March 2005
It was criticism and review sir, honest
The owner of What's On TV (WOT) sued the owner of The Sun (TS) for copyright infringement last week. The Sun ran an advertisement reproducing the What's On TV front cover, next to the front cover of TV Choice and that of its own magazine.
TS argued that it had a fair dealing defence under s 30(1) and 30(2) of the Copyright, Designs and Patents Act 1988 as it was merely engaged in comparative advertising and that its use of WOT's copyright was for the purpose of criticism or review not of the work itself but of the product.
Mr Justice Hart disagreed. He said the desired criticism could have been made without WOT's copyright being infringed. The product merely needed to be identified. Furthermore he said TS had primarily infringed WOT's copyright to advance its own magazine, which did not amount to fair dealing.
Briffa Comment:
This is a good decision. The owners of The Sun were trying it on, they were never seriously criticising or reviewing the What's On TV magazine and the courts were alive to do this.
However, this case does provide a useful reminder that the fair use exceptions are now very narrow and can only be relied upon in limited circumstances.