IPC Media Ltd v News Group Newspapers Ltd
Reference:  EWHC 317 (Ch);  EMLR 532;  FSR 35
Court: Chancery Division
Judge: Hart J
Date of judgment: 24 Feb 2005
Summary: Copyright - Comparative advertising - Comparative Advertising Directive - Fair dealing for purpose of criticism or review - s.30(1) Copyright, Designs and Patents Act 1988 - Fair dealing for the purpose of reporting current events - s. 30(2) Copyright, Designs and Patents Act 1988
Instructing Solicitors: Arnold & Porter for C; Farrer & Co for D.
The Claimant published a weekly magazine called ‘What’s On TV’ and owned the copyright in the magazine’s layout and logo. The Sun, a newspaper published by the Defendant featured a picture of the front page of What’s on TV in a comparative advert alongside an image of the Sun’s own listings magazine and ‘TV Choice’. The Claimant sought summary judgment on the basis that the Defendant had infringed its copyright and the use did not amount to fair dealing. The Claimant also contended D was in breach of contractual undertakings given in 1998 when a similar complaint was made by the Claimant but resolved by the parties. D argued that use made did not interfere with C’s ability to exploit its copyright and constituted informative, comparative advertising.
(1) Whether the Defendant’s use of the logo and image of the front page amounted to fair dealing within s. 30(1) and (2) of the Copyright, Designs and Patents Act 1988 and was for the purpose of criticism or review of C’s work; whether the Defendant was in breach of undertakings given in 1998 not to use the Claimant’s copyright material; (3) whether summary judgment should be granted
Granting summary judgment,
(1)The kind of criticism in question did not constitute criticism of C’s work within the meaning of s. 30(1) – the desired criticism could have been made simply by identifying the C’s work.
(2) There was nothing in industry practice or case law to indicate that the use of copyright material in comparative advertising represents fair dealing for the purposes of criticism or review or the reporting of current events.
(3) The principal function of copyright in publishing is to identify a product for its maker’s benefit. Copying the Claimant’s work for commercial purposes allowed the Defendant to take advantage of the work that had gone into creating the literary and artistic identity of the product.
(4) The Claimants also succeded on their contractual claim.
The Defendant placed great reliance on the value promoted by the Comparative Advertising Directive as a justification for fair dealing. The Court dismissed this argument, finding that the Directive had no direct effect as between the parties or application to the factual issues as it is primarily concerned with trade marks rather than copyright. But the effect of this would seem to be to allow claimants to sidestep the protection the Directive offers if they can claim for copyright rather than trade mark infringement. The European Court of Justice might take a rather different view.