Molfetas-Lygkiaris Aris
March 2006
The conflict between
copyright and free speech
Intellectual Property Dissertation
Word Count: 5000
LW556 Convenor: Alan Story
CONTENTS
Abstract ........................................................................................................................ 3
Introduction .................................................................................................................. 4
The demise of copyright’s deontological nature ...................................................... 5
The conflict in continental Europe ............................................................................. 7
a) Germany .............................................................................................................. 10
b) The Netherlands ................................................................................................. 11
c)
France ................................................................................................................. 12
d)
The European Institutions' approach .............................................................. 13
The United Kingdom approach - The Ashdown ruling .......................................... 15
a) Pre- Ashdown rulings.......................................................................................... 17
b) Post-Ashdown rulings ......................................................................................... 20
Conclusion .................................................................................................................. 21
Bibliography ............................................................................................................... 23
2
Abstract
Recent attempts to expand the scope of copyright in order to serve the economic
interests of multinational conglomerates are directly affecting the civil liberty of free
speech as they control the bulk of cultural output. It is gradually becoming a form of
censorship which is overwhelming our society. The courts have found themselves in
the uncomfortable position of balancing these two rights. The question to be discussed
asks to what extent is copyright restraining freedom of expression. This dissertation
delves into the precarious balance in the context of continental Europe and the United
Kingdom.
It can currently be concluded that the courts are reluctant in imposing restraints on
copyright yet consciously directly affecting the scope of free speech. In particular this
dissertation seeks to understand the national application of copyright and evaluate
through case law how infringement claims are used in order to suppress freedom of
speech in the area of media and the press. Finally the extent to which the courts
decisions are affected by recent expansions of copyright law will be scrutinized to
elucidate the fact that economic interests prevail.
3
Introduction
The introduction of new Intellectual Property laws has repercussions on our
culture and everyday lives. It has become more evident that the privatization of
everything has brought on a conflict between economic interests and the libertarian
values. Current endeavours to expand the scope of copyright1 argue that the
expansion was intended to serve the interests of the author and essentially to promote
creativity. The inherent fallacy in characterizing copyright as a right which rewards
and promotes creativity is evident. It has been demonstrated by the same global
initiatives to expand its scope, which are in fact primarily serving economic interests.
This trend to commercialize intellectual property which is largely motivated by
colossal corporate power is gradually overshadowing a fundamental civil liberty, free
speech. The economic interests that have empowered copyright through the last
decades are directly affecting the attitude of the judiciary which is found in the
uncomfortable position of drawing the balance between the conflicting rights. The
expansion of copyright’s scope, has granted the owner exclusive power which is
sometimes being used in contrast to the purpose of its creation. “In particular,
copyright can empower a private party to censor criticism or ridicule, to which his
works might otherwise be subject, or to limit how copies of his works are used 2.”
Therefore it empowers a private person, or corporation, to impose restrictions on
liberty and particularly on the right to free speech, or the right to be informed.
1
The definition of copyright advanced by the U.K. patent office reads as Copyright is an unregistered
(Unlike patents, registered designs or trade marks) right defined as the exclusive right of a creator to
reproduce, prepare derivative works1, distribute, perform, display, sell, lend or rent their creations.
2
Griffiths Jonathan and Suthersanen Uma, Copyright and Free Speech, Oxford University Press, First
Edition, 2005, p.68
4
The demise of copyright’s deontological nature
General intellectual property law may be traced back to the merchant statutes
of Venice however the modern Anglo-Saxon copyright emerged in 16th century
Britain upon the arrival of the printing press3. Limited copyright was developed in
order to diminish monopoly over the vehicles of public speech and expression4.
Ironically though, the quintessential deontological5 nature of continental copyright has
been abused by economic interests and enhanced with a rather commercialistic
consequentialist6 dimension. The practicalities of globalisation have overshadowed its
intrinsic nature, ultimately resulting in a harmonization of copyright laws in Europe
and across the world.7 This is conspicuously demonstrated through the recent
initiatives to expand its scope as well as its duration. A relevant example is the TRIPs8
Agreement where there is no single reference to the concept of moral rights, probably
the unique deontological element of copyright law. The United States acting on behalf
of American Trade associations in the copyright-related industries, influenced9 the
conclusions of the agreement as shown by the respected academic M Blakeney10.
“One of the consequences of this immense commodification of creativity
through copyright law is the centralization of cultural output on private power 11.”
Copyright ownership in the media and entertainment sector has been concentrated in
the hands of a small number of communication companies which produce and
distribute the bulk of cultural and informational output. The much quoted author
Bettig12 argues that this process can be identified in the activities of approximately six
3
Shyamkrishna Balganesh, Copyright and free expression: Analyzing the convergence of conflicting
normative frameworks, Chicago-Kent Journal of Intellectual Property, 2004, p 52
4
Shyamkrishna Balganesh, Copyright and free expression: Analyzing the convergence of conflicting
normative frameworks, Chicago-Kent Journal of Intellectual Property, 2004, p 81
5
free expression/liberty
6
Property right
7
Shyamkrishna Balganesh, Copyright and free expression: Analyzing the convergence of conflicting
normative frameworks, Chicago-Kent Journal of Intellectual Property, 2004, p 81
8
World Trade Organization Agreement on Trade-Related aspects of Intellectual Property rights (1994)
9
His arguments centre on the fact that the USA convinced the GATT Council that intellectual property
rights were relevant to GATT interests. Secondly the USA submitted evidence demonstrating the
economic loss suffered by American associations due to the international non-enforcement of
intellectual property rights.
