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 event2. 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 degree3.
1
S.30(1) CDPA: 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.
2
S.30(2) CDPA: 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 it is accompanied by a
sufficient acknowledgement.
3
Hubbard v Vosper [1972] 2 QB 84
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 information4.
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 Ltd5, 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
4
Article 10 ECHR:
(1) Everybody has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and regardless
of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television
or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
5
[2001] EMLR 44
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.
6
7
[2001] 2 All ER 370 at [14].
Lord Phillips MR at para [45]
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) CDPA8 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 Yelland9, 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
8
S.171(3) CDPA: Nothing in this part affects any rule of law preventing or restricting the enforcement
of copyright, on grounds of public interest or otherwise.
9
Hyde Park Residence v Yelland [2001] Ch 143, para [64]
10
See above, para [83]
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
11
12
[2001]2 All ER 370 at para [24].
[1972] 2 QB 84 at 94
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 Yelland14, only to restrict its approach to
the public interest by stating that it did not even require separate consideration.
With the court having held earlier in the judgement that compatibility with Art 10
requires a consideration of the facts of individual cases, it may have been expected
that the court’s analysis of fairness would involve a consideration of the particular
facts of the case in relation to freedom of expression. The Court also warned of the
dangers of applying inflexible tests to the assessment of fairness and stated that
‘considerations of public interest are paramount’15
However, Lord Phillips MR then appears to contradict himself by doing exactly what
he had warned against, namely applying inflexibly a test based on the ‘Laddie factors’
and failing to pay any real regard to considerations of public interest. The ‘Laddie
factors’ can be summarised into three principles which are taken into consideration
when assessing fairness. The first consideration is the extent to which the alleged fair
dealing is in commercial competition with the copyright work, secondly, whether or
not the work has previously been published and, thirdly, the amount and importance
of the work that has been taken16.
Assessing Fairness: Commercial Competition.
There are a number of criticisms that can be made of the court’s reasoning in relation
to each of these three factors. To begin with, the court found that the defendant’s
article was in commercial competition with the diaries that Ashdown was intending to
publish in the future. The Court of Appeal agreed with Morritt V-C, at first instance,
that there was evidence that ‘the publication in the Sunday Telegraph destroyed a part
13
Ashdown v Telegraph, at [66]
See above, note 10 and accompanying text.
15
Ashdown v Telegraph, at [71]
16
Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs, (3rd ed.), Para 20.16,
Butterworths, 2000.
14
of the value of the memoirs which it had been Mr Ashdown’s intention to sell’. The
court also stated that,
“We are in no doubt that the extensive quotations of Mr Ashdown’s own
words added a flavour to the description of the events covered which made the
article more attractive to read and will have been of significant commercial
value in enabling the Sunday Telegraph to maintain, if not enhance, the loyalty
of its readership”.17
These findings can both be criticised. Taking first the statement that the article
destroyed a part of the value of Ashdown’s memoirs, this finding is suggesting that
the use of several quotations from a 15 minute meeting in a newspaper article is in
commercial competition with memoirs of Ashdown’s political career, spanning over
many years. It is submitted that this surely cannot be the case. If anyone has such an
interest in Ashdown’s political career that they would want to buy his memoirs, they
are unlikely to change their mind because they have already read about this small
section of his career. However significant this meeting may have been, it amounts to a
minimal proportion of his career and, although the meeting and the contents of the
article are clearly of great public interest, it seems unfair to suggest that extracts of a
minute from a short meeting could possibly be in competition with memoirs spanning
over a long political career.
As for the use of the quotes making the article more attractive to read and being of
‘significant commercial value’, it is submitted that this consideration receives far
greater weight than is warranted on the facts. It should be remembered that the
essential nature of a newspaper is that it is a profit-making organisation and that the
newspaper has an important function of informing the public of events of legitimate
public concern. In deciding that the article was in competition with the memoirs, the
court does not consider the important public interest requirement of the need to give
effect to the right to freedom of expression.
It can be argued that even if the newspaper does gain a commercial advantage from
the use of quotes from the minute, this should not lead to an automatic finding that the
use of the quotes was unfair. It is clear from the wording of Article 10(1) ECHR18 that
freedom of expression provides a right to receive and impart information and ideas
without interference by public authority. In this situation it would seem that the public
interest in upholding the right to freedom of expression requires that the publication
of the article be allowed, particularly in view of the fact that the contents of the article
and the quotes in the minute are of real public concern. The fact that the defendants
made a commercial gain from publication should not be conclusive of a finding of
unfairness.
