Copyright and the Freedom of Expression

“Copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by copyright.”

Lord Phillips MR in Ashdown v Telegraph Group Ltd [2002] Ch 149

Critically discuss this statement, with particular reference to the defences available for copyright infringement under the Copyright, Designs and Patents Act 1988.

Copyright stems from two types of roots; the entrepreneurial side linked to the exclusive right to make copies and reproduce the work of an author, and the other side being the protection of the author now that his/her work could be copied. [1] Since it was created, copyright has been directed to the protection of a reproduction of work, exclusively concerned with the material expression of the ideas on which the work was based. Copyright is not about ideas, but the way in which they are expressed. [2]

Freedom of expression, on the other hand, is used to indicate not only freedom of verbal speech but any act of seeking, receiving and imparting information or ideas, regardless of the medium used. Before the Human Rights Act 1998 (‘HRA’) came into force, the right to freedom of expression was a negative one: you were free to express yourself, unless the law otherwise prevented you from doing so. [3] However, the right to freedom of expression in Article 10 [4] is not absolute. Interferences with the right to freedom of expression may be permitted if they are prescribed by law, pursue a legitimate aim and are necessary in a democratic society, that is, if it satisfies a pressing social need. Although there are a variety of reasons why we may want to limit the scope or effectiveness of intellectual property rights, the corrosive effect of control on the public domain does not seem to be one of them. [5] Following the introduction of the HRA it now seems that the defences of fair dealing and public interest in the Copyright, Designs and Patents Act 1988 (‘CDPA’) must be interpreted in accordance with the principles of human rights.

The Ashdown Case

In Ashdown v Telegraph Group Limited [6] , the Court of Appeal was invited to consider the impact of the HRA on the scope of the defences for copyright infringement and revive the public interest defence.

The defendant’s arguments, based on sections 30 and 171(3) of the CDPA could be assessed entirely in accordance with the traditional approach applied in those provisions. The introduction of the HRA was found to have no effect on the dispute in Ashdown [7] because legislature had satisfied the requirements of Article 10 [8] by including a series of defences and other mechanisms within CDPA. It was found that, in publishing the ‘minute’, the newspaper was not “criticising and reviewing the minute” itself but was “criticising or reviewing the actions of the Prime Minister and the claimant”. [9]

The Court of Appeal did not agree and held that normally it would not be necessary to infringe copyright in an expression of information in order to meet the right to freedom of expression, as copyright only protects a work’s form. It was also accepted that in certain circumstances, “freedom of expression will only be fully effective where an individual is permitted to reproduce the very words spoken by another”. [10] In certain situations it will not be enough for a speaker to be able to paraphrase information contained in copyright work. [11] Aldous LJ in Hyde Park Residence Ltd v Yelland [12] had not been justified in circumscribing the public interest defence as strictly as he had as in rare situations, the right to freedom of expression could clash with copyright protection. [13] In that case there was a clear public interest in freedom of expression, and s171 (3) of the CDPA allowed it to be raised.

The Defences

There was no appropriate defence in Ashdown [14] , therefore the HRA obliged the court “insofar as it is able, to apply the Act in a manner that accommodates the right of freedom of expression”. [15] The concept of “fair dealing” under section 30 of the CDPA applied in Ashdown [16] focuses exclusively on the interests and conduct of the parties to the proceedings and does not take adequate account of the public’s right to receive information under Article 10. [17] The Court of Appeal did not speculate extensively about the “rare circumstances” in which Article 10 [18] would require a defendant to be permitted to publish a work even though no statutory exception was available. However, they did indicate that “where the subject matter of the information is a current event, section 30(2) of the Copyright Act may permit publication of the words used”. [19] In many cases it was suggested that the court could accommodate the requirements of Article 10 by simply refusing to exercise its discretion to award an injunction. [20] On the other hand, it was also noted that an award of damages, or some sort of financial remedy, may also infringe on the right to freedom of expression. [21]

Only a decision of the House of Lords can resolve the differences between the Court of Appeal as to the nature and scope of any public interest defence. In addition, it is not entirely clear whether the Information Society Directive [22] allows for the preservation of the public interest defence. Article 5(4) of the Directive also provides that any exceptions must be applied in accordance with the ‘three step’ test of the Berne Convention. [23] Exceptions can therefore only be introduced and applied if they refer to special cases, if these cases do not conflict with the normal exploitation of the work and if the exception does not unreasonably prejudice the legitimate interest of the right- holder.

Ashdown v Telegraph Group Ltd [24] tends to confirm that if an infringement of copyright is found to be in the public interest the result may only be refusal to grant an injunction, rather than a complete defence to the infringement [25] . Publication is permitted, but the infringer is made to pay for taking expression and not just idea from the work. It could be said that this is equivalent to allowing one’s privacy to be ‘bought’. (The Douglas v Hello! [26] Case has a similar effect).

