/ 28 June 2005

Fair Dealing

The recent Nelson Mandela art furore begs the question: are the media entitled to publish or broadcast the pictures forming part of the series in dispute? Various areas of the law impact on this, such as sub judice, privacy and copyright.

Sub judice and privacy (and many of the other relevant areas of the law) have already been discussed in this column, so here’s the answer from a copyright perspective.

Copyright is the right to use and exploit a work, such as an article, a photograph or a television broadcast, for financial gain. Because it is intended to protect those who use their intellect to create a work, generally the work of another person may not be used or exploited without the permission of the “author” of the work (author in copyright law is the owner/holder of the copyright in a work). Such permission is usually only granted if some kind of fee or royalty is paid for the privilege. So, generally, the author’s permission must be obtained before any of the Mandela art can be reproduced.

Fortunately for the media, our law contains exceptions to this general rule, which enable a work or part of it to be published/broadcast without having to obtain the author’s consent. Where such an exception is applicable, the author must be credited (if named in the original) and the source of the work mentioned.

Some of these exceptions exist merely as a result of the nature of the work itself:

  • a lecture/address delivered in public (although the author’s consent is still required to make a collection);
  • an article published in a newspaper, periodical or broadcast on a current economic, political or religious topic (unless the author expressly reserves copyright) – so it could be argued that because the Nelson Mandela art is political in nature, it falls within this exception; and
  • news of the day containing mere press information.

Other exceptions contained in our law allow for copyrighted material to be used without the author’s consent — these are known as “fair dealing”. What exactly amounts to fair dealing depends on the circumstances of each case, but our courts have held that to establish if fair dealing is present, one asks whether the economic interests of the author are adversely affected by the conduct of the person copying and using the work. If such conduct and use will mean that the author ought reasonably to have obtained remuneration for the copy, then such use does not amount to fair dealing.

Consequently, copying a whole work, such as the whole series of artworks comprising the Mandela art, will usually not be considered fair dealing. But it is not only the quantity of a work that is copied which is important here: various factors are taken into account by our courts in assessing whether specific conduct amounts to fair dealing. These include: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion of the work used; the effect of the usage on the potential market of the owner of the copyright in and to the work.

Uses of a work that amount to fair dealing include where:

  • the work is reproduced for criticism/review or reporting current events in a newspaper, magazine or on television, such as the broadcast of one of the Mandela artworks as part of a piece regarding the furore;
  • a quotation from the work is published/broadcast (although only to the extent justified by the purpose for which the quotation is published/broadcast); and

  • a work for teaching (again only to the extent justified for its purpose).

Ultimately, although the media have been granted some leeway in relation to what they can publish without obtaining permission from the owner/holder of the copyright in that work, they are still required to act reasonably and fairly when using other people’s work.

Toni Erling is an attorney at Rosin Wright Rosengarten , a firm specialising in entertainment and media law based in Johannesburg. Visit the firm’s website at www.rwr.co.za.