MARTIN DILLON, being duly sworn, deposes and says:

1. I worked full-time for the BBC in Northern Ireland for 20 years, from 1973 to 1993, as a senior news producer, news reporter, and program editor. For the purposes of this affidavit, it is perhaps most relevant that I spent the four most recent of those years producing and editing dozens of factual BBC television programs. After I resigned from my full-time BBC position in 1993, I produced documentaries for several prominent media entities, including Channel Four, which is a major British public service television network, RTE, which is the major Irish television network, and again, the BBC. I am thoroughly familiar with the customs, standards and practises of the television industry in the United Kingdom, and more particularly, within the BBC. I also know the history of the "Spotlight" program and have worked with Chris Moore, the reporter for the "Spotlight" edition at issue in this action. In addition, I am familiar with the BBC’s structure and nature.

2. I am also the author of 10 books of non-fiction and fiction, six of which have been bestsellers in the United Kingdom. My writings have addressed current political conflicts, global terrorism, undercover intelligence wars, cyberterrorism, information technology warfare, history and politics in general. Some of my best known books are about the conflict in Northern Ireland and include The Dirty War, The Shankill Butchers: A Case Study in Mass Murder, and God and the Gun: The Church and Irish Terrorism. Incidentally, the first two of those books were referenced (by means of visual depiction) in the BBC documentary at issue in this case (the "Documentary"). I also have written a novel and two plays. I now live in New York City.

3. I do not know the plaintiff in this lawsuit, nor do I support his Irish republican cause. Indeed, I have been highly critical of the Irish Republican Army ("IRA") in many of my books, including 25 Years of Terror: The IRA’s War Against the British, The Enemy Within: A History of the IRA in Britain, and The Dirty War. I submit this affidavit as an expert witness only at the request of the plaintiff’s counsel, for the purpose of advising the Court in connection with factual issues concerning the nature of the BBC and its use of the song, "Fenians" (the "Work"), in the Documentary.

4. I have viewed the Documentary in preparation for this affidavit, and I also have read the affidavits of BBC producer Justin O’Brien and plaintiff’s witness Daniel Polin. In my professional opinion, based on my many years of experience, Mr. Polin is correct in his assessments as stated in paragraphs 9, 11, 12 and 13 of his affidavit, which I adopt without reservation.

5. In my own professional opinion, the Documentary did not convey whether or not the Work was a theme tune for the Radio Free Eireann program, in part because there was no acknowledgement or reference to the Work beyond its usage.

6. In any event, based on my years of experience at BBC Northern Ireland, I can say confidently that every BBC producer there knows that copyrights should be cleared (i.e., licensed) when using music, irrespective of whether it is the theme tune of another program or network. As for the BBC’s explanation in this case, namely, that the BBC assumed it had obtained the right to use the Work when it obtained permission from Radio Free Eireann to tape the radio program, this is inconceivable. The well-known internal guidelines of the BBC, known to every producer, require that permissions must be obtained from copyright owners or their representatives, not from third parties or licensees. 

7. In addition, the Work was not, in my opinion, used as a bridge between program sequences, but rather as a deliberate stylistic and editorial device. The music and vocals amounted to an aesthetic enhancement that added "punch" to an otherwise typical BBC program which was long on official information and short on hard evidence or investigative reporting. Editorially, the lyrics of the Work, which are prominently featured, suited the program dynamic of portraying Irish American republican sympathizers as hard-edged. Moreover, the extraordinary use of approximately 50 seconds of the Work constitutes proof that the producer must have concluded that the Work was extraordinarily useful to the Documentary. The above facts make it doubly plain that under the BBC’s standard practises, a copyright license should have been obtained, given the BBC’s substantial exploitation of the Work, both qualitatively and quantitatively.

8. Having been advised by the plaintiff’s counsel that the nature of the BBC is a relevant issue in this case, I can advise the Court, based on my first-hand knowledge of the company, that the BBC is managed essentially like a commercial business. Like any for-profit television company, it competes in the commercial television market. Its chief competitors, Sky Channel, Independent Television News, and Channel 5, are all for-profit entities. Although the BBC’s enormous revenues come largely from taxes ("license fees") paid by television viewers, rather than from advertising, its efforts to maintain those revenues are similar to those of any commercial broadcaster. To counter its critics in the British parliament who would like to cut or even eliminate the BBC’s license fees and cut the high salaries of its executives, the BBC, like any commercial broadcaster, strenuously endeavors to maintain and increase its audience. Moreover, the BBC raises additional revenues by operating several profit-making commercial divisions, such as BBC Worldwide (including BBC America) and BBC Resources. In recent years, the BBC increasingly has sold or privatised many of its public service operations, while expanding its for-profit, commercial operations.

9. BBC Northern Ireland in particular, especially in relation to its "Spotlight" series at issue in this lawsuit, has as its chief mission the maintenance and expansion of its audience. The BBC’s use of the Work in the Documentary, to the extent that the Work enhanced the Documentary’s appeal and strengthened its message, served that mission. The fact that BBC Northern Ireland is a not-for-profit entity has no effect on its motives for exploiting the Work.

10. Lastly, at the trial of this action, I intend to testify concerning the reputation of the BBC among the nationalist and republican communities from which I understand the Plaintiff derives his fans in Northern Ireland. In those communities, the BBC widely has been seen as an integral part of the structure of British/Unionist rule in Northern Ireland. Because of this public image, there is considerable antipathy toward the BBC in the nationalist and republican communities.

11. If there were to be a trial of this action in the United Kingdom, and if the plaintiff were to retain me to testify there, I certainly would require him to pay for my airfare, hotel, and meals, as well as for my travel time. None of these extra expenses would be incurred if the trial were held in New York City, where I have lived since 1998.

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MARTIN DILLON

Sworn to Before Me

This_____ Day of August

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Notary Public