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
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
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
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
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.