Copyright and FoI: fair dealing and definitions

Copyright is a property right to control who can copy work created by artistic and other intellectual endeavour. The law protects journalism articles, website content, books, photographs, films, sound recordings and music, TV and radio broadcasts.

A staff journalist only has the copyright in an article or photo if the employer specifically agrees to this. Self-employed journalists are the first owners of copyright in their works.

‘anything worth copying is usually worth protecting’

Copyright does not protect ideas – it controls the right to copy the form or manners in which these ideas are expressed. There is also no copyright in facts, news or information.

Journalists are able to lift information from articles – but not word for word from somebody else’s work –they can copy quotes with attribution of the publication.

Fair dealing defences:

• for the purpose of reporting current events
• public interest
• sufficient acknowledgment of the work copied – the work’s title, its author/creator
• fair dealing means fair practice – only a short clip as a preview

Photographs are excluded from the defence because you are using the entire work – this is where creative commons comes into play.

Freedom of Information Act

The Freedom of Information Act created the UK’s first general right of access to information held by government departments and public authorities. The law gives people the right to require public authorities to disclose information they would otherwise not publish.

By law, a public authority should respond to an FoI request within 20 working days, either supplying the information or explaining that it cannot do so because:

• it does not hold it
• providing it would exceed the cost limits
• it is exempt from disclosure

A requestor’s reason for wanting information plays no part in an authority’s decision on providing it.

There are exemptions to requests that can be made – these are absolute and qualified exemptions.

Examples of absolute exemptions include: security services or court records.

Examples of qualified exemptions include: ministerial communication and commercial confidentiality.

If information has qualified exemption you should still be given if it is in the public interest and passes the public interest test.

You can ask for an internal review if a request is refused and you can also raise it with an information commissioner, information tribunal or even the High Court.

The other laws surrounding information are The Data Protection Act and The Official Secrets Act. The Data Protection Act aims to protect information away from public domain with respect to personal data. The Official Secrets Act protects sensitive material and documents relating to the defence of the UK.

 

Qualified privilege: defence requirements

Qualified privilege is a defence for the publication of certain types of information that are in the public interest. There is no requirement for the publisher to prove the information is true.

The defence applies to media reports of press conferences, Parliamentary debates held in public and, public meetings of councils. It also applies to media reports of statements issued for the public by government, councils, police etc. QP protects non-contemporaneous reports of court cases, including references to people’s past convictions.

For absolute privilege, the publisher’s motive is irrelevant but for qualified privilege, if the claimant can show malice the defence fails.

Requirements/key points:

• Fair and accurate, without malice, and in the public interest
• Is there a requirement to publish explanation or contradiction? -An example of QP without explanation or contradiction would be proceedings of a legislature anywhere in the world.

  An example of QP with explanation or contradiction would be material reported at a public meeting

• Statute only protects a report of the occasion, not statements said out of the environment
• Reports of public meetings, press conferences, scientific and academic conferences held anywhere in the world
• Documents handed out in public meetings or press conferences have QP
• Not all authorities are covered but some are covered by privilege at common law
• Verbal comments by press officers are generally covered by QP
• Disciplinary actions by private associations

Inquests are court hearings, and so are covered by the law of contempt of court, which can affect media coverage.

Tribunals can make temporary anonymity orders in cases involving sexual misconduct. Contempt law applies to tribunals that are classed as a court. Media reports of the public proceedings are protected by QP and by absolute privilege when reports are contemporaneous.