such an injunction. Nor is there any objection in principle, as the Court of Appeal thought, to a restraint on acts in another country. Extra-territorial injunctions are commonly granted here against defendants subject to the in personam jurisdiction. The Court of Appeal also thought that it was relevant that there was no international regime for the mutual recognition of copyright jurisdiction and of copyright judgments, but this is no reason for the English court refusing to take jurisdiction over an English defendant in a claim for breach of foreign copyright.

The Lucasfilm case has opened the doors to permit UK courts to try transnational infringement cases involving infringements that take place over networks such as the Internet and which implicate the copyright laws of many countries, as long as the UK courts have personal jurisdiction over the defendants. But, as these cases start to be brought, secondary issues will likely emerge. These will undoubtedly include questions about which issues raised in the proceedings will be adjudicated under the lex loci delicti (the law where the infringement took place) and which under the lex fori (the law of the forum e.g. the UK). When one considers all  aspects of a copyright action including disputes over subsistence and ownership of copyright, infringement, remedies including accounting of profits, damages, and pre-trial and post trial injunctions, evidentiary rules and discovery,  and the need to establish the law where the infringement took place (which can be different from circuit to circuit in the US) it is likely that the selection of a domestic forum to try a claim of foreign infringement could lead to different results than if the same claim was tried in the domestic forum.

The decision of the UKSC is consistent with the evolving conflicts of laws precedents in Canada. One of the principal impediments for holdings that claims under foreign copyrights are not justiciable in the UK was the rule in Phillips v. Eyre. This case was subject to considerable criticism by the Supreme Court of Canada in Tolofson v. Jensen [1994] 3 S.C.R. 1022whichdoubted whether there was any merit to the requirement that in tort claims the wrong must be a tort when committed in the forum in which the suit is brought.  The decision in the Lucsfilm case is also consistent with the decision in the Research in Motion Limited v. Atari Inc., 2007 CanLII 33987 (ON SC) case in which an Ontario court refused to strike out a claim brought by RIM against Atari for a declaration that several RIM games did not infringe Atari’s Canadian or US copyrights.

Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc [2011] EWHC 1981 (Ch) (28 July 2011)

This case raised the question as to whether a UK court could grant an injunction requiring a UK ISP to block a foreign website in order to stop the ISP’s facilities from being used by third parties engaged in unauthorized online file sharing. The Court ruled that making such an order would be a proportionate remedy to counter illegal online file sharing and one which it could make.

The applicants in the case were well known motion picture studios that carry on business in the production and distribution of films and television programmes. The respondent BT is the largest ISP in the UK. The studios brought a test case seeking an injunction against BT pursuant to section 97A of the CDPA to block or at least impede access by BT’s subscribers to www.newzbin.com . The studios brought the application after obtaining an injunction against a previous operator of Newzbin. The order was circumvented by a new unidentifiable foreign operator or operators which continued to operate the file sharing site and to thereby contribute to undermine the market for legal services for movies and TV programmes in the UK.

The UK has implemented Article 8(3) of the EU Information Society Directive with Article 97A of the CDPA which reads as follows:

97A Injunctions against service providers

(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.

(2) In determining whether a service provider has actual knowledge for the purpose of this section, a Court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to –
(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013); and

(b) the extent to which any notice includes –

(i) the full name and address of the sender of the notice; (ii) details of the infringement in question.

(3) In this section ‘service provider’ has the meaning given to it by regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002.

The High Court accepted “that online copyright infringement is a serious problem for copyright owners such as the Studios and the other rightholders who support this application” even though it is one whose impact is difficult to quantify. The Court also noted that other courts in the EU had made similar orders including orders requiring ISPs to block well know file sharing sites such as The Pirate Bay.

The Court gave several reasons for granting the requested relief.

There was substantial evidence that the Newzbin site was being used to facilitate online file sharing in the UK on a massive scale.

BT’s services were used by users to download TV and movie programming, which acts infringed the studios’ copyrights.

The operators of the Newzbin2 website used BT’s services to infringe copyright. According to Arnold J,

Again, it is important to consider the nature of the infringing act and its relationship with the service in question. In the present case Kitchin J’s judgment in 20C Fox v Newzbin establishes that the operators of the Newzbin2 website infringe the Studios’ copyrights in three ways. First, they authorise the users’ infringements. Secondly, they are jointly liable for the users’ infringements. Thirdly, they infringe by making available. The first two ways are different forms of accessory liability for acts committed by the users. Once it is concluded, as I have, that the users are using BT’s service to infringe copyright, then it follows that the operators are too. As for the third way, this consists of “the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and a time individually chosen by them”. The operators make the works available in such a way that users can access them over BT’s network (among others). In my judgment that is sufficient to constitute use of BT’s service to infringe.

