The Protection of Copyright Owners

“The fair dealing defences may not be entirely satisfactory in view of the various justifications for copyright, but it is not a problem since we have the public interest defence.”

A. Introduction

The protection of copyright owners and their exclusive property rights is limited through several enumerated defences in Ch. III of the Copyright, Design and Patents Act 1988 (CDPA). With the implementation of the Human Rights Act’s provisions into United Kingdom (UK) law in 2000, the exigencies of the fair dealing defence and the necessity of the public interest defence were greatly discussed once more. Copyright and the public interest defence usually tangent each other where information are published, conveyed by a literary work. A critical discussion of public interest also needs to consider the “bigger brother” of freedom of expression. Although copyright law in the UK makes a distinction between ideas and expressions (called the “idea/expression dichotomy” [1] ) of which the latter only enjoys the protection under the CDPA, it does not prevent that those two rights instigate in a conflict.

This paper is aimed to demonstrate the restrictions and dimensions of both the fair dealing and the public interest defence under the UK law. While copyright owners’ proprietary rights need to be balanced out with the public interest of access to information, both defences are under examination for their compliance with UK law, the Human Rights Act and the European Information Society Directive. First, this paper will demonstrate the criteria’s for fair dealing. Secondly, it will illustrate the public interest defence within the scope of fair dealing and Human Right law, in order to answer the question whether the public interest defence is broadly used to justify copyright infringements. The paper will strictly separate between fair dealing and public interest for illustration and clarity; although most cited cases involve both defences.

B. Fair dealing defence

A substantial part of a copyright owners’ work can be used freely under the limited scope of the fair dealing defences. The use has to be for a specific purpose mentioned in the CDPA: research and private study, criticism, review and news reporting (current events). [2] Additionally, incidental inclusion of a work/reading or recitation in public of reasonable extracts from published literary or dramatic works are also not copyright infringements under the CDPA.

Fair dealing for the purposes of criticism and review is permissible for any kind of work except photographs. [3] Section 30 (1) and (2) of the CDPA:

(1) “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.”

(2) “Fair dealing with a work (other than a photograph) for the purpose of

reporting current events does not infringe any copyright in the work

provided that (subject to subsection (3)) it is accompanied by a sufficient

acknowledgement.“

Throughout the UK’s case progression the criteria’s for criticism, review and current events were rendered more precisely but remained hard to determine for a general applicability, i.e. that each case requests its own observance due to special circumstances and facts. In Hubbard v. Vosper [4] , a case concerning the publication of a book by the defendant, critical to Scientology using excerpts of the plaintiff’s confidential materials and code of ethics, the Court of Appeal found that “fair dealing is a question of degree and must be a matter of impression”. Lord Denning M.R. further recognises “that there is little in our law books to help” to determine what for the purposes of criticism and review means. Lord Denning M.R. gives the following guidelines in his judgement: “You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next you must consider the proportions. To take long extracts and attach short comments may be unfair.” [5] Moreover the meaning of “made available to the public” was specified. Lord Denning M.R. did not believe a broad publication necessary in order to fulfil the criterion. On the contrary, it is sufficient when the work is only circulated among a small group; and it might be “of such a general interest that it is quite legitimate for a newspaper to make quotations from it, and to criticise them – or review them- without being thereby guilty of infringing copyright”. [6] With respect to Hubbard v. Vosper the Court of Appeal ruled in favour of the alleged copyright infringer (the defendant), allowing not only criticism on the literary style, but also Scientology’s doctrine.

In ProSieben AG v. Carlton UK Television Ltd. it was strengthened once more that “the terms criticism or review and reporting current events were broad and their precise boundaries could not be precisely defined.” [7] In that case, a German Television company ProSieben recorded and broadcasted in Germany an exclusive interview with Mandy Allwood. Ms. Allwood was pregnant with eight embryos which she proposed to carry full term, despite medical advice. Carlton, a British television company, made and broadcasted a programme on the subject of “chequebook journalism”, in which it incorporated a 30-second extract of ProSieben’s programme. Subsequently, ProSieben alleged Carlton of copyright infringement by using the extract from its programme. In deciding the case the court had to determine whether Carlton was protected under Section 30 (1) and (2). The Court had to raise the issues of whether Carlton used the programme for the purpose of criticism or review and/or for reporting currents events and whether it was used fairly (also with sufficient acknowledgement for criticism/sec. 178 CDPA). In that matter, the court raised an additional issue whether “the programme incorporating the infringing material is a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another’s copyright in the guise of criticism”. [8] Whereas the judge concluded that Carlton had failed to prove that the 30-second extract was included for the purpose of criticism or review, the Court of Appeal held that it falls within the fair dealing of sec. 30(1). The Court of Appeal elaborated that the programme was made for the purpose of criticism of works of chequebook journalism, especially because the extract shown was very short and was not audible with the original English soundtrack; and that the usage did not lead to an unfair competition or exploitation of ProSieben’s rights.

