COMMENT: Platform - Why it pays for agencies to know their rights PR agencies should beware of trying to find loopholes in the NLA ruling recently agreed with the IPR and PRCA, says Ray Walley.

The IPR and the PRCA have recently finished months of negotiation with the Newspaper Licensing Agency over charging for copyright of press cuttings. The result of the ruling will be that PR agencies will have to pay two pence for every photocopy of press cuttings they make.

The IPR and the PRCA have recently finished months of negotiation

with the Newspaper Licensing Agency over charging for copyright of press

cuttings. The result of the ruling will be that PR agencies will have to

pay two pence for every photocopy of press cuttings they make.



The ruling is very clear, however, some PR agencies may still find it

confusing, and some will no doubt try and get around it. This is not

advisable.



Rather than risk infringement actions, agencies should err on the side

of caution and pay the appropriate fee.



The ruling has as its starting point that every edition of every

newspaper is automatically protected by copyright. More or less since

the first statute in 1709, it has been the law that anybody who copies

another’s literary or artistic work has infringed his of her

copyright.



In the context of the NLA deal, one has to realise that if a PR agency

copies the whole or a ’substantial part’ of a newspaper without the

consent of the publisher, it does so unlawfully. ’Copying’ means

reproducing the newspaper, or an extract, in any material form, and

includes photocopying and storing it electronically.



People in the industry would argue thus: ’But newspapers are always

copying each others’ articles aren’t they?’ Certainly, it has been

argued that the practice is so widespread that newspapers should

automatically be allowed to do it, but such arguments have not yet found

favour with the judiciary.



A PR agency cannot copy a whole newspaper, or a whole article from a

newspaper, as this clearly amounts to the copying of a ’substantial

part’.



But what about a three-line quote concerning a client? It certainly

makes sense to argue from an agency point of view that three lines taken

from a 1,000-word article cannot be called ’substantial’. Further, a

collage of six or seven short quotes, taken from different newspapers

cannot infringe copyright of any publication. Or can it?



This is debatable and leads us to the crux of the matter. Each case is

arguable, but PR agencies do not want to risk action from newspaper or

magazine publishers and have to defend copyright infringement cases,

based on their own conclusion each time.



If substantiality is difficult to judge, PR companies might take another

line of defence: that the quote amounts to nothing more than an

’incidental inclusion’. If a film producer incorporates copyright work,

for example a recent oil painting, into a scene, he can often escape

attack by saying that it was merely incidental to the main thing, the

film itself.



Unfortunately, the ’incidental inclusion’ defence does not work for

newspaper articles. The defence is available for artistic words and

film, broadcast etc, but not for literary works.



An enterprising PR agency might try to illustrate its clients’ media

quotes in a multimedia presentation or video, because article S31(1) of

the Copyright, Designs and Patents Act 1988 says that incidental

inclusion of any copyright work in a film is not to be taken as

infringement. But most carry on using paper to illustrate quotes.



The hard fact is that PR agencies now risk infringement actions if they

use extracts from newspapers to illustrate their activity. There is no

foolproof guide as to what is ’substantial’ enough to amount to

infringement, and agencies have no defence based on ’incidental

inclusion’, so they should welcome this latest deal, which creates

certainty for them and which allows them to get on with their jobs,

without looking over their shoulders.



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