10
M Blakeney, Trade Related Aspects of Intellectual Property Rights, Sweet & Maxwell, London,
1996, ch1
11
Griffiths Jonathan and Suthersanen Uma, Copyright and Free Speech, Oxford University Press, First
Edition, 2005, p.44
12
R Bettig, Copyrighting Culture: The Political Economy of Intellectual Property (Boulder CO:
Westview, 1996) p 37
5
large corporations13. The activities of which embrace a diversified course of business,
including film making, television production, international ownership of cinema
chains, cable networks, music and book publishing14. The creation of a dangerous
global oligopoly in this sector of society –which is immediately related to free speech,
is particularly evident from corporate integration within national markets15. “Even
though the then big six corporations control seventy per cent of the global market for
music, they only release around twenty per cent of this music in Australia16.”
Copyright is one of the essential tools for the orchestration of this type of oligopoly
since it grants the owner a long period of control over the distribution of the content17.
Copyright law protects, in the form of exclusivity, any original expression of
an idea18. The idea itself is not protected19. However when the vast majority of
expressions is owned and produced by such a minority of corporate bodies, the space
remaining for independent expressions is gradually being eliminated. How is it
possible to promote free speech and political discourse when the global marketplace
is dominated and monitored by such a small number of companies? They not only
own the bulk of cultural output but hold the lobby towards the international trend to
expand intellectual property law. It becomes evident that due to the powers conferred
to these corporations, the government in question is more likely to serve their
intellectual property interests. This eventually connotes the demise of copyright’s
deontological nature. The high degree of vertical integration in the entertainment and
media20 sector means that ownership and eventually copyright is currently used as a
form of indirect censorship, and control over free speech. Another example involves
copyright infringement claims used directly in order to restrain a publication or a
broadcast. However both forms overlap in the sense that copyright ownership held by
a minority empowers them to suppress speech. This dissertation explores the
aforesaid direct use of copyright.
13
R Bettig argues that the bulk of copyright ownership has been centralized in the hands of six colossal
multinational entertainment corporations such as Viacom Inc (which owns Paramount Communications
Inc), Time Warner Inc, News Corporation Ltd, The Disney Corporation, and Comcast inc
14
Griffiths Jonathan and Suthersanen Uma, Copyright and Free Speech, Oxford University Press, First
Edition, 2005, p. 45
15
A Capling, “Gimme shelter!” Arena Magazine, February March 1996, 21
16
Griffiths Jonathan and Suthersanen Uma, Copyright and Free Speech, Oxford University Press, First
Edition, 2005, p. 53
17
R Bettig, Copyrighting Culture: The Political Economy of Intellectual Property (Boulder
CO:Westview, 1996) p 39-42
18
Melville B Nimmer & David Nimmer, Nimmer on Copyright § 2.01 (2000).
19
In copyright law this is particularly know as the idea/expression dichotomy.
6
The conflict in continental Europe
Concern has been expressed from a number of scholars, commentators and the
adjudicative bodies in the European continent in regards to the diminishing public
domain and the continuous proliferation of intellectual property rights21. It is
suggested through recent case law that this rising tide of copyright and related rights
may only be restrained in the light of specific provisions of Article 1022 of the
ECHR23. Although the conflict between the two rights is undeniable, the European
Court of Human Rights (ECtHR) has not had to decide its first “fair dealing” case
until very recently. This late development of European interest in copyright is a result
of various contingents. It is argued that one of the paramount factors is the European
natural law/deontological dimension which is antithetical to the United States
utilitarian24, dimension.
The constitutional basis of copyright law in Europe is primarily regulated on a
country by country basis. European Member States have preserved an autonomous
policy in this field however they must comply with a number of harmonization
directives adopted since 1991. The ECHR does not expressly recognize copyright or
any intellectual property right as a human right. The sole express reference to
copyright is provided through the Swedish constitution25 in Article 1926. On the other
hand, the right to enjoy freedom of expression and information is embodied in a
considerable number of international treaties as well as through Article 10 of the
ECHR. The right may be invoked by member states party to the convention, before
the courts, but subject to review by the European Court. Article 10, as most of the
ECHR Articles is intended to be interpreted broadly. This has led to controversy
concerning the extent to which the Article protects commercial speech. Indeed the
ECtHR has clarified that information of commercial nature is protected though in a
21
Bernt P. Hugenholtz, Copyright and Freedom of expression in Europe, [to appear in: Rochelle
Cooper Dreyfuss, Harry First and Diane Leenheer Zimmerman (eds.), Innovation Policy in an
Information Age, Oxford: Oxford University Press 2000] p 1
22
Article 10 of the European Convention on Human Rights promulgated the right to freedom of
expression in S10 s1 as well as its limitations in S10 s 2.