If the fact of a commercial gain were to be conclusive then the press would be greatly
restricted in the way that they could report events. For example, if a newspaper was
not allowed to gain a commercial advantage from their publication of articles
containing extracts protected by copyright, then this would effectively prevent the
press from using such extracts. Newspapers, by their nature are seeking to gain some
17
18
Ashdown v Telegraph, at [72]
See above, note 4.
form of commercial advantage from any articles they publish, because if they publish
articles of interest to their readership then they will clearly be attempting to enhance
the loyalty of their readers. This effective ban on the use of copyright works would
represent a great restriction on the freedom of expression in the sense that, in the
publication of articles such as this, it is necessary for the newspaper to include certain
quotations in order to provide the story with credibility and to show that the
newspaper is in a position to make an authoritative comment on the story. Without
quotations to back up the story of the meeting between Ashdown and the Prime
Minister, the article would lose much of its credibility and in such situations,
newspapers may feel that a story which lacks authority is not worth publishing. This
would represent a major blow to the freedom of the press.
A further criticism can be made from a human rights perspective of this aspect of the
judgement and its failure to pay sufficient regard to freedom of expression. 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. This can be
criticised on the basis that Article 10 ECHR requires more than this. Freedom of
expression includes a right of the public to receive information19 and, therefore,
before concluding that the commercial competition of the two works at issue led to a
finding of unfairness, the court should have considered this wider requirement of
Article 10 and weighed the public interest in the right to receive information against
the property rights of the copyright holder.
Assessing Fairness: Prior Publication.
This was another unsatisfactory aspect of the courts judgement, with the court simply
stating that the unpublished status of the minute favoured the claimant. However, in
one commentary on the case, it is suggested that where there is a public interest in the
subject matter of a copyright work, the public interest in the disclosure of that work is
likely to be greater where the work is unpublished20. The court also places an
emphasis on the fact that the minute was obtained in breach of confidence as a
significant factor in suggesting unfairness. However the court fails to consider that in
matters of legitimate public concern, the source of the information may be irrelevant
if the public interest requires publication of the information. This point is even
acknowledged within the ‘Laddie factors’ where it is said that ‘sometimes it is
necessary for the purposes of legitimate public controversy to make use of leaked
information’21. It is strange that the court should make such a rigid use of the ‘Laddie
factors’, but ignores this significant qualification contained therein on the impact of
prior publication on the fairness of the use of copyright work. This is an unfortunate
omission on the part of the court because Ashdown can easily be argued to be a case
where the public controversy involved makes it necessary to use leaked information.
19
Article 10(1) ECHR
Griffiths J, Copyright Law After Ashdown- Time to Deal Fairly with the Public, [2002] IPQ No.3
240, at 253
21
See above, note 16.
20
Consideration of this factor could have altered the court’s opinion on the fairness of
the defendant’s use of the minute.
Assessing Fairness: The Amount and Importance of the Work Taken.
In this regard, the court found that the extent of the use ‘weighed against the defence
of fair dealing’ on the grounds that ‘a substantial portion of the minute was copied’
and that ‘the most important passages in the minute were selected for publication’22.
However, in reaching this conclusion, the court gave no reason as to why this was
unfair in the circumstances. The court went on to ask,
“Can it be argued that the extensive reproduction of Mr Ashdown’s own
words was necessary in order to satisfy the reader that the account given of
this meeting with Mr Blair was authoritative? We do not believe that it can.
The statement by the Sunday Telegraph that they had obtained the minute
coupled with one or two short extracts from it would have sufficed”23
It is submitted that this passage is particularly controversial in terms of placing a
restriction on the freedom of expression. The court can be seen to have taken it upon
itself to dictate how the defendant newspaper should have approached its reporting of
the meeting and its use of the confidential minute. The court has no jurisdiction to do
so and, should it be otherwise, the freedom of the press would be greatly undermined.
Newspapers would effectively be governed by the courts in how they report events of
legitimate public concern. Support for this criticism can be found in the European
case of Fressoz v France24. In this case, the European Court of Human Rights held
that,
“Article 10 leaves it for journalists to decide whether or not it is necessary to
reproduce such documents to ensure credibility”
This suggests that the newspaper should be free to decide how to use the copyright
protected minute in its report of the meeting between Ashdown and the Prime
Minister, and throws doubt on the apparent opinion of the Court of Appeal that it can
dictate how the newspaper should have written the article in question.
