To quote or not to quote – that is the question

Posted on: November 7, 2019 by

As those who have followed our courses (especially our IP Diploma) will know, a big fanfare is often made about the possibilities of the ‘quotation’ exception introduced into UK copyright law five years ago. For institutions that are often users of copyright-protected material, like museums, galleries, archives and libraries, the new exception came with a good deal of promise. Up until 2014, these institutions ‘using’ copyright-protected material (copying a work from their collection, whether physically or digitally for the purposes of publication, labelling, advertising or digitisation) had to do one of two things: (i) obtain a licence from the rightholder or an agency like DACS or (ii) try to justify the use as falling within one of the exceptions under UK copyright law, including most commonly ‘fair dealing’ for the purposes of criticism or review.

Quotation seemed to open up great possibilities. First of all, the exception applied to any type of copyright work. Not just texts, but songs, art, even film. Secondly, it could be used without having to rely on criticism or review. There were some reasonable limits on the way quotation could be used (it had to be ‘fair’, proportional and attribute the original author), but otherwise it seemed rather open-ended. The fear when it was introduced came mainly from photographers’ unions. If photojournalists publish their work, what’s to stop others from simply ‘quoting’ a photograph without permission and getting away with it? In order to allay these fears, the UK Intellectual Property Office published a guidance which said that ‘it would only be in exceptional circumstances that copying a photograph would be allowed under this exception. It would not be considered fair dealing if the proposed use of a copyright work would conflict with the copyright owner’s normal exploitation of the work’ (emphasis added). But what about other visual works, like paintings; did the same logic hold true?

The Court of Justice of the European Union (CJEU)

While it might have become easier (or at least defensible) for an institution to ‘quote’ part of a visual work for a number of different uses, the ground has shifted once more. Over the summer, a couple of interesting copyright decisions from the Court of Justice of the European Union (CJEU) came down that will have consequences for the UK’s quotation exception. The exception after all is not indigenous to the UK. In fact, use for quotation is one of the permissible exceptions under the international Berne Convention for the Protection of Literary and Artistic Works. More importantly, it has its direct source in European law, deriving from the 2001 Information Society Directive, notably as one of the permissible copyright exceptions at Article 5(3)(d). EU Member States can choose whether to implement such an exception – the UK chose to do so in 2014 – but once they do so, they are bound by the jurisprudential definition of the CJEU.

And so these recent cases can have a veritable impact. The first of the two, Pelham v Hütter (29 July 2019, Case C-476/17), related to music sampling, asking the perennial question ‘when a DJ samples pre-existing recorded music without permission, how much is too much?’ One of the defences raised in the case was quotation, and so it came to the CJEU to provide assistance in defining the term. The Court wrote that the essential characteristics of a quotation are the use of a work or extract of a work ‘for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user’ (para 71, emphasis added). Taken together, this must show that the user had the intention of entering into ‘dialogue’ with the original work (para 71). The result inevitably makes life harder for DJs looking to justify the inclusion of a short sample, as well as for artists looking to appropriate found images into their works.

The second case, Spiegel Online v Beck (29 July 2019, Case C-516/17), related to the unauthorised hyperlinking by an online news portal of text found elsewhere online. The primary defence rested upon the exception for reporting current events, so much of the decision sets out the limits of that particular exception (which can certainly be useful to museums in other contexts). However, the CJEU also considered quotation. Similar to the decision in Pelham v Hütter, quotation was said to necessitate a direct and close link between the quoted work and the user’s reflections on it in order to allow an ‘intellectual comparison’ between the two works to take place (para 79).

We thus now know that the quotation exception, if it is used anywhere in the EU – which for now includes the UK – must involve illustrating an assertion, defending an opinion or allowing intellectual comparison; ultimately some form of dialogue between the quoted work and the user. This may have serious consequences for those in the UK relying on quotation to ‘quote’ from a photograph, a painting, a song or a film. It may even have an impact on my conclusions last year in regards to the quotation of thousands of film clips in Christian Marclay’s iconic The Clock installation. The question to be asked now is whether there was veritable engagement with the work being used – a dialogue – that can justify the defence. If not, the use is likely an infringement.

Perhaps the glory days of ‘quotation’, which I’d heralded as part of an annus mirabilis back in a 2014 article for our journal, are already coming to a close. With the recent requirements from the CJEU, quotation is now looking, at least insofar as the UK is concerned, an awful lot like ‘criticism and review’. The ‘dialogue’ referred to by the CJEU necessarily implies a level of critical engagement or commentary, which had already been part of the traditional criticism and review definition. So we are perhaps back where we started. The revolution lasted but five years. And the restoration is already underway.

Image via Wikimedia Commons, CC BY-SA 2.0 @Atlasowa