BT had actual knowledge of one or more persons using its service to infringe copyright even though it was not proven that BT had actual knowledge of a specific infringement of a specific copyright work by a specific individual.

Section 97A confers on the court a specific and broad jurisdiction to grant an injunction against service providers. This jurisdiction is not confined to the prevention of the continuation, or even repetition, of infringements of which the service provider has actual knowledge.” On the contrary, an injunction may be granted requiring the service provider “to take measures which contribute to … preventing further infringements of that kind”.

The blocking order asked for by the studios required BT to implement an existing technical solution which BT already employed to block child pornography. According to the Court, the order asked for was reasonable: “implementing that solution is accepted by BT to be technically feasible; the cost is not suggested by BT to be excessive; and provision has been made to enable the order to be varied or discharged in the event of a future change in circumstances.”

Further, the requested order was not inconsistent with Article 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. Article 10 and Article 1 of the First Protocol to, the European Convention on Human Rights read as follows:

Article 10 provides:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 1 of the First Protocol provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The blocking order requested by the studios was held to be proportionate having regard to the studios’ rights protected by Article 1 of the First Protocol.

In general, I am satisfied that the order sought by the Studios is a proportionate one. It is necessary and appropriate to protect the Article 1 First Protocol rights of the Studios and other copyright owners. Those interests clearly outweigh the Article 10 rights of the users of Newzbin2, and even more clearly outweigh the Article 10 rights of the operators of Newzbin2. They also outweigh BT’s own Article 10 rights to the extent that they are engaged. The order is a narrow and targeted one, and it contains safeguards in the event of any change of circumstances. The cost of implementation to BT would be modest and proportionate.

The order was also held to be proportionate even though the studios were not required to identify individual URLs corresponding to the individual NZBs files indexed by Newzbin2 which relate to infringing copies of individual copyright works.

In my judgment such a requirement would not be proportionate or practicable since it would require the Studios to expend considerable effort and cost in notifying long lists of URLs to BT on a daily basis. The position might be different if Newzbin2 had a substantial proportion of non-infringing content, but that is not the case.

Bill C-32, The Copyright Modernization Act, did not expressly include any amendment similar to Article 8(3) of the EU Information Society Directive (or Section 97A of the CDPA). The usefulness of such a provision in combating online piracy to protect a domestic market for legal services from infringements enabled by foreign file sharing sites cannot be underestimated, as the Newzbin2 case amply demonstrates.

ITV Broadcasting Ltd & Ors v TV Catchup Ltd [2011] EWHC 1874 (Pat) (18 July 2011)

The TV Catchup Limited (“TVC”) operate an internet based live streaming service of broadcast television programmes, including films, in which the claimants own the copyright. The questions in the case are whether, in providing its live service, TVC communicate the broadcasts and underlying films to the public or reproduce them through buffer copying.

The UK High Court made several important holdings or provisional holdings including the following:

  • • TVC communicate the films and broadcasts to the public (the Court stated its intention to refer the question to the EU Court of Justice (the CJEU)).
  • • TVC reproduce a substantial part of the films in the buffers and on the computer screens in which they are viewed.
  • • There is no reproduction of a substantial part of a broadcast in the buffers or on the screens (the Court stated its intention to refer the question to the CJEU).

One of the important questions in the case is whether streaming programming to individuals in the privacy of their homes is a communication which is “to the public”. The  Court, relying heavily on the CJEU Sociedad General de Autores y Editores de Espana (SGAE) v Rafael Hoteles SL [2007] Bus LR 521 case, provisionally held that the aggregate of individuals who received the programs were to be regarded as a public to whom the streams were communicated.

…the aggregate of the individual communications which TVC make at any given time is properly to be regarded as a communication to the public, as opposed to a plurality of individual and private communications. In Rafael Hoteles it was appropriate to consider the communications to the members of the public in their separate hotel rooms, and to consider as well the fact that the occupants of such rooms are regularly replaced. In my judgment it is appropriate to look cumulatively at the communications in the present case, rather than regarding them as an aggregate of individual ones. I also do not think it matters that the communications are initiated by the users. It is true that user-initiated communications are the subject of the making available right: but in my judgment such communications are a sub-set of the notion of communication to the public, not an extension of it.

