The Public Interest Defence in UK Copyright Law and the Impact of Ashdown v Telegraph Group - Essay Example

Fiona Kingwill 15 May 2006 The Public Interest Defence in UK Copyright Law and the impact of Ashdown v Telegraph Group .The European Convention on Human Rights became law in the United Kingdom with the Human Rights Act 1998. With effect from November 2000, all Courts must take into consideration the recommendations and decisions of the European Court of Human Rights when making judgement. Article 10 of the European Convention of Human Rights ,specifically protects freedom of expression and the right to receive information.(Sutti) .However, "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 " (Walker) According to Hugues, the Copy right act itself does not define 'fair dealing', the interpretation of which must be judged on the merits of the individual case, allowing the courts the freedom to "tailor their decisions to the facts which are placed before them without having to work their way around an impractical definition". According to Guangyong, the last defence to copyright infringement is termed 'public interest', which is "a newer and less well-developed defence in the copyright field compared with others, whereby the work is deemed important for wider distribution and fair dealing is not applicable". In Hyde Park v. Yelland , Jacob J., "assumed that it may well be that balancing the 'freedom of expression' conferred by Article 10 of the ECHR and the 'right to respect for private life' conferred by Article 8 will involve the judges in just the same or a similar sort of exercise as is involved in judging whether there is a public interest defence" (Sutti) Sutti goes on to say that" commentators were surprised when the Court of Appeal of Hyde Park v. Yelland reversed the decision of Jacob J. denying the possibility of a public interest defence in an action for a copyright infringement." Taking the above as precedent, 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 Lt, which involved important issues of freedom of expression of the press and the right of the public to receive information of legitimate public interest."(Walker) In this case, The Sunday Telegraph reproduced the minute of a private meeting between Ashdown, a prominent politician, and the Prime Minister. Ashdown sued the newspaper for breach of copyright. The newspaper argued that the provision of the Copyright Act 1988 should be interpreted in context with the Human Rights Act 1998 section 3 (1) The Court of Appeal was receptive in principle to the human rights defence: "now that the Human Rights Act is in force, there is the clearest 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 Copyright Act". (Griffiths) But the appeal was decided against the appellant on the basis of fair dealing: the newspaper's activities were not fair because it had taken "too much" of Mr Ashdown's "work product". - this narrow interpretation of Laddie was to lead to criticisms of inflexibility (Griffiths) Sir Morrit assumed " the importance of the right of property and stressed the right of every natural or legal person to the peaceful enjoyment of his possessions. He continued: "intellectual property rights in general and copyright in particular constitute a restriction on the exercise of the right of freedom of expression. Thus Article 10 is engaged"." (Sutti) According to Walker, the right to freedom of expression was cited in the newspaper's argument that 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" (Walker) This, according to Walker, was an indicator of the Court's approach to the case and shows "the 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." Article 10 appears to leave too much leeway for undemocratic interpretation. "In Ashdown v. Telegraph Group Ltd the Vice Chancellor, Sir Andrew Morrit, accepted that Article 10(2) could apply in a case of copyright infringement. He did not explain how and when."(Sutti) According to Taylor et al, the Telegraph Group "also relied on CDPA s171(3), which protects the unauthorised user of a copyright work as follows: "Nothing in this part [of the CDPA] affects any rule of law preventing or restricting the enforcement of copyright, on the grounds of public interest or otherwise." The Court decided that whether considering s171(3) on its own or in the light of the HRA, the Sunday Telegraph had failed to show that its actions were an exercise of freedom of speech in the public interest such that Mr Ashdown's rights under the HRA and CPDA should be restricted." (Taylor et al) who also point out that the "Court of Appeal said there can be 'rare circumstances' where the right of freedom of expression will come into conflict with and supersede the protection afforded by the CDPA and will not fall within any of the exceptions for which the CDPA gives defences such as those in s30, but where free expression should still be permitted to be exercised." By comparison in Hyde Park v. Yelland the decision of the Court of Appeal stated that there was no demonstrable public interest defence to a copyright claim in that specific instance. But, according to Walker, it has been observed that the suggested requirement that there must be a public interest in publication would not, in fact, have been met in several previous cases where the defence has ultimately succeeded. Notably, in BBC v British Sky Broadcasting, the defence did hold, but it is difficult to see convincing justification of public interest over an issue of football match highlights. As Walker points out, this example undermines the court's assertion that a public interest in publication must exist before a fair dealing defence can succeed. 