23
European Convention on Human Rights (ECHR), signed in Rome on 4 November 1950.
24
As directly reflected through the United States Constitution U.S. Const. Art I, § 8, cl. 8. (“to promote
science and the useful arts…”)
25
Regeringsform provides that “[a]uthors, artists and photographers shall own the rights to their works
in accordance with provisions laid down in law.” However it does not extend its scope to the protection
of producer’s rights, phonogram producers or broadcasters.
26
It is arguable that a fundamental ground for copyright may be assumed through Article 1 (property
clause) of the ECHR and from Article 8 (privacy clause)
7
lesser degree than political speech27. The Article’s scope embraces a wide range of
subjective rights, including those protected under copyright28. Specifically according
to Article 10 (2) ECHR, the exercise of free speech “may be subject to such
formalities, conditions, restrictions, or penalties as are prescribed by law and are
necessary in a democratic society [...] for the protection of the [...] rights of others”.
Certainly restrictions to freedom of speech are necessary in a democratic society.
However, some scholars29 argue that the existence of this constraint is justified as a
vehicle used by the European court in order to limit the scope of the Article, and
enhance it with the unspecified right to recall it, in order to override freedom of
speech (for example in copyright cases)30. The European Court decrees that when
there is a pressing social need which qualifies as a legitimate restriction it may
consider the reasons presented by the national court as “relevant and sufficient”31. De
facto it seems that the courts are enriched with wide latitude to monitor the power of
copyright over free speech, depending largely on the interests at stake to national
governments. The vast concentration of cultural output on private hands in
combination to the growing influence of corporations and the private sector indicate a
new era of intellectual property. The question is, to what extent will Europe conform
to the corporate interests and the new standards set out by the USA? (Primarily
through obliging the entire WTO membership to invoke new legislation introduced
through the TRIPs agreement.)
The arguments supporting the “laissez-faire” expansion of the scope of
copyright are well known32. The most significant argument which originates from the
proponents of this view suggests that the conflict has been “internalized” and solved
within the copyright framework. In other words they argue that the copyright system
has mechanisms of self regulation such as the idea/expression dichotomy, the limits to
27
Bernt P. Hugenholtz, Copyright and Freedom of expression in Europe, [to appear in: Rochelle
Cooper Dreyfuss, Harry First and Diane Leenheer Zimmerman (eds.), Innovation Policy in an
Information Age, Oxford: Oxford University Press 2000] p. 5
28
Chappell, ECHR 24 February 1989, Publications of the ECHR, Series A 152A (‘Anton Piller’ order
not considered infringement of privacy right protected under Article 8 ECHR).
29
Bernt P. Hugenholtz, Copyright and Freedom of expression in Europe, [to appear in: Rochelle
Cooper Dreyfuss, Harry First and Diane Leenheer Zimmerman (eds.), Innovation Policy in an
Information Age, Oxford: Oxford University Press 2000] p. 5
30
See Groppera case, (ECHR 28 March 1990) where the European Court upheld a restriction of the
retransmission of foreign radio broadcasts –imposed by the Swiss government- on the basis of the
“rights of others clause”.
31
Handyside, ECHR 7 December 1976, Publications of the ECHR, Series A 24; Sunday Times, ECHR
26 April 1979, Publications of the ECHR, Series A 30.
32
The most popular claims are a)Copyright does not limit the use of information b) it does not
monopolize ideas c)it promotes free speech in consistency to the free speech right
8
economic rights, or the limitations imposed on the term 33 of protection. This debate
has not traditionally inspired the European commentators; however in recent years
European literature on the issue has been experiencing an elaborate discussion,
particularly with the proposal for the introduction of a European Copyright
Directive34. The major concern expressed by legal commentators regarding the
Directive a propos the exhaustive list of copyright exemptions created in order to
harmonize copyright limitations in the Union. It is plausible that the specifications set
out in the directive will negate the flexibility of national courts to accommodate
defenses such as the public interest35. Most European countries allow copying for
personal use, study, news reporting, quotations, criticism, for museum or library uses,
or scientific use in the context of “fair dealing”. The proposed Directive which would
allow their existence in the form of a statutory license would negate national court
discretion and therefore indirectly assist in the expansion of copyright’s scope.
The constitutional grounds, on which copyright law is regulated in the
European continent as well as the philosophical background concerning the
intellectual property right, have been examined in the previous paragraphs. The
following section will examine how European courts draw the balance between the
two rights by exploring case law. Existing case law indicates that courts may rarely
restrain copyright only when issues of freedom of the press or the public interest are
at stake.
33
Ironically the duration term (another significant intellectual property issue) is experiencing
considerable change in most western countries through new intellectual property law (i.e.Sony Bono
Convention) and has been gradually expanding. Consequently we may consider that this is
undermining the argument.
34
Commission of the European Communities, Amended Proposal for a European Parliament and
Council Directive on the harmonization of certain aspects of copyright and related rights in the
Information Society, Brussels, 21 May 1999, COM (1999) 250 final.