In connection with the correct approach to aggregating a number of private communications, TVC relied on a decision of the Court of Appeal of Singapore applying national legislation also based on Article 8 of WIPO Copyright Treaty: RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd [2010] SGCA 43. That case involved a service by which members of the public could request RecordTV to record broadcast programmes on their behalf, on Record TV’s servers. The Court held it was the end users rather than RecordTV who were making the copies of the broadcasts for the purposes of the reproduction right. Accordingly the end users were able to take account of a time-shifting defence. So far as “communication to the public” is concerned, the Court held that there had not been any communications to “the public” and RecordTV was not the party who made the communications in any event. At §26, the Court stated:

“In any case, in view of the modus operandi of RecordTV’s iDVR service, we find that any communications made by RecordTV to Registered Users who had requested the recording of a particular MediaCorp show were made privately and individually. We see no reason why the aggregate of the private and individual communications made to each of the aforesaid Registered Users should transform the nature of such communications into “public” communications. Although any member of the public could register with RecordTV to become a Registered User, he had no immediate access to all (or any) of the MediaCorp shows already recorded by RecordTV. This was because RecordTV’s iDVR service was not a video-on-demand service whereby RecordTV shared a library of recorded works with Registered Users. Rather, a Registered User was only allowed to access and view time-shifted recordings of the specific MediaCorp shows which he had requested to be recorded. Thus, each Registered User had to make a request for a particular MediaCorp show to be recorded for him, and only he could access the show recorded at his request.”

To the extent that this conclusion is inconsistent with one of the grounds for decision in Record TV, I respectfully differ from it. Although the Singapore Court was applying a provision of Singapore law derived from the same international convention, I find it difficult to reconcile the conclusion reached there with the reasoning in Rafael Hoteles and the obvious desire in the Directive to provide for a technologically neutral definition of communication to the public. It would be an unfortunate result if a point-to-multipoint communication were to be actionable but a number of point to point transmissions were not.

The issue of whether online “on demand” transmissions are “to the public” is a hotly contested one. In the US Cablevision case, the US Second Circuit held that transmissions of individually stored programs from networked PVRs to the users was not a public performance because these transmissions are not performances which are “to the public”. The Canadian Federal Court of Appeal reached a different conclusion on three occasions including most recently in two decisions in the Tariff 22 case. The FCA held that the transmission of musical works to individual members of the public as part of purchase and sale transactions are “communications to the public”. The Supreme Court granted leave to appeal on this issue. This appeal will be argued in the Supreme Court this December.

On the second issue, the UK Court ruled or provisionally ruled that making buffer copies of films infringed the reproduction right, but the buffer coping of the TV broadcasts did not. On this issue, the Judge relied on the previous English case,  Football Association Premier League v QC Leisure [2008] EWHC 1411 (Ch) (“FAPL“) as well as the Opinion of Advocate General Kokott in the FAPL reference.

The facts of the present case appear to me to be more strongly in favour of a finding of reproduction in part than those in FAPL, at least so far as storage of the films in the buffers is concerned. Much longer sections of the works are stored. My provisional view is therefore that TVC do reproduce and authorise the reproduction of a substantial part of the films in the buffers and on the screens. Final judgment should await the decision of the CJEU in FAPL however.

I have come to the provisional view that TVC do not authorise the reproduction of the whole or any part of the broadcast either in the buffers or on the screens of users. The evidence does not establish that what exists in the buffers or on the screen at any given time can properly be regarded as a part of the broadcast. There could only therefore be infringement if I were to accept the cumulative or rolling approach to infringement of broadcast copyright. Kitchin J declined to do so for Berne works, following Australian authority to that effect in FAPL at [237] to [230]. I would decline to do so here for broadcast copyright for the same reasons. But it seems to me that this raises a further question as to the meaning of the Directive which is unlikely to be resolved in FAPL. I propose therefore to refer a question or questions to the CJEU on this issue as well.

The issue of whether or in what circumstances buffer copying infringes copyright is also a question that is being litigated in Canada. In the Sirius Canada case, the Federal Court of Appeal recently affirmed a decision of the Copyright Board which held that small buffer copying of musical works in satellite radio receiving devices does not reproduce a substantial part of the musical works received in the use of the service. This decision, which is consistent with the ruling in the ITV case, is the subject of a motion for leave to appeal to the Supreme Court. No decision on the leave motion has yet been rendered.

The Newspaper Licensing Agency Ltd & Ors. v Meltwater Holding BV & Ors [2011] EWCA Civ 890 (27 July 2011)

The Meltwater decision of the UK Court of Appeals canvassed several questions related to whether an online article clipping service can legally be operated in the UK. Justice Proudman of the UK High Court had ruled that it could not. Her reasons for that conclusion included the following holdings summarised by the Court of Appeal:

(1) The headlines to the various articles reproduced in Meltwater News are capable of being literary works independently of the article to which they relate.

(2) The extracts from the articles reproduced in Meltwater News with or without the headline to that article are capable of being a substantial part of the literary work consisting of the article as a whole.

(3) Accordingly the copies made by the end-user’s computer of (a) Meltwater News (i) on receipt of the email from Meltwater, (ii) opening that email, (iii) accessing the Meltwater website by clicking on the link to the article and (b) of the article itself when (iv) clicking on the link indicated by Meltwater News are and each of them is, prima facie, an infringement of the Publishers’ copyright.