Summary of the Court’s Assessment of Fairness
The consideration of these three factors led the court to find to find that the defence of
fair dealing was not made out in Ashdown. This is a highly disappointing outcome in
the sense that freedom of expression and the public interest surely requires publication
when a matter of such public importance is at stake. Indeed, far from applying the fair
dealing provisions in S.30 CDPA in a way that is compatible with the right to freedom
of expression, the court in Ashdown can be seen to apply two new pre-conditions
before the defence of fair dealing can exist.
22
Ashdown v Telegraph, at [76]
See above, at [81]
24
Fressoz & Roire v France (2001) 31 EHRR, at para 54.
23
These new conditions can be seen in paragraph [69] of the judgement where it is said
that,
“The fair dealing defence under S.30 should lie where the public interest in
learning of the very words written by the owner of the copyright is such that
publication should not be inhibited by the chilling factor of having to pay
damages or account for profits.”
Thus, it is suggested by the court that before a fair dealing defence can succeed there
must be a public interest in publication, and that any monetary award made against
the defendant would ‘chill’ his expression. These new pre-conditions impose a
considerable restriction on the scope of the fair dealing defences and appear to be
completely unwarranted by authority. In fact, it has been observed25 that the suggested
requirement that there must be a public interest in publication would not have been
satisfied by several previous cases where the defence of fair dealing has ultimately
succeeded. For example, in BBC v British Sky Broadcasting26, the defence of fair
dealing succeeded but it could hardly be said that the public interest demanded
publication on a news programme of short highlights from a football match.
This example undermines the court’s assertion that a public interest in publication
must exist before a fair dealing defence can succeed and raises the question of why
the court sought to impose further restrictions on the defence of fair dealing. It is
submitted that this is because of the view of the courts that private property values are
predominant to values of free speech. However, this prevailing opinion of the courts
surely requires reassessment now, in the light of the European Convention of Human
Rights and the Human Rights Act 1998.
Conclusions.
An analysis of the Court of Appeal’s decision in Ashdown v Telegraph Group27 leads
to the conclusion that the provisions of the CDPA, in terms of the fair dealing and
public interest defences, is not compatible with the right to freedom of expression in
Article 10 ECHR. This is a disappointing result, inasmuch as this was the first time
that the conflict between copyright and freedom of expression was argued fully before
an English court. It was a good opportunity for the Court of Appeal to apply an
interpretation of the fair dealing defences which was compatible with the right to
freedom of expression. Unfortunately, from the human rights point of view at least,
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. This result
was largely due to the court’s inflexible application of the ‘Laddie factors’ test. If the
court had adopted a more flexible approach and not attached such weight to its
findings based on the ‘Laddie factors’ test, it is possible that a more favourable result
could have been reached.
25
See above, note 20, at 255.
[1992] Ch. 141
27
See above, note 5.
26
However, it is submitted that this incompatibility between the fair dealing defence and
the right to freedom of expression is not down to any fault in the CDPA itself, but is
due to the overly restrictive approach taken by the courts to the application of the
defence. It is possible that a slightly different approach by the courts to the assessment
of fairness for the purposes of S.30 could bring the defence of fair dealing into line
with the Convention right to freedom of expression without any need for legislative
reform of copyright law.
Two additional considerations are identified by Griffiths28 which should be taken into
account in any assessment of fairness, and it is suggested that the application of these
two factors could secure compliance with the right to freedom of expression. Firstly,
he notes that the court failed to take account of the subject matter of the defendant’s
article. This would appear to be a matter of common sense. It seems that the most
relevant consideration in determining the fairness of an article would be the subject
matter of that article itself. In this case, the subject matter of the article is clearly of
real public importance and this should weigh in favour of the article’s fairness. The
article contains revelations of conduct of two senior political figures in the country
which is unarguably a matter of legitimate public interest. In view of this it seems
difficult to believe that the court failed to take this hugely relevant consideration into
account.
In relation to the subject matter of the defendant’s article Griffiths further suggests
that when publication raises issues of legitimate public concern the courts should
apply a strong presumption in favour of the defendant29. This would help to give
effect to the Article 10 right in the way that in cases such as Ashdown where there is a
legitimate public concern in publication, there would be a heavy burden of proof
placed upon the copyright owner to show that use of his work is unfair. In issues of
such public concern as the contents of the minute in Ashdown, it is submitted that this
burden of proof could only be discharged where there was overwhelming evidence
that the defendant’s use of the work was unfair, and that this unfairness outweighed
the public interest in publication.