Furthermore, the extent of criticism was further defined in Time Warner Entertainment v. Channel Four Television Corporation [9] . A film “A Clockwork Orange” was used by the defendant to criticize the plaintiff’s decision to withhold it from circulation. The Court explained that “criticism of a work need not be limited to criticism of style. It may also extent to the ideas to be found in a work and its social or moral implications.” [10]

The Hyde Park Residence Ltd v. Yelland [11] case concerned illegally obtained stills from a security camera as evidence for the dwell-time of Princess Diana and Dodi Fayed at Windsor Villa. Proving Mr. Al Fayed’s claim about the time spent by both of them there as incorrectly spread. In Hyde Park Residence Ltd. v. Yelland the Court of Appeal stated that the CDPA makes clear that copyright is a property right. Thus the Court must judge the fairness by the objective standard of whether “a fair minded and honest person” would have dealt with the copyright work, in the manner that The Sun did, for the purpose of reporting the relevant current events. [12] Although Princess Diana and Dodi Fayed already died in 1997 and the newspaper article was published in 1998, it remained current in the sense of sec 30(2) due to the process of publicity. Even though the judge agreed that “events, such as tragedies in which people are killed, continue to be current events so long as the events themselves continue to feature in the news” [13] , he acknowledged that in other cases a contrary view was also plausible. As a result, the Court of Appeal opined that “a fair minded and honest person would not have paid for the dishonestly taken driveway stills and publish them in a newspaper”; especially because that they do not give proof to the intentionally false implemented rumour’s of Mr. Al Fayed that Princess Diana and Dodi Fayed were about to get married. The Court, further, ruled that the amount of stills used were excessive to the fact of relevant time only, denying the defendants a fair dealing defence.

In 2001 the Court of Appeal gave another judgement concerning the publication of confidential information regarding Mr. Paddy Ashdown, a former Member of Parliament and former leader of the Liberal Democratic party. Before Mr. Ashdown was able to publish his memoirs, the Sunday Telegraph published extracts of a minute which Mr. Ashdown prepared after a meeting. The meeting was considered to be confidential and only attended by a few politicians. A copy of the Minute was disclosed to the Sunday Telegraph later, and subsequently a substantial part was published. The defendant relied upon the defences of section 30(1) and (2), the common law defence of public interest and Article 10 of the Human Rights Act. In Ashdown v. Telegraph Group Ltd. the Court found that the Telegraph Group did not make use of the Minute for the purposes of criticism or review; they rather criticised the actions of the Minister, and that for that matter The Sunday Telegraph did not need to copy the Minute at all. The Court found that arguments copying for the purposes of reporting current events could be argued, but that it does not constitute fair dealing. The “Laddie factors” [14] were used to make an assessment about the fair dealing. The three factors are: “(1) whether the alleged fair dealing was in commercial competition with the owner’s own exploitation of the work, (2) whether the work had already been published or otherwise exposed to the public and (3) the amount and importance of the work which had been taken”. [15] The Court of Appeal opined that the Sunday Telegraph’s publication was in conflict with Mr. Ashdown’s own intention to publish his memoirs; that the Minute had not been previously published; and that finally a substantial part was copied. As a result ….

With respect to commercial competition Mr. Griffiths criticises that “a legitimate public interest in reading the works would outweigh any private financial loss to the claimant.” [16] He further comments that in applying the commercial competition criterion, the court does not give enough consideration to a person who uses a copyright work to “ventilate a grievance or to contribute to political controversy”. [17] “If newspapers were not profitable, they would rapidly cease to function as the public’s watchdog.”

C. Public interest defence

1. Origins

Although Parliament acknowledged the public interest defence in section 171 (3) of the CDPA, it had been treated very chequered by the UK judiciary and rarely been used to defeat infringements of copyright claims. Because Section 171 (3) of the CDPA reads as followed: “Nothing in this part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise”, the existence – nonetheless- and the nature as a defence were highly disputed over the years.

The public interest defence has evolved from breach of confidence cases, and was treated as a general principle of common law. [18] Hubbard v. Vosper was used to state the existence of the defence. Lord Denning M.R. states that “in copyright action, we ought not to restrain a defendant who has a reasonable defence of fair dealing. Nor in an action for breach of confidence, if the defendant has a reasonable defence of public interest”. Additionally in Lion Laboratories Ltd. v. Evans [19] the Court brought some clarification and authority for the public interest defence. In that case the police was supplied by the plaintiff with machines to breathalyse potential drunk drivers. Because the machines were not working accurately, there was a fear of innocent people being convicted of drink driving offences. The Daily Express wanted to publish extracts of memorandums obtained from former employees which already suggest that the company was aware of the inaccuracy their machines. The Court of Appeal found that the public defence was available in copyright, although it confirmed a lack of authority for its existence because no Section 171(3) was incorporated in the CDPA yet.

