Electioneering and copyright infringement

In the olden days parties campaigned by knocking on doors, holding rallies and sending endless bits of paper to voters. But, what this latest election has shown us, apart from the fact that people seem pretty keen to get Brexit done, is that social media is the new median to reach voters. Whilst this may seem fine in theory, and certainly friendlier to the planet, it does have some problems. Most notably the ease by which media content can now be manipulated and, in this “post truth” world, the propensity for parties to do this.

There have many stories of the last few months about social media campaigns featuring inaccuracies however what’s relatively new, is the use of intellectual property laws, to stop them. The most widely reported of which is the Conservative election ad deleted by Facebook after a complaint from the BBC on the grounds of copyright infringement.

Copyright laws give the owners of literary, artistic and photographic works (amongst others) the right to control the ways in which their works are used, copied or shared. This normally means that if a work is used without permission the use will constitute a copyright infringement.

However, a copyright infringement claim is not always that straightforward and it carries with it a number of “fair dealing defences”. Essentially these are ways to avoid a claim by arguing that you had a good reason to use the content without a licence. The most relevant of these, in the world of political campaigns, are as follows:

Criticism & review

This allows the use of short extracts or quotations for the purposes of critique and review.

If fair dealing is for the purpose of criticism, that criticism can be strongly expressed and unbalanced, without forfeiting the fair dealing defence (although if it is defamatory then that is a separate cause of action).

Quotation

Like the criticism and review exception, the exception for quotation applies to all types of copyright work including film, broadcasts, sound recordings, and photographs as well as traditional text quotation.

The taking of the entirety of a work may be a quotation if the requirement that the extent of use is “no more than is required”, is satisfied.

Reporting current events

Often referred to as the news reporting defence, fair dealing with any category of work, other than a photograph, for the purpose of reporting current events does not infringe copyright in a work provided it is accompanied by a sufficient acknowledgment (acknowledgement is also needed for criticism & review and quotation).

“Current events” in this context includes events of current interest to the public even if they occurred some time in the past.

Caricature, parody or pastiche

This is the big one when it comes to online campaigns. Essentially the law permits an exception in the case of use for the purpose of caricature, parody or pastiche providing that use is fair dealing.

The courts have decided:

• the essential characteristics of parody are to evoke an existing work while being noticeably different from it and to constitute an expression of humour or mockery;
• a parody need not display an original character of its own, except it must display noticeable differences to the original work parodied;
• it is not necessary that a parody could be attributed to a person other than the author of the original work itself, or that it should relate to the original work itself, or mention the source of the work parodied; and
• the exception for parody must strike a fair balance between the interests and rights of authors and other rights holders and the freedom of expression of the person who wishes to rely on that exception—if a parody conveys a discriminatory message, the rights holder has a legitimate interest in ensuring that their work is not associated with such a message.

Of course great care needs to be taken when relying on any of these defence as many carry specific conditions before they can be used. Fortunately however, Briffa offers specialist and expert advice on all aspects of copyright law. So, if you’re a political party planning your next campaign, or a content owner hoping to avoid a feature in the next Brexit party ad, why not email info@briffa.com to discuss your options.

Written by Will Miles, Solicitor