Page 94 - Law and the Media

Copyright
3.5.2 Incidental inclusion

Section 31 of the CDPA provides a new defence. Where a copyright work is included
‘incidentally’ in an artistic work, sound recording, film, broadcast or cable programme, this
will not amount to an infringement of copyright.

What is ‘incidental’ is not defined. However, the defence is aimed at allowing programme
makers and news broadcasters to show works that might otherwise breach copyright – for
example, capturing background music when interviewing people in the street.

However, Section 31(3) of the CDPA states that any inclusion of a musical work that is
deliberate shall not be regarded as incidental. In such circumstances, it will not be possible
to rely on the defence.

3.5.3 Spoken words

The CDPA recognizes that spoken words that are in any way recorded become the copyright
of the speaker. However, it also allows the media considerable latitude to use or report the
words of others without infringing that copyright.

Section 58 of the CDPA provides that where a record of spoken words is made, in writing
or otherwise, for the purpose of:

reporting current events, or
broadcasting or including in a cable programme service,

use of the record or of material taken from it is not an infringement of any copyright in the
words provided certain conditions are met. These are that:

The record is a direct record of the spoken words and is not one taken from
previous record or from a broadcast or cable programme
The making of the record was not prohibited by the speaker and, where the
copyright already subsisted in the work, did not infringe copyright
The use made of the record or the material taken from it is not of a kind prohibited
by the speaker or copyright owner before the record was made
The use is by or with the authority of the person lawfully in possession of the
record.

In essence, this means that newspapers and magazines may quote spoken words as often and
as fully as they wish providing their purpose is the reporting of current events. Broadcasters
and cable television producers are free to reproduce spoken words for any purpose. If
speakers do not wish their words to be used, the onus is on them specifically to prohibit such
use. These provisions apply whether the words are spoken in private or in public.
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