35
Bernt P. Hugenholtz, Copyright and Freedom of expression in Europe, [to appear in: Rochelle
Cooper Dreyfuss, Harry First and Diane Leenheer Zimmerman (eds.), Innovation Policy in an
Information Age, Oxford: Oxford University Press 2000] p.7
9
Germany
Similarly to most European jurisdictions, the German courts have recognized
the existence of free speech limitations in a number of cases. In 1968 the Berlin Court
of Appeal decided in favor of the republication –without permission- of a cartoon by a
Berlin periodical. The court justified the copying on the grounds that it consist a
critical analysis of the Springer press, and thus did not infringe the cartoonist’s rights.
Regardless of the decision taken by the courts this is a classic example of how an
author has used copyright infringement in order to prevent a publication and
eventually the circulation of an idea, or in this case a critique. In the landmark case of
Terroristenbild 36the German Federal Supreme Court allowed the broadcast of four
copyrighted photographs by the public television on the grounds of political speech.
The photographs concerned members of the terrorist group RAF and were previously
published in Der Spiegel.
Furthermore in 1983 the District Munich Court allowed the broadcast of a
photograph from a pharmaceutical brochure in a critique of advertising aimed at
adolescents. Although no political speech was involved in this case the court found
that a defense could be provided in the light of Article 537 of the Federal Constitution.
The German Supreme Court’s38 decision in Lili Marleen39 is indicative of its
reluctance to impose free speech limitations on copyright. The Court did not
recognize Article 5 as a defense since freedom of the press was incorporated into the
German Copyright Act. However a similar outcome was reached in the CBinfobank40 cases which followed in 1997. The Court clarified the circumstances under
which limits to copyright maybe taken into account in an attempt to provide some
future consideration and avoid a complete devastation of Article 5. To draw a
conclusion from these cases it can be said that generally the German courts are willing
to imposing limitations on copyright only in the context of political speech.
36
. Terroristenbild, Landgericht Berlin 26 May 1977, [1978] GRUR 108.
Article 5 of the Federal Constitution of the German Democratic Republic is relevant to freedom of
expression rights
38
Bundesgerichtshof
39
Lili Marleen, German Federal Supreme Court 7 March 1985, [1987] GRUR 34
40
CB-Infobank I, German Federal Supreme Court 16 January 1997, [1997] GRUR 459 at 463; and CBInfobank II, German Federal Supreme Court 16 January 1997, [1997] GRUR 464, at 466.
37
10
The Netherlands
The Dutch decisions so far indicate a parallel application of supranational
copyright as the Germans. Article 10 of the ECHR has a direct application and
supersedes statutory law in the Dutch country. Hitherto the courts have been hesitant
to apply the Article in copyright cases. In Boogschutter41the court found in favor of
the plaintiff who claimed damages for copyright infringement for the publication -in a
daily newspaper- of a photograph involving a work of art. The defendant claimed
protection under Article 10 of the Convention but instead priority was given to the
intellectual property right42. In a more recent case the Amsterdam Court of Appeal
decided that Article 10 did not override the copyright claims of the Anne Frank
Foundation over the unauthorized publication of the “missing pages” of Anne Frank’s
diary by the newspaper “Het Parool”
43
. It is apparent that the courts are hesitant in
imposing limitations on copyright legislation, undermining the intrinsic value of
Article 10. This is particularly evident in the case involving Anne Frank’s diary where
disclosure in the name of public interest was also rejected by the judiciary.
Finally the decision in Church of Scientology v Dataweb44 is the first
demonstration by the Court of Appeal of a “fair dealing” test. The court denied
copyright infringement claims on the ground that copyright was not used in order to
obtain compensation but rather to restrain further access to a copyrighted material.
This is a landmark decision against one of the most litigious organizations45. The
importance lies on the reasoning of the court, since they clarified that they will not
accept the use of copyright claims aimed directly at the suppression of speech. The
sequitur of this interpretation is that the court attributed a more public oriented
function to copyright law by recognizing that excessive copyright protection could
have tumultuous consequences for information and political discourse. But to what
extent is this a quixotic isolated attempt of the court? The jury is still out.
41
Boogschutter, District Court of Amsterdam 19 January 1994, [1994] Informatierecht/AMI 51; see
comment P.B. Hugenholtz, [1994] NJCM Bulletin 673.
42
Dutch law does not recognise a fair use defence so any defences rely on Article 10 of the ECHR
43
Anne Frank Fonds v. Het Parool, Court of Appeal Amsterdam 8 July 1999, [1999]
Informatierecht/AMI 116.
