Fair Dealing For The Purpose Of News Reporting

• Published date: 31 May 2022
• Law Firm: Goldman Sloan Nash & Haber LLP
• Author: Mr John McKeown

In HRH The Duchess of Sussex v. Associated Newspapers Limited [2021] EWHC 723 (UK Ch.), the appeal dismissed [2021] EWCA Civ 1801 (UKCA), the plaintiff's claim for infringement of copyright relating to a letter written by her and its publication in the defendant's papers was allowed. On appeal, the UK Court of Appeal considered the defendant's attempt to rely on fair dealing for the purpose of news reporting. The judge, at first instance, rejected the defence. The main reason was that the reproduction of the letter was essentially for the purpose of reporting its contents, which was not a current event, and that the use made of the letter was not fair.

On the appeal, the court said the defendant knew it was dealing with unpublished work, it copied a large and important proportion of the work's original literary content, most of which infringed the claimant's privacy rights and was disproportionate to any legitimate reporting purpose. The fairness of the reproduction was very limited. Importantly the use made of the letter was unfair because it was not about reporting current events but reporting the actual contents of the letter splashed as a new public revelation.

Assessing the Similarities between Works

In Pyrrha Design Inc. v. Plum and Posey Inc.2022 FCA 7 referring to Robertson v. Thomson Corp., 2006 SCC 43 the court confirmed that in action alleging infringement a reviewing court must engage 'in a qualitative and holistic assessment of the similarities between the works". In determining whether a work or "any substantial part thereof," has been reproduced, what will be determinative is the extent to which the item said to be a reproduction contains within it, in qualitative rather than quantitative...