Carl Walker

Intellectual Property Law dissertation (LW 556) 2003

Tutor: Alan Story

“The Defence of fair dealing in copyright is presently too restricted”

Abstract:

The defences of fair dealing and public interest to infringement of copyright have been applied by the courts in a manner which is too restrictive to protect the right to Freedom of Expression in Article 10 of the European Convention of Human Rights. In particular the courts rigid adherence to the ‘Laddie factors’ in its assessment of fairness in the key case of Ashdown v Telegraph Group does not pay sufficient regard to the requirements of Article 10. Article 10 requires consideration of further factors before dismissing the reproduction of a copyright work as unfair. Compliance with Article 10 would be achieved more effectively if the court paid more attention to the nature of the work itself before embarking on a rigid application of the Laddie factors. Where there is an issue of legitimate public concern raised by publication the courts should be hesitant in finding that publication would be unfair.

Introduction.

Chapter III of The Copyright, Designs and Patents Act 1988 (CDPA) provides a variety of defences to a claim of copyright infringement. The focus of this essay is the defence of fair dealing in Section 30 of the Act and the public interest defence in S.171(3) and their compatibility with the Provisions of the Human Rights Act 1998.

The fair dealing provisions will 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[1], or for the purpose of reporting a current event[2]. 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[3].

Following the introduction of the Human Rights Act 1998 (HRA) it now seems that the defences of fair dealing and public interest in the CDPA must be interpreted in accordance with the principles of human rights. Of particular relevance in this context is Article 10 of the European Convention of Human Rights (ECHR), which protects freedom of expression and the right to receive information[4].

There is clearly a potential for conflict between the right to freedom of expression and copyright protection, with the need to strike a balance between the right to freedom of expression and the copyright owners right to copyright protection. It is made clear in S.1(1) of the CDPA that copyright is a property right and, as will be seen, this has led the courts to take a restrictive approach to the defences of fair dealing and public interest. It is suggested that this restrictive approach has led to an undue restriction on freedom of expression, and that the courts failure to pay sufficient regard to freedom of expression, when considering defences to copyright infringement, has resulted in these sections of the CDPA being applied in a way that is incompatible with Article 10 of the ECHR.

Ashdown v Telegraph Group Ltd.

The first time that the English courts fully addressed the issue of the impact of the HRA on copyright law was in the case of Ashdown v Telegraph Group Ltd[5], which involved important issues of freedom of expression of the press and the right of the public to receive information of legitimate public interest. The copyright work at issue was the minute of a confidential meeting between Paddy Ashdown, leader of the Liberal Democrats at the time, and the Prime Minister, concerning the possibility of forming a coalition cabinet and closer cooperation between the two political parties. When Ashdown (the claimant) resigned from his position as party leader in 1999 it became known that he was planning to publish diaries of his political career. Soon after, the defendant newspaper was given a copy of the minute without the claimant’s knowledge or approval, and later published an article containing several verbatim quotations from the minute.

The claimant brought proceedings for copyright infringement and the newspaper sought to rely on defences of fair dealing under S.30(1) and (2) CDPA and public interest under S.171(3) CDPA, along with the right to freedom of expression under Article 10 ECHR. The Court of Appeal found against the newspaper in each of these defences. However, the decision is highly unsatisfactory due to the restrictive approach the Court takes to the fair dealing and public interest defences, and, particularly, for the insufficient regard paid to the right to freedom of expression. There are a number of criticisms that can be made of this decision and this is best approached by looking at the Court’s approach to each of the defences in turn.

The effect on copyright of the Human Rights Act.

The first reference made to the right to freedom of expression was in the newspapers argument that, although the provisions of the CDPA in relation to fair dealing satisfy the requirements in Article 10(2) ECHR, of being ‘prescribed by law’ and ‘for the protection of rights of others’, the Act was incapable of satisfying the requirement of being ‘necessary in a democratic society’. At first instance this argument was rejected with Morritt V-C stating that,

“The provisions of the Act alone can and do satisfy the 3rd requirement of article 10(2) as well. The needs of a democratic society include the recognition and protection of private property… Such property includes copyright”[6]

This passage provides an early indication of the Court’s approach to the case and shows the unfortunate emphasis that is placed on the protection of private property values over the values of free expression. This led to a finding that the provisions of the CDPA as a whole were adequate to protect the right to freedom of expression, implying that the Human Rights Act is of little relevance to copyright cases. This finding is highly contentious in the sense that Article 10 clearly requires more than a legislative framework which can secure compatibility. This was acknowledged by the Court of Appeal, which stated that in the rare cases when freedom of expression and the protection offered by the CDPA come into conflict, it will be necessary for the court ‘to look closely at the facts of individual cases’[7]. This would clearly seem to be correct because the freedom of expression in Article 10 is concerned with protecting the rights of individuals to freedom of expression. Therefore, it seems that this must require the court to consider whether Article 10 is satisfied in relation to the facts of the individual case, rather than whether the legislation as a whole is capable of satisfying Article 10.

The acceptance by the Court of Appeal that the Human Rights Act requires a consideration of compatibility on the basis of the facts of the individual case seemingly paved the way for a detailed consideration of the compatibility of the CDPA with Article 10. However, despite this, the court failed to pay any detailed regard to the human rights issues and embarked on a consideration of the defences of public interest and fair dealing, only considering the human rights impact at the end of the judgement, effectively as a mere after-thought.

The Public Interest Argument.