44
Ct of App (Gerechtshof) “s-Gravenhage, 4 September 2003, Computerrecht, 2003/6, 357; Auteurs &
Media, 2004/1, 44
45
The Church of Scientology, http://en.wikipedia.org/wiki/Scientology
11
France
French courts’ decisions indicate an extreme reluctance in accepting free
speech defenses in copyright cases. The decisions in SPADEM v. Antenne46
concerning the scope of the freedom to briefly broadcast protected works is
demonstrative of how strong advocates of authors’ rights (droit d’ auteur)47 the French
have been. The direct application of Article 10 ECHR was only allowed very recently
in the case of Utrillo48 where copyright infringement claims were brought against the
national broadcasting company, France 2 for showing twelve copyrighted paintings in
a two minute news item about the Utrillo exhibition. The court of First Instance
initially ruled that the right of the public to be informed of cultural events outweighs
the interests of the copyright holder49. However the French Court of Appeal50
reversed the decision of the court of First Instance and rejected that there was any
violation of Article 10. The decision which was upheld by the Supreme Court51
reveals the common practice of each European counterpart to override intrinsic free
speech principles but at the same time recognize conditions which could reverse the
decision. It could be argued that this is due to the immediate need to encourage some
discourse on the matter.
Finally the ECtHR held that a journalist had freedom under Article 10 to
publish the tax documents in order to validate a story about the head of Peugeot‘s
salary. The French courts decision in Fressoz and Roire v France52 was reversed by
the ECtHR since it was considered to be incompatible with the Convention. However
it is evident that national courts in France have adopted a strong position favouring
the intellectual property right.
46
Du côté de chez Fred, Court of First Instance Paris 15 May 1991, 150 RIDA 164, reversed Court of
Appeal Paris 7 July 1992, 154 RIDA 161, affirmed Supreme Court (Cour de Cassation) 4 July 1995,
167 RIDA 263. The case eventually came before the European Commission, whose decision is
discussed below.
47
The pure natural aspect (droit d auteur) copyright is a sacred right which reflects the bond between
the creator and his creation.
48
Court of First Instance Paris 23 February 1999, Case 98/7053 (unpublished).
49
Griffiths Jonathan and Suthersanen Uma, Copyright and Free Speech, Oxford University Press, First
Edition, 2005, p. 306
50
Cour d’ Appel, 30 May 2001, [2001] Dalloz 2504
51
Cour de Cassation, 13 November 2003, JCP, 19 May 2004, no 21-22, 955
52
Fressoz and Roire v France (2001) 31 EHRR 28
12
The European institutions
The European Court of Justice has never been called up to decide upon the
conflict of the copyright and freedom of expression. On the other hand the European
Commission has faced the problem on two occasions. The first case concerned the
Dutch public broadcaster’s monopoly in radio and television program listings 53. The
plaintiff complained that copyright in program listings infringed Article 10 ECHR.
The Commission ruled in favor of the defendants on the ground that it did not restrict
freedom of expression and information under s.10(2) since information to the public
was not at stake54.
However the ruling received substantive criticism55, it is a landmark decision
of a European institution on the convergence of copyright and freedom of speech. The
case that followed concerned an infringement claim over a television broadcast covering the reopening of a theatre- on which the camera focused for less than one
minute on the theatre’s fresco’s created by Edouard Vouillard56. The Cour de
Cassation57 had formerly ruled in favor of the plaintiff who was seeking
compensation for the infringement on the ground that the statutory right to quote
briefly for informational purposes could not provide a defense in this case since the
specific broadcast did not fall within the meaning of the law58. The case reached the
European Commission of Human Rights, since France 2 complained that the decision
was conflicting to Article 10 ECHR. The Commission, however, upheld the decision
of the court on the ground that copyright was created for the protection of the “rights
of others”. Although the Commission issued a reduction in damages awarded to
SPADEM, in principle copyright law overridden the fundamental human right.
53
De Geïllustreerde Pers N.V. v. The Netherlands, European Commission of Human Rights 6 July
1976, European Commission of Human Rights Decisions & Reports 1976 (Volume 8), 5; cf.
KPN/Kapitol, President District Court Dordrecht 8 September 1998, [1999]
54
“The Commission considers that the freedom under Art. 10 to impart information of the kind
described above is only granted to the person or body who produces, provides or organises it…the
freedom to impart such information is limited to information produced, provided or organised by the
person claiming that freedom being the author, the originator or otherwise the intellectual owner of the
information concerned. It follows that any right which the applicant company itself may have under
Art. 10 of the Convention has not been interfered with where it is prevented from publishing
information not yet in its possession.”
55
Bernt P. Hugenholtz, Copyright and Freedom of expression in Europe, [to appear in: Rochelle
Cooper Dreyfuss, Harry First and Diane Leenheer Zimmerman (eds.), Innovation Policy in an
Information Age, Oxford: Oxford University Press 2000] p. 12-13
56
France 2 v. France, European Commission of Human Rights 15 January 1997, Case 30262/96,
[1999] Informatierecht/AMI 115.
57
The highest court in the French judiciary
58
In previously referred SPADEM v. Antenne
13
European case law suggests that copyright interests will usually prevail to free
speech rights. Although the development of this conflicting relationship is still in
progress a general reluctance of the courts in imposing limitations on the intellectual
property right may be observed. It is evident that they would rather allow a different
interpretation of Article 10 than limit copyright’s scope. There are some exceptional
circumstances under which the courts might consider that free speech is indispensable
which are usually correlated to public speech59. Although the recent decision in
Church of Scientology v Dataweb
60
allows some grounds for optimism, it is not
sufficient in order to argue for a general change in the courts’ attitude. Unfortunately
relevant case law indicates that economic interests will prevail at that point. The
expansion of the scope of copyright through recent legislation; which primarily serves
the economic interests of conglomerates indicates that European Member States will
adapt to the new standards and consider an alternative interpretation of Article 10
when this conflicts to copyright.
