Fans of the well known TV series may be interested to read up on a current copyright case before the Central District of California Court. Follow the link to the 1709 Blog for a full account of the case:  Paramount v. Axanar The Ars Technica Blog also covers the case here. The defendents are producing a short film which is a prequel to the Star Trek series. The work in question is intended as a mockumentary by the producers who are firm Star Trek fans. It is not they say designed to compete with anything produced by the rights owners of the original series. Axanor are also working on a longer film in a similar vein.

The plaintiffs on the other hand claim that the mockumentary infringes their copyright as an unauthorised derivative work and cannot be regarded as sufficiently “transformative” to be covered by the US doctrine of “fair use” (although the latter is much wider in scope than the more familar UK concept of “fair dealing”).  Neither can it be justified as a parody in their view.

Possible topics to be discussed include: What constitutes fan art,  how far fictional characters are protected by copyright and whether having “pointy ears” might be a protected characteristic.

The Fair Dealing test has been mentioned before in this blog. The majority of the recently updated exceptions to copyright rely upon this test and so it is in the spot light, although it was already an established concept in UK Copyright law.

In contrast to the concept of “fair use” in US copyright law, which can be applied generally, “fair dealing” in UK copyright law is only relevant in the context of the statutory exceptions. It is a test of whether we are applying the exception correctly and therefore of whether we can rely upon it for protection.

The UK Intellectual Property Office say: “There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?”* Therefore it will always depend upon the context, but two key questions will generally apply:

• Could we be damaging the copyright owner’s interests by our use of their work? For example by producing something in direct competition?
• Are we using more of their work than is really necessary in the particular circumstances.

By way of example, copying an extract for the purposes of setting an examination may be fair dealing whereas reproducing the same material in a published work under the Quotation exception (which applies from 1^st October)might not be fair dealing.

*IPO (2014),Exceptions to Copyright: Guidance for creators and copyright owners