In Hyde Park Residence Ltd. v. Yelland, Jacob J. summarized that the need to balance the right of “freedom of expression” and the “right to respect for private life” under Article 10 and 8 respectively of the European Convention of Human Rights requires judges to continually balance whether disclosure is in the public interest. [20] As mentioned above the case involved illegally obtained stills from a security camera of Princess Diana and Dodi Fayed. The Court of Appeal in Hyde Park Residence took a different view on the defence. Aldous LJ explained that the CDPA “does not give a court general power to enable an infringer to use another’s property, namely his copyright in the public interest”. The existence arises not out of Chapter III of CDPA. Aldous LJ further states that there have been a number of cases where courts have refused to enforce copyright as the works in question were considered libellous, immoral, obscene, scandalous or irreligious.

With respect to confidential information it was held that the public or rather the media have a right to receive information and even an obligation to publish, even if the information has been obtained unlawfully. But the fine line between something of interesting to the public and what is in the publics interest needs to be made.

In Lord Aldous LJ’s view a court is entitled to refuse to enforce copyright “if a work is:

(i) immoral, scandalous or contrary to family life;

(ii) injurious to public life, public health and safety or the administration of justice;

(iii) incites or encourages others to act in a way referred to in (ii)”. [21]

Whereas Mance LJ thought the view of Aldous LJ to be too restrictive, he found the public interest defence “not capable of precise categorisation or definition”. [22]

As a result in Hyde Park Residence Ltd. v. Yelland it was made clear that the defence of public interest is available for copyright infringement claims [23] , although the derivation and criteria’s remained clouded.

In Ashdown v. Telegraph Group Ltd., the Court of Appeal favoured Mance LJ over Aldous LJ view of point in Hyde Park Residence, that there can not be a precise categorization or definition of the public interest defence. In Ashdown v. Telegraph Group Ltd., the Court of Appeal further acknowledges that the right of freedom of expression (as implemented into the Human Rights Act) “trumps the rights conferred” by the CDPA in rare cases. [24] “In those circumstances, we consider that section 171 (3) of the Act permits the defence of public interest to be raised”. [25] Lord Phillips M.R., additionally, commented that this will not lead to a “flood of cases” where freedom of expression is used as a defence of copyright infringements. He considered that the public interest defence “will be very rarely used to justify copying of a form of a work to which copyright attaches”. [26] The Court, however, cited only one example where the public interest defence would work.

“Where the subject matter of the information is a current event, section 30 (2) of the CDPA may permit publication of the words used. But it is possible to conceive of information of the greatest public interest relating not to a current event, but to a document produced in the past. We are not aware of any provision of the CDPA which would permit publication in such circumstances, unless the mere fact of publication, and any controversy created by the disclosure, is sufficient to make them “current events”.” [27] Since Hyde Park Residence and Ashdown, therefore, the public interest defence was recognized and it is use when the public has an understandable and legitimate interest to receive the information.

2. Copyright and Human rights after Ashdown v. Telegraph Group Ltd.

Did the Human Rights Act 1998 (HRA) change the courts approaches towards the publics interest in receiving information within the right of freedom of expression? The HRA came into force on 2 October 2000. In the course of implementation it was expected that the Human Rights Act would have effect on intellectual property regarding the public’s rights to receive information under Article 10. With respect to Article 27 (2) of the Universal Declaration of Human Rights, it should be mentioned that also intellectual property rights under international law are considered to be human rights. [28] While the Human Rights Act was incorporated into UK law the courts were held by the defendants’ arguments to balance the CDPA with Article 10 of the HRA.