59
Bernt P. Hugenholtz, Copyright and Freedom of expression in Europe, [to appear in: Rochelle
Cooper Dreyfuss, Harry First and Diane Leenheer Zimmerman (eds.), Innovation Policy in an
Information Age, Oxford: Oxford University Press 2000] p. 14 “Arguments are likely to succeed
against copyright claims aimed at preventing political discourse, curtailing journalistic or artistic
freedoms, suppressing publication of government-produced information or impeding other forms of
public speech”
60
Ct of App (Gerechtshof) ‘s-Gravenhage, 4 September 2003, Computerrecht, 2003/6, 357; Auteurs &
Media, 2004/1, 44,
14
The United Kingdom approach- The Ashdown ruling
This section of this dissertation examines where the balance is drawn between
the right to speak and the private right to protect one’s speech in the United Kingdom.
The absence of a written constitution and a bill of rights resulted in the development
and protection of liberties through judicial process. Accordingly it is necessary to
examine how copyright restrained free speech through case law. The implementation
of Article 10 ECHR -which was issued through the Human Rights Act (HRA) in
199861- specifically mandates that courts must interpret domestic legislation in
accordance to the rights enshrined in the ECHR. Further, they have to make a
declaration of incompatibility in the event of a conflict. Copyright law in the UK is
governed by the Copyright, Designs and Patents Act (CDPA) of 199862. Chapter III
of the CDPA provides that all the relevant acts permitted in terms of “fair dealing”.
Furthermore according to s.171(3) of the CDPA, the courts may prevent or restrict
copyright enforcement on the grounds of public interest. For this reason it is
imperative to elucidate how the courts treat the right to free expression in the light of
these provisions.
One of the latest landmark cases on this issue is Ashdown v Telegraph Group
Ltd63. Paddy Ashdown, former leader of the liberal party, claimed infringement of his
copyright concerning the publication of a confidential political meeting which was
found in the plaintiff’s diaries. The report was leaked to the defendants who used a
substantial amount of the report in their news stories. He applied for a final injunction
and appropriate financial relief. It is apparent that Right Honorable Paddy Ashdown
did not intend to restrain publication for purely economic reasons but rather in order
to suppress the publication and minimize political damage on his behalf. At trial The
Sunday Telegraph claimed defenses of “fair dealing64” for the purposes of criticism
and review as well as a separate public interest defense.
A defense in the light of Article 10 was unsuccessful since the lower court
refused an interpretation of the Article which would render copyright protection a
violation of the right to free speech, and the matter was appealed. In fact, the Court of
Appeal considered that Article 10 was only ever likely to override the rights of the
61
U.K. Human Rights Act 1998 (c. 42).
The CDPA s.16(2) provides that, copyright in a work is infringed by a person who without the
licence of the copyright owner does, or authorises another to do, any of the acts 62 restricted by the
copyright.
63
[2001] EWCA (Civ) 1142; [2002] 149, CA para 30
64
The “fair dealing” defence was put under statutory form in 1911, now see CDPA 1988, SS 29,30 and
applies in three cases: a) research or private study, b) criticism or review, c) reporting current events
62
15
copyright owner in situations where an undeniable public interest defense was
established. On the appeal the court accepted that circumstances could arise in which
free speech rights would be undermined to the benefit of copyright interests65.
Similarly to the European cases previously examined, although the court
recognizes the conflicting balance, it is reluctant to impose limitations on copyright. It
ruled in favor of the plaintiff on the grounds that excessive reproduction was involved
in the publication that was unnecessary for the interests of the public. In addition the
publication was not “fair” in the sense that it had affected the commercial value of the
memorandum which was previously unpublished. The court suggested that the
reproduction of the copyrighted material was for commercial use rather than
authenticity purposes and therefore fell outside of the libertarian scope of free speech.
This therefore gave priority to the infringement claim. From a purely methodological
perspective, the court refused to accept the public interest defense in an attempt to
maintain as wide application of the doctrine as possible66. On the other hand, it could
be argued that the judiciary would eventually reach the desirable outcome through
discretion by any means -in the context of law. Although compensation was granted
to Mr. Ashdown the case creates some optimism in the sense that the court recognized
the conflict. However this phenomenon of reluctance by the judiciary to impose
limitations on copyright is becoming a common practice. The following section will
explore chronologically the attitude of the courts in Pre-Ashdown decisions.
As the Court of Appeal observed: “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 the copyright.”
66
Shyamkrishna Balganesh, Copyright and free expression: Analyzing the convergence of conflicting
normative frameworks, Chicago-Kent Journal of Intellectual Property, 2004, p 86
65
16
Pre- Ashdown rulings
The scrutinization of continental European copyright case law that was used
above, in order to demonstrate the expansion of scope, will now be mirrored in an
analysis of the pre-Ashdown decisions. In Fraser v Evans67 the Sunday Times had
obtained a confidential report prepared for the Greek government by the claimant.