(4) No such copies are permitted (a) by s.28A CDPA dealing with temporary copies, or (b) as fair dealing within s.30 CDPA, or (c) by the Database Regulations.

(5) Accordingly, the end-user requires a licence in order lawfully to receive and use the Meltwater News Service.

The Court of Appeal agreed with the decision of the trial judge on all of the canvassed issues.

Central to any digital clipping service is the ability to copy article headlines. A recent Australian case refused to protect headlines under copyright holding that to do so would adversely affect making bibliographic reference to the articles. The trial judge in the Meltwater case declined to follow this decision of Bennett J in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984.  The Court of Appeal affirmed this decision saying:

In these circumstances, the conclusion of Proudman J in paragraph 71 of her judgment that newspaper headlines are capable of being original literary works is plainly correct; indeed at one stage in his argument counsel for PRCA conceded as much. It was not suggested that she was not entitled to accept the evidence of Mr Bromley as indicated in paragraph 70 of her judgment. In those circumstances the conclusion in the last sentence of paragraph 72 that “some of the headlines are independent literary works..” is, in my view, unassailable. I would reject the submissions of counsel for PRCA on this part of the case.

The Court of Appeal also ruled that the reproduction of extracts from the articles comprising no more than 256 characters would inevitably constitute the reproduction of a substantial part of the articles. The Court relied heavily on the CJEU decision in Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16 in which the CJEU held that reproduction of 10 words from an article could be an infringement if the portion copied represented the intellectual creation of the author.

Each time Meltwater produces an edition of its news for a client, depending on the search term or agent, a large number of extracts are taken from a variety of publications, in some cases several from the same article. Given the principles to be applied it seems to me to be inevitable that some of them will constitute a substantial part of the original so as, when copied by the client, prima facie, to amount to an infringement of copyright in the original literary work. What is in issue is not whether any particular extract is a substantial part of the original but whether the conduct of the business of Meltwater is such as, on a balance of probability, likely from time to time to cause its clients, prima facie, to infringe the copyright of the Publishers in the original work so as to justify the making of the declaration. The judge concluded that it was. I see no ground on which this court would be entitled to interfere with her conclusion.

I have, as the judge did, considered the possibility of the extracts constituting substantial parts separate from the headlines. The proper question is whether the relevant part of Meltwater News comprising both the headline and the extracts is such as, when copied by the clients, prima facie, to infringe the Publishers’ copyright in the original work. In my view the probability of that occurring on a regular basis and to a significant extent is substantial. Accordingly the activities of clients of Meltwater in receiving and using Meltwater News are sufficiently likely to constitute prima facie infringements of copyright to warrant the declaration the judge made. I turn then to the various defences on which PRCA relies.

The defendant also contended that its service could not be infringing because the dealings were for the purposes of criticism or review and were fair. The defense of fair dealing was also rejected by the Court.

The defence of fair dealing is conferred by s.30 CDPA. I have quoted its terms in paragraph 14 above. For such a defence to succeed the relevant dealing with the work must be for either (1) the purpose of criticism or review, or (2) reporting current events, and in either event (3) is accompanied by a sufficient acknowledgement. PRCA contends that each of those conditions is satisfied. Proudman J disagreed. With regard to the first she said in paragraph 127:

“The End User does not apply his critical faculties at all to the work, whether the article or the text extracts. The purpose of Meltwater News is merely to enable the End User to decide whether he wants to see the content of the articles. However widely I interpret the expression “criticism or review”, I do not see that the End User’s activities are comprised within it.”

Finally I should refer to the fact that even if these conditions had been complied with Meltwater’s dealings were not ‘fair’. The judge rejected the fair dealing defence on the ground that the dealing was for commercial purposes and was encouraging end-users to infringe the Publishers’ copyright. I agree, and the counter argument put forward by PRCA does not begin to suggest otherwise. I have dealt with the fair dealing defence somewhat cursorily as it was not considered by counsel for PRCA as sufficiently substantial to be advanced orally either in opening or reply. The counter submissions of counsel for NLA both in writing and orally are compelling.

The decision has been subject to considerable reporting and controversy in the UK including here, here, and here.

The scope of the fair dealing defense is also the subject of considerable litigation in Canada. The Supreme Court of Canada has granted leave to appeal in two important decisions related to fair dealing. The first deals with whether the communication to the public of online music previews by online service providers selling music downloads is covered by the fair dealing for research defense. The Federal Court of Appeal in the SOCAN Tariff 22 case ruled it was a fair dealing. The second deals with whether K-12 educational institutions which copy portions of works to give to students for the purposes of instruction, or which instruct students to make copies of portions of works for instruction purposes, can claim a fair dealing defense. The Copyright Board ruled they could not and the Federal Court of Appeal ruled this holding was reasonable.

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