PAUL SAMAEL

In my last post, I discussed using peer review sites as a way of trying to get positive reviews in order to promote my work.  But is it really OK to use these reviews (or snippets from them) as part of your own publicity material?  Well, this post from the management of You Write On.com (YWO) suggests that it is OK so far as they are concerned:

http://www.youwriteon.com/forum/quoting-crits-on-blurb-Topic-11796-1.aspx

But there is a lot of online commentary suggesting that you need permission from the individual reviewer before you can quote them in any publicity.  This is fine if they are readily contactable and will agree – but to take YWO as an example, many of the reviewers don’t provide contact email addresses (and trying to contact them via the YWO message boards depends on them seeing your post – which is rather hit and miss).

So what is the legal position on permission ?  My view is that it’s always better to get it if you can, but for short snippets, properly acknowledged, you will normally have a couple of lines of defence to any allegations of copyright infringement.  Here’s my reasoning – but as we lawyers always like to say this is just my personal opinion and none of it is intended to be taken as legal advice on which you can or should rely – and it only covers the position under English law (I feel so much better now that I’ve got that out of the way):

Copyright is an issue here because a review is someone else’s copyright work.  It may not be as stunningly creative as your novel but the threshold of originality for copyright to apply is very low – even something as dull and uncreative as this blog post is likely to qualify for copyright protection.  In quoting from a review, you may be infringing copyright – you are, after all, copying out words that “belong” to someone else.  However, there are two lines of defence which may assist you if faced with an accusation of copyright infringement over a review quote:

First, to infringe copyright, you must be quoting a substantial part of the work.  “Brilliant !” could, in theory, be a substantial part if it amounts to the essence of the review - or if the review is extremely short.  But quite often, that won’t be the case, so this first line of defence – that you didn’t quote enough of the review to infringe copyright – will often be worth a try.

Second, at least so far as UK copyright is concerned, you may have a defence to infringement under section 30 of the Copyright Designs and Patents Act 1988, which says this:

“Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.”

NOTE:  since I wrote this, the Act has been amended so as to widen this concept - see end of article.

Now you might say, surely this section is not intended to allow authors like me to quote from reviews – it must be primarily intended to ensure that reviewers can quote short excerpts from my work without fear of me suing them for copyright infringement (because I didn’t like the review and I am a vengeful and vindictive so-and-so)?  Well, that may be so, but if I quote a snippet from someone’s review of my work, my aim is to convey to other potential readers what someone else thought of my writing;  I am therefore using the snippet “for the purpose of criticism or review”.  It is true that the criticism or review relates to my work, not the work of the reviewer (I am not, of course, reviewing the reviewer’s review).  But the section specifically allows for the possibility that the “criticism or review” relates to “another work”, not the actual work being quoted. 

So in my view, section 30 may offer a measure of protection as well.  You must, of course, remember to acknowledge the reviewer – and if you quote misleadingly from the review (e.g. taking words out of context) then you are likely to fall foul of the concept of “fair dealing” (to say nothing of UK and EU consumer protection legislation which outlaws misleading advertising/ product descriptions).

You must also make sure that the review has been “made available to the public.”  In many cases, it will have been – but if you obtained it by email from an individual who you had asked to review it, the review will not have been made public (it will only have been shared between the two of you).  As a result, you will either need to ask permission or rely on the “insubstantial part” argument.

So to sum up – get permission if you can, but if you can’t, make sure that (i) you only use a short snippet from a published review; (ii) you attribute it properly; and (iii) the quotation is not misleading or taken out of context. 

UPDATE:  The Copyright Designs and Patents Act 1988 has been amended with effect from 1 October 2014 so that the section dealing with quotations now says this:

"Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that—

(a)the work has been made available to the public,

(b)the use of the quotation is fair dealing with the work,

(c)the extent of the quotation is no more than is required by the specific purpose for which it is used, and

(d)the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).”

This means there is no longer a requirement to show that the purpose of the quotation is for criticism or review - so that's one less thing to worry about.  What you do need to show is that the use amounts to "fair dealing."   The law doesn't specify exactly what this means (and never has done).  But in my view, you should consider 2 issues:

1.  Is the amount you've quoted reasonable and not misleading or taken completely out of context?  Generally, you shouldn't quote more than you absolutely need to.

2.  Is your use of the quotation likely to adversely affect the amount of money that the author of the work you are quoting from could reasonably expect to earn from their work?  So if, for example, the review author gets paid every time someone looks at their review online (which in my experience would be extremely rare), then you might be on shaky ground unless you have their permission (especially if you have quoted almost the entire review, so there's no longer any reason for anyone to seek out the original review to read the whole thing).  But in practice, it's hard to think of too many situations where reviewers would stand to lose serious money just because you've quoted an excerpt from their review.  Indeed, if you can link back to the full text of the review (assuming it's online), then so much the better, because that may help them get more readers too - so everyone benefits.

You might also be interested in:

• Copyright - is it a bad thing?
• Copyright registration - is it worth it?