The latter alleged an infringement of his copyright in order to restrain publication.
This is one of a few cases where the court decided not to grant an injunction since the
article was unpublished and its content was unknown to the judges at the time of the
ruling. The newspaper was arguing that the publication would fall within the
protection of “fair dealing” for the purposes of reporting current events and therefore
should not be restrained. The court was found in a very uncomfortable position since
it had received no evidence of the report and could not pre-judge the matter. Thus
copyright infringement claims failed and the publication was made at the risk of the
newspaper. The issue of public interest defense was not expressly dealt with but the
point certainly affected the decision of the judiciary.
A clarified position of the court concerning the public interest defense was
provided a few years later through Hubbard v Vosper68 one of the landmark decisions
within the UK jurisdiction. The case concerned the unauthorized publication of
published and unpublished works of the founder of the Church of Scientology Mr.
Ron Hubbard. The claimants applied for an interim injunction alleging a copyright
infringement claim as well as a breach of confidence claim. On the other hand Mr.
Vosper relied on the “fair dealing” defense for criticism in relation to the infringement
claim and public interest defense in respect of the breach of confidence claim. Lord
Denning clarified that the law “would not intervene to suppress freedom of speech
except when it is abused69.” In this typical example of copyright being used in order
to restrain publication the courts were not willing to grant an injunction. However
with the amendment to s 30 (1), the defense of fair dealing will not be available now
at trial concerning the unpublished material. Consequently an interesting question
emerges today in regards to the court’s decision. It could be suggested that in the light
67
[1969] 1 QB 349
[1972] 2 QB 84
69
[1972] 2 QB 84, 96-97, In particular he added that “in a copyright action, we ought not to restrain a
defendant who has a reasonable defense of “fair dealing”. Nor in an action for breach of confidence, if
the defendant has reasonable defense of public interest. The reason is because the defendant, if he is
right, is entitled to publish it
68
17
of the recent decision in Ashdown the court would be rather hesitant to allow the
publication.
The ruling in Lions v Evans70 demonstrates very clearly the points made by the
judges in the previous cases. Lion Laboratories was the manufacturer of breathalyzer
kits, the results of which were used as evidence in drink driving trials. The first two
defendants who worked for the manufacturer had supplied the third defendant, the
Daily Telegraph with confidential evidence which doubted the accuracy of the
breathalyzers and consequently the validity of the convictions. The claimant applied
for an interim injunction which was refused by the court on the ground that there was
considerable evidence in order to provide the defense of public interest. Furthermore,
the courts decided not to restrain publication although the information was
confidential and was unlawfully obtained in breach of confidence. Interestingly, a
defense for “fair dealing” was not pursued although it seems that it would have
succeeded for the purposes of criticism and review, since the judges considered that
publication of the actual documents was required in order to give the story the
necessary journalistic impact.
It is evident form the cases investigated so far, that the courts are willing to
protect free speech where matters of public interest are at stake. The “fair dealing”
defense is sometimes successful, though it is more vulnerable in being overridden by
copyright71. However, recent case law suggests a redefinition in the position of the
courts.
Hyde Park Residence Ltd v Yelland72 is indicatory of the thin red line the
courts have drawn in the balance between free speech and copyright protection. The
case concerned the publication of a number of photographs of Princess Diana and Mr.
Dodi Fayed by the newspaper Sun. The newspaper relied on a “fair dealing” defense
for the purposes of reporting on current events but also claimed that it was in the
public interest to publish those photographs. The importance of this case does not lie
on the final decision but rather on the reasoning of the judiciary. First of all the judges
considered that it was not necessary to publish the copyrighted material in order to
make the point. In regards to the second defense: “The majority held that there was no
general defense of public interest to copyright infringement claims73.” Only one
70
[1985] QB 526, CA
See Ashdown v Telegraph Group Ltd, [2001] EWCA (Civ) 1142; [2002] 149, CA
72
[2001] Ch 143
73
Griffiths Jonathan and Suthersanen Uma, Copyright and Free Speech, Oxford University Press, First
Edition, 2005, p 204
71
18
member74 of the Court of Appeal recognized that such a defense existed in relation to
a copyright infringement claim, but concluded that it was not applicable on the facts
of the case.
A similar outcome was reached in the most recent case of Imutran Ltd v
Uncaged Campaigns Ltd75, a case concerning the unauthorized publication of
confidential copyrighted material relating to research activities for transplant of
human organs with those of animals. The judges held that the decision in Hyde Park
was binding although the HRA had come into force, and no defenses were available
to the copyright infringement claim.
It is apparent through the development of case law that the conflicting balance
between the two rights is certainly affected by the introduction of the CDPA of 1988.
The most important concerns on restraints of freedom of expression are contained in s
30 of the related Act. The relevant “fair dealing” provisions provide a wide scope of
interpretation especially as to what amounts to “criticism” or “reporting of current
events.” The indefinite nature of these provisions, relinquish a considerable space for
discretion. As previously mentioned, the decision in Ashdown creates some optimism,
particularly because of the discussion of the effect of the HRA on copyright law as
well as because the courts attributed that a general defense of public interest exists in
copyright infringement cases76.