In its judgement in Ashdown, the Court of Appeal acknowledged and applied the Laddie factors in alliance with ‘fairness’. [27] These are ‘commercial competition’, ‘prior publication’ and the ‘amount and the importance of the work taken’. With commercial competition, the truth is that in some situations, the legitimate public interest in reading the works would outweigh any private financial loss to the claimant. It is suggested that, even where a defendant uses a copyright work to publicize a grievance or to contribute to a political controversy, the fair dealing defence will only be effective in the absence of commercial competition.

Prior publication involves the disclosure of an unpublished work, which often involves a breach of confidence. The assumption here is that dealings with an unpublished work are unfair. However, investigative journalism derives from “leaks”, and therefore the need to allow publication of previously unpublished works is acknowledged by the Laddie factors.

The amount and importance of the work taken factor illustrates that there must be some proportionality between the legitimate purpose for which the work is used and the amount of work taken. If the defendant is uncertain whether publication will infringe copyright, publication may not take place. This may present a “chilling” effect, especially if there is public interest in the publication of an article.

Intellectual property rights are not only non- excludable and non- rival, they are also temporary and therefore the concept of property is imperfect in itself. On the other hand it has been argued in parallel that copyright was intended to be an engine of free expression. “Freedom of creation is a condition precedent to the existence of freedom of expression.” [28] .

The CDPA calls acts which prima facie fall within the exclusive rights, but are then excused by the statute, the ‘permitted acts’. These are specific acts sanctioned in order to cater for specific areas of interest in access to copyright works. They may be distinguished from acts sanctioned in general terms for all potential infringements, which might be called ‘defences’. No question of any defence arises until it has been established that the defendant’s act being complained of affects the whole or a substantial part of a work.

The fair dealing provisions provide a potential defence to copyright infringement where the defendant can show that his use of the copyright work was fair and that it was for the purpose of criticising or reviewing the work [29] , or for the purpose of reporting a current event. [30] There is thus a two stage test for a fair dealing defence to succeed, firstly the defendant must show that the use of the copyright work was for one of the stated purposes and, secondly, it must be shown that the use of the work was fair. There is no definition of what will constitute a ‘fair’ dealing in the Act but it is well established that this is a question of degree. [31]

At common law judges accepted a defence of publication in the public interest, despite infringement of copyright in the process, as for breach of confidence. It was given statutory recognition for the first time by s171 (3) of the CDPA. No definition of ‘public interest’ is provided, however, leaving this to be determined by the courts. Early precedents state the test as it was in early breach of confidence cases. Hubbard v Vosper [32] and Beloff v Pressdram [33] refer to ‘misdeeds of a serious nature and importance to the country’ and not the test of publication with ‘any just cause and excuse’ (Lion Laboratories Ltd v Evans [34] ). What is clear is that a mere allegation of public interest is not sufficient, nor does the public interest include everything that the media have an interest in publishing, or the public is reading.

As yet it is an unresolved question as to whether the later breach of confidence test can also be applied to infringements of copyright. Some overlap is inevitable because a publication may simultaneously breach both confidence and copyright; both issues were considered in Lion Laboratories Ltd v Evans [35] and the wider test applied.

In Lion Laboratories Ltd v Evans [36] and Attorney General v Guardian Newspapers Ltd [37] both the Court of Appeal and the House of Lords accepted that the copyright defence and the application of public interest in breach of confidence were co- extensive. However, the misdeeds in both cases (wrongful criminal conviction, damage to national security, respectively) would fall within the old, stricter, definition. In Hyde Park Residence Ltd v Yelland [38] the Court of Appeal suggested otherwise. Aldous LJ distinguished the confidence and copyright public interest tests for three reasons. Protection for confidence involved balancing two public interests, confidentiality and the public interest; but copyright was a statutory property right, overridden by public interest if a remedy was to be refused.

A court may also imply a licence in any contractual arrangement between copyright owner and defendant permitting the act complained of. Ownership can be a defence by implying an alternative arrangement as to the ownership of copyright by an employee [39] , or an implication of beneficial ownership in the person commissioning a work. [40] If the case involves architectural plans, terms have been implied in favour of an architect’s client to allow use of architectural plans protected by copyright. Whether such a term may be implied depends on the nature of the contract made.

The House of Lords developed a new copyright defence in British Leyland v Armstrong Patents [41] . (What it is??)The case raise important issues in relation to the creation of copyright monopolies in functional articles, and subsequent changes to copyright and design law brought about by the CDPA have mitigated the undesirable consequences of protection for such works.

Conclusion

Although the terms “copyright” and “freedom of expression” are not antonymic and none of them should prevail over the other, the combination of these notions is nevertheless challenging and the most difficult task remains the striking of a fair balance between them. However, new expression and ideas are rarely (if ever) conjured up from whole cloth; instead they are the result of a vast array of information inputs. [42] We all “stand on the shoulders of giants.” [43]