In Ashdown v. Telegraph Group the defendants argued that the Court was obliged to interpret sections 30 and 171(3) of the CDPA to be compatible with the right to freedom of expression contained in Article 10 of the Human Rights Act. [29] The Vice-Chancellor in awarding summary judgement, held that legislation fulfilled the requirements set by Article 10; i.e. that the existing defences and limitations in CDPA comply with the HRA. The Court of Appeal followed the Vice-Chancellor in stating that the CDPA must be applied so as to reflect freedom of expression. Furthermore, that freedom of expression may be accommodated by refusing an injunction. And that in rare cases (as mentioned above) the right of freedom trumps the rights of the CDPA, and allows the defence of public interest laid down by section 171(3). The European Court of Human Rights has not yet decided a case were free speech and copyright needed to be balanced but in a number of cases the European Court stressed that the important role of the press as a “public watchdog” [30] . “Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them”. [31] In Fressoz and Roire v. France, the Court considered that Article 10 “leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility …provided that they are acting in good faith and on an accurate factual basis”. [32] (The European Court was concerned with convictions imposed upon an editor and journalist on the French satirical paper, Le Canard echainé. They published an article concerning a salary rise together with copies of the managing director’s tax assessment form (illegally obtained) in a time of industrial unrest. Both were convicted in France, and subsequently proceedings were initiated in Strasbourg for violation of Article 10. The European Court held that “…an interference with the exercise of press freedom cannot be compatible with Article 10 …unless it is justified by an overriding requirement in the public interest. With respect to illegal receipt, the European Court held that “….the public’s right to be informed was outweighed by the duties and responsibilities attributable to the journalists with regard to the suspect nature of those documents.” [33]

The Court in Ashdown v. Telegraph recognised that the freedom of expression enables citizen to express ideas and convey information and that in some circumstances “the public should be told the very words used by a person, notwithstanding that the author enjoys copyright in them”. [34] But the Court of Appeal also found that only in rare cases freedom of expression conflicts the rights set by the CDPA. Article 10 of the HRA protects the information and ideas set out in a literary work without copying the very words used by the author. “Verbatim reproduction would only be necessary in very limited circumstances, for example, as proof of authenticity.” [35]

3. Public interest with respect to the Information Society Directive (Directive)

With the Directive discussions about the fall of the public interest defence have launched again. That is because Article 5 of the Directive permits exceptions and limitations to the exclusive rights of copyright owners, but makes not mentioning of the public interest. It does, however, permit exceptions for the purpose of criticism or review and reporting current events. [36] Since Article 5 makes no mentioning with respect to public interest the end of the defence in the light of the supremacy of European Law over national law is argued. But considering that also the European Convention for the Protection of Human Rights is European Law the Directive needs to be interpreted as compatible with the HRA. Furthermore, the European Union is obliged under Article 6(2) of the Treaty of European Union “…to respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms …as they result from the constitutional traditions common to the Member States, as general principles of Community law.” As a result, the narrow list of Article 5 of the Directive needs to be interpreted in the light of Article 10, allowing the appropriate room for the public interest defence. In consequence the implementation of the Directive into UK law has not had any impact of the public interest defence.

E. Conclusion

According to the UK’s jurisprudence and legislation as thoroughly explained above, the public interest defence is not at all treated as a catch-all provision in case the fair dealing defences do not justify the copyright infringement. Although the public interest defence seems to be a substantive defence since Ashdown v. Telegraph Group, the judges obviously have treated it with great reluctance and hesitation; and are only willing to apply it in rare circumstances. Criticisms on the courts’ judgements remain loudly; especially that fair dealing is limited to current events meets with refusal. Alexandra Sims believes that sometimes also events in the past need to be brought to the public’s attention, criticising the limited scope of current events; that also unpublished works should be considered to fall under a wider defence (public interest defence) because it can be in the nature of unpublished information to be of public interest; and finally that the fair dealing defence does not apply to photographs. [37]

Jonathan Griffiths, for example, criticises that there was no commercial value to be protected from the stills of Diana in Hyde Park Residence; and questioned that Mr. Paddy Ashdown should be entitled to any profit from the Minute, he prepared, working as a Minister. He, further, states that part of investigative journalism is to disclose unpublished information. [38] Furthermore, I agree with him on the fact that copyright law’s main function is to ensure limited monopoly, to protect their profit returns and to reward creativity; which all seemed to be questionable in Hyde Park Residence and Ashdown. In Ashdown the court was “granting him a private monopoly in information acquired in his role as a public servant and, … allowing him to disclose information at a point best calculated to secure maximum personal gain”. [39] (“In the CDPA, fairness should be interpreted in the context of the balance between the private/public interest in maintaining an effective copyright system and the public interest in access to information.” “It is naïve to suppose that information and expression can be neatly divided and that public access to the former can be preserved while reproduction of the latter is prohibited.”

Moreover, the conflict between copyright and freedom of expression concerns two individual rights; of which Griffiths believes the latter ought to receive a higher level of protection. With respect to Article 10 of the HRA, the UK courts demonstrated an unwillingness to engage with, and a misapprehension of the European Court of Human Rights judgements. “States are, however, accorded with a wide margin of regulating the right of property in order to advance the common good” [40] , leaving room for the public interest.

I agree with Jacob J. in Hyde Park Residence who saw the public interest as a safety valve, preventing the worst extremes of copyright law coming to pass. The idea/expression dichotomy is not adhered comprehensively, therefore there is a need for the public interest defence; and the courts have demonstrated that its not been used as a catch-all provision.