74
Mance LJ
[2001] 2 All ER 385
76
Through the ruling in Ashdown, where it was held that such a defence exists, -as expressly preserved
through s 171(3) of the 1988 Act- the Court of Appeal negated the decision in Hyde Park Residence
Ltd v Yelland.
75
19
Post Ashdown rulings
The future approach of the courts to this conflict in the UK jurisdiction is hard
to predict. It seems that the next relevant case which has provided some evidence on
this issue was not far from the courts since Prince Charles sued Mail on Sunday in
November 2005. On March the eighteenth, The Daily Telegraph77 announced that a
summary judgment was given by Mr. Justice Blackburne78 which ruled in favor of the
claimant although no further information was made available. The matter concerned
the unauthorized publications of extracts from a journal the Prince wrote eight years
ago79. The newspaper denied any breach of copyright or confidentiality concerning
the documents which include some offensive comments for the Blair government as
well as for the Chinese Communist leadership. A possible appeal may turn around this
decision. However this preliminary ruling is indicative of the courts current position
on the matter. Copyright is being used as an effective way of restraining any hostile or
harmful publication. As soon as people become more aware of its power, it will be
widely used, as in the Prince Charles case, or even as an alternative to the expensive,
uncertain, and time-consuming defamation law pathway80.
In general, considering the development of the balance through the decision of
the courts, and particularly the Ashdown ruling, it may be concluded that the UK
courts have maintained some flexibility in regards to the interpretation of the CDPA
and HRA both of 1988, in order to compromise between the two rights. They are not
yet willing to relinquish free speech rights especially when these concern information
which is in the public interest, but on the other hand are hesitant to impose absolute
limitations on copyright. For example they will investigate whether the publication of
the documents in question is substantial for the demonstration of the point. However
recent attempts to expand the domain of copyright law in combination with the fact
that England has enthusiastically joined the USA in this new era of intellectual
property law have caused some concern about the future of the libertarian right.
77
Rozenberg Joshua, Prince wins privacy claim over journal, The Daily Telegraph, page 1, (18th of
March 2006)
78
“The claims of breach of confidence and the infringement of copyright relating to Hong Kong
journal had been made out.”
79
Stephen Bates, Charles sues Mail for printing his “waxworks jibe at Chinese leaders, The Guardian,
Saturday 19 November, 2005 [available from]:
http://www.guardian.co.uk/monarchy/story/0,,1645974,00.html (last visited: 24/02/2006)
80
Brian Martin, Defamation Havens, by First Monday, volume 5, number 3 (March 2000)
20
Conclusion
As investigated through this dissertation; copyright law’s growing power is
becoming a threat to free speech even in the European continent in which intellectual
property rights were enhanced with a rather deontological perspective. The decision
of the European Commission as well as the proposed Directive,81 are reaffirming the
expansion of copyright’s scope, in the new era of intellectual property law and the
influence of corporate power on governmental institutions82. Decisions in continental
European member states indicate a common reluctance of the courts to impede the
rights of copyright owners but at the same time caution that the conflict might prove
deleterious. Although the Anglo-Saxon perception of copyright is supposedly
different, the practicalities of globalization have led in a harmonization process which
automatically connotes a rather similar approach to the overriding interests of
copyright. This reciprocal attitude has evidently challenged the power of the press in
reporting and criticizing events, and might well escalate in a widely used form of
censorship by the copyright owners.
Initially the artificial property right was created in order to reward and
promote creativity. As demonstrated through this dissertation it is evident in a large
extent that copyright may function in contrast to one of its supposedly founding
principles. There are a number of occasions that its existence and growing power is
precluding the disclosure of information to the public, which eventually leads to the
impoverishment of an essential democratic feature: political discourse83. A significant
example is concentration of media ownership by the mogul Rupert Murdoch the
Chairman and managing director of News Corporation one of the most influential and
largest media corporations in the world. The concentration of ownership in the hands
of a few, or in other words, the recreation of the feudal state through intellectual
property, must become one of the central areas of discussion in the 21st century.
Governments are so willing to act in the interests of the corporate sector that decisions
are immediately related on the interests at stake to national governments.
The fact that market driven copyright law, and its continuing expansion
dictated by the forces of economic globalization, are shaping our future, shall not be
ignored. The consequential element of copyright has triumphed since its deontological
81
see, page 9
For a relevant discussion see Griffiths Jonathan and Suthersanen Uma, Copyright and Free Speech,
Oxford University Press, First Edition, 2005, p 44-96
83
See, E Barendt, Freedom of Speech (Oxford: OUP, 1987) 15: “Freedom of speech is primarily a
liberty against the state”
82
21
nature is being destroyed. Accordingly it would be quixotic and ignorant to engage in
an idealistic discussion concerning the future fate of the balance since it is evident so
far from international development that the western world will rather seek economic
integration. The dominant powers that pull the strings in international politics will
rather choose “the rich over the right.”
22
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25