The second factor which Griffiths identifies as a relevant consideration which the
Court of Appeal failed to address is the nature of the claimant’s work. He cites
Kenrick v Lawrence30 as authority for the proposition that ‘Greater protection is
granted to works invested with a higher degree of labour and skill and relatively
simple works receive a thinner form of protection’. The minute in Ashdown would be
a clear example of a work deserving only this ‘thinner’ form of protection. There was
no great labour or skill expended in its creation, it was simply a record of a meeting
which was later typed up by Mr. Ashdown’s secretary. In view of this, it could be
argued on the facts of this case that the claimant’s copyright claim over the minute is
likely to be outweighed by the strength of the defendant’s claim that publication was
fair. There is a legitimate public interest here in publication and the weakness of the
copyright claim of Mr. Ashdown cannot justify such an oppressive restriction on the
right to freedom of expression enjoyed by the newspaper. Therefore, it seems likely
28
See above, note 20, at 257-258.
See above, at 258
30
(1890) 25 QBD 99
29
that a consideration of the nature of the claimant’s work in this case would point
towards a finding of fairness.31
Ashdown v Telegraph could be taken as demonstrating that the fair dealing defences
are too restricted for the purpose of giving effect to the right of freedom of expression.
However, it is suggested that this is simply down to the prevailing emphasis of the
courts on protecting private property values over values of free speech. Unfortunately
the court chose to follow a rigid application of the ‘Laddie factors’ in assessing
fairness. It is submitted that this test, by itself, has been shown by Ashdown to be
completely unsuited to cases which involve serious issues of public interest and
freedom of expression. This is partly because these three factors consider only the
conduct of the two parties to the case, there is no account of wider considerations such
as the right of the public to receive information under Article 10(1) ECHR.
This is not to suggest that the ‘Laddie factors’ are irrelevant, it is simply argued that
the ‘Laddie test’ on its own is inadequate to protect the right of freedom of
expression, and should not be considered as conclusive in the assessment of fairness
for the purposes of S.30. If the additional factors proposed by Griffiths and considered
above are taken into account, then this could help relieve the tension between
copyright protection and freedom of expression. These factors consider, on the basis
of the individual case, whether the nature of the claimants work and the subject matter
of the defendant’s article lead towards a finding of fairness or otherwise. This allows
a consideration of public interest factors, and the suggested presumption in favour of
the defendant in cases involving legitimate public concern means that any restriction
on freedom of expression would require strong justification.
It is submitted that this approach to the assessment of fairness would result in a less
restrictive approach to allowing use of copyright works to report matters of legitimate
public concern. This would thereby bring the fair dealing provisions in S.30 of the
Copyright, Designs and Patents Act into line with the right to freedom of expression
under Article 10 of the European Convention on Human Rights.
31
It is interesting to note that the American defence of fair use expressly requires the court to consider
the nature of the copyrighted work under S.107 (2) of the Copyright Act 17 U.S.C.
Bibliography.
Books:
Cornish WR, Intellectual Property: Patents, Copyright, Trade Marks and Allied
Rights, 4th edition, 1999, Sweet & Maxwell
Christie A and Gare S, Statutes on Intellectual Property Law, 5th edition, 2001,
Blackstones.
Davis J, Intellectual Property Law, 2001, Butterworths.
Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs, (3rd ed.),
Para 20.16, Butterworths, 2000
Journals:
Burrell R, Reining in Copyright: Is Fair Use the Answer?, (2001) 4 Intellectual
Property Quarterly 361.
Griffiths J, Copyright Law After Ashdown- Time to Deal Fairly With the Public,
(2002) 3 Intellectual Property Quarterly 240.
Joseph L, Human Rights Versus Copyright: The Paddy Ashdown Case, (2002), 13(3)
Entertainment Law Review 72.
Cases:
Ashdown v Telegraph Group Ltd [2001] EMLR 44 (High Court)
Ashdown v Telegraph Ltd [2001] 2 All ER 370 (Court of Appeal)
British Broadcasting Corporation v British Sky Broadcasting [1992] Ch. 141
Fressoz & Roire v France (2001) 31 EHRR
Hubbard v Vosper [1972] 2 QB 84
Hyde Park Residence v Yelland [2001] Ch 143
Kenrick v Lawrence (1890) 25 QBD 99