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."(Walker) In addition to the inconsistency of the decision of the Court of appeal, a basic philosophical shift seems to have entered the judgement arena. - "The emphasis placed upon the alleged financial loss of the claimant and the commercial gain made by the defendants, shows an underlying desire on the part of the court to reach a result which achieves fairness between the parties to the action the court chose to uphold the property right of Mr Ashdown over the right of freedom of expression and the public right to receive this information, with a clear emphasis on achieving fairness between the parties rather than the wider consideration of the right of the public to receive information as provided by Article 10 ECHR." (Walker) According to Guanhong, the court held that in such circumstances, a general public interest defence would be available, for which section 171(3) provided the foundation; nonetheless, the court was obedient to the principle laid down by the Court of Appeal in Hyde Park, that public interest defence preserved by that section is confined to copyright in works which are (i) immoral, scandalous or contrary to family life, (ii) injurious to public life, public health and safety The conclusion of the Court of Appeal in Ashdown v. Telegraph Group Ltd is inconsistent with previous decisions and, in particular, the Court failed to explain in which cases such a defence, based on the concept of public interest in association with the provisions of the Human Rights Act 1998, could be permitted if, as is apparent, the exceptions under section 30 of the Copyright Act are not considered enough to protect the right to freedom of expression. Aldous J. in Hyde Park v. Yelland gave a controversial explanation as to whether such an defence could be permitted and Mance L.J. refused to categorize the situation at all: "Whilst account must be taken of the different nature of the right involved in copyright, I prefer to state no more in this case than that the circumstances in which the public interest may override copyright are probably not capable of precise categorisation or definition" (Sutti) The Court of Appeal in Ashdown v. Telegraph Group Ltd also refused to commit itself to controversial definition. According to Sutti, the concept of public interest has been connected with the provisions of Article 10 of the European Convention on Human Rights without a clear explanation of the differences between these two concepts. "It has been said that Public Interest is a nebulous concept, which can, in some cases provide a defence for copyright infringement" (Sutti). But according to Taylor et al "On balance this decision is encouraging for practitioners and proponents of the free expression of the media. It clarifies that the courts will allow unauthorised use of copyright works either under the fair dealing defence or s171(3) public interest exemption, provided the copying is limited to what is required to serve the public interest rather than the commercial interests of the publisher." . In conclusion it can be said that the significance of Ashdown v Telegraph Group has been to illustrate that the defences are too restricted to effectively protect freedom of expression and the public interest defined by Article 10) Although confirmed by the courts that "the public interest exists and such a defence may override copyright in rare circumstances." (Guanhong) the courts are unwilling to risk controversy in the interpretation. The situation is exacerbated by prevailing tendency of the courts on seeing copyright as private property and protecting private property values over values of free speech. Works Cited Griffiths, Jonathan. "Copyright Law after Ashdown: Time to deal fairly with the Public" PTC FORUM: Online Journal of the Patent, Trademark and Copyright Research Foundation. Intellectual Property Quarterly, Issue 3, 2002. 12 May 2006 Guanhong, T. "A Comparative Study of Copyright and the public interest in the United Kingdom and China" (2004) 1:2 SCRIPT-ed 319 http://www.law.ed.ac.uk/ahrb/script-ed/issue2/china.as 16 May 2006 Hugues G. Richard "Fair Dealing: Criticism, Riview and Newspaper Summaries LEGER ROBIC RICHARD, Lawyers, ROBIC, Patent & Trademark Agents http://www.google.com/searchq=cache:lLpkas8ORpoJ:www.robic.com/publication s/Pdf/146-HGR.pdf+Sillitoe+v+McGraw+Hill&hl=en&gl=uk&ct=clnk&cd=3 12 May 2006 Sutti, Studio Legale. MONDAQ .Information Technology & Telecommunications. Italy: "The European Convention on Human Rights: Copyright Implications" http://www.mondaq.com/article.asparticleid=15863 14 May 2006 Taylor Johnson Garret "In the public interest: s171(3) CDPA" Oct 2001 17 May 2006 Walker, Carl "The Defence of fair dealing in copyright is presently too restricted" Intellectual Property Law dissertation (LW 556) 2003 https://www.kent.ac.uk/law/undergraduate/modules/ip/resources/ip_dissertations/20 02-03/Walkerdissertation.doc 15 May 2006 Read More