The newspaper sought to argue that their reproduction of parts of the minute in their article was justified by the fact that there was a public interest in their publication. The problem with this argument is that S.171(3) CDPA[8] provides no definition of what will be in the public interest. At first instance Morritt V-C held that the test was that adopted by Aldous LJ in Hyde Park v Yelland[9], that the court’s jurisdiction to refuse to enforce copyright was ‘limited to cases where the enforcement of copyright would offend against the policy of the law’. Unsurprisingly, this narrow test led to the rejection of the public interest defence at first instance in Ashdown.

The Court of Appeal, however, felt that this test was too restrictive and preferred the reasoning of Mance LJ in Hyde Park. He stated that,

“The circumstances in which the public interest may override copyright are probably not capable of precise categorisation or definition”[10]

The court went on to say that, following the introduction of the Human Rights Act, there was a clear public interest in giving effect to the right of freedom of expression in those rare cases where this right trumps the rights conferred by the CDPA. It acknowledged that in such circumstances S.171(3) would permit the defence of public interest to be raised. Having acknowledged that the public interest can override copyright, and that the Human Rights Act will be a significant influence on when this will be the case, the court ultimately rejected the public interest defence. Without any real consideration of the public interest in freedom of expression

However, Ashdown was arguably a case where the right to freedom of expression, including the right to receive information, required publication of the copyright work. There is clearly a legitimate public interest in the contents of the minute since it relates to a matter of real political importance, namely the future composition of the cabinet. This suggests that the contents of the minute are clearly of importance to the public in the way that it could affect their opinions of the government which it trusts to run the country. In view of this, there is a strong argument that this is a situation where the right to freedom of expression trumps copyright and that the public interest justifies publication of the article, including the quotations taken from the minute of the meeting.

The fair dealing arguments.

The court rejected the defendant’s argument that there was a potential defence of fair dealing for the purposes of criticism or review under S.30(1) CDPA. It accepted the reasoning of the judge at first instance, that,

“What is required is that the copying shall take place as part of and for the purpose of criticising and reviewing the work. The work is the minute. But the articles are not criticising or reviewing the minute; they are criticising or reviewing the actions of the Prime Minister and Mr Ashdown. It was not necessary for that purpose to copy the minute at all.”[11]

I would argue this finding in the way that although it is fair to say that the real object of criticism or review in the newspaper articles is the conduct of the Prime Minister and Mr Ashdown, and not the minute itself, this should not automatically preclude a defence of fair dealing under S.30(1). It was held in Hubbard v Vosper that ‘a literary work consists, not only of the literary style, but also of the thoughts underlying it, as expressed in the words. Under the defence of fair dealing both can be criticised.’[12]

This appears to give rise to an argument that the defendants were entitled to use the minute as part of their criticism of the conduct of the Prime Minister and Mr Ashdown. If the minute is considered to be the literary work then an extension of the principle in Hubbard would suggest that the newspaper are justified in copying parts of the minute for the purpose of criticising the conduct of the claimant as this could be argued to be the thoughts underlying the work. If the purpose of the article is to criticise the conduct of the parties in holding secret meetings regarding political cooperation between them, then the content of the minute is clearly of significant importance in backing up the newspapers criticisms.

The Court of Appeal went on to find that the meeting between the Prime Minister and Mr Ashdown was a current event of interest to the public and that the defendants would therefore have a potential defence of fair dealing for the purpose of reporting current events under S.30(2) CDPA, provided that the use of the copyright work was fair. This finding is clearly correct as the nature of this work, i.e. a meeting between two of the most important political figures in the country regarding cooperation between two major political parties, is a matter of real public concern, in that it could affect the way people vote if they know of conduct of the political parties of which they disapprove.

This finding appeared to leave it open for the court to find that the defence of fair dealing under S.30(2) was made out, by analysing the fairness of the defendant’s use of the work with regard to the Human Rights Act. However, the court’s restrictive approach to the assessment of fairness led to an ultimate finding that the defendant’s publication of the quotes from the minute was not fair.

The Court’s Assessment of Fairness.

The most important aspect of the decision in Ashdown was the court’s approach to the assessment of fairness. From a human rights point of view, this was also perhaps the most disappointing aspect of the decision. The court began by saying that,

“Section 30 will normally afford the court all the scope that it needs properly to reflect the public interest in freedom of expression and in particular, the freedom of the press. There will then be no need to give separate consideration to the availability of a public interest defence under section 171(3).”[13]

However, even if the provisions of S.30 are felt to be adequate to resolve the dispute, this does not relieve the court of its obligations to consider the public interest and also whether the right to freedom of expression has been unjustifiably restricted on the facts of the individual case. It is submitted that the public interest justification does require separate consideration, it is after all included in the CDPA as a separate defence which would suggest that the intention when the Act was drafted was that the defence should stand alone. I would also argue that in a case such as this, where there is clearly a public interest in learning of the contents of the minute, public interest requires consideration separately. This is especially the case now that the Human Rights Act requires what is in the public interest to be considered in light of the freedom of expression and the right to receive information protected by Article 10 ECHR. In a case such as this, concerning matters of legitimate public concern, there is a strong argument that the public interest in upholding the freedom of expression should outweigh the need to protect the property rights of the copyright holder. It also seems strange that the court adopted the wider view of public interest in favour of the restrictive view of Aldous LJ in Hyde Park v Yelland[14], only to restrict its approach to the public interest by stating that it did not even require separate consideration.