Copyright is a property right which by definition comes into conflict with a fundamental human right: the right of freedom of expression. The Court of Appeal decided this week that on rare occasions freedom of expression will “trump” copyright, giving a public interest defence to a copyright infringement claim.
The Sunday Telegraph published extensive extracts from a confidential record which Mr (now Lord) Ashdown had made of an important meeting at 10 Downing Street in 1997. Ashdown sued the Telegraph Group for copyright infringement and breach of confidence. The High Court awarded Ashdown summary judgment, dismissing the Telegraph’s defences including defences based on freedom of expression and fair dealing. The Telegraph’s appeal failed, but the Court of Appeal’s findings on the conflict between copyright and freedom of expression establish an important principle. The Human Rights Act can, in effect if not in legal theory, override the Copyright Act.
The circumstances in which freedom of expression will prevail over copyright are rare. Copyright protects the expression of ideas, not the ideas themselves. The public interest which newspapers serve in disclosing information such as the matters referred to in Ashdown’s confidential record can normally be protected without the newspaper copying the exact words. Copyright will not be an issue in such cases.
Occasionally, however, it is necessary for a newspaper to publish documents verbatim, for example to ensure credibility. The form of the document, on such occasions, is of equal importance to the content. Even then, a newspaper may still have a fair dealing defence under the Copyright Act itself. But what if there is no fair dealing defence? Can it still be right for a newspaper to publish substantial verbatim extracts from a document?
In the Ashdown case the Court of Appeal decided that the Sunday Telegraph need only have published one or two short extracts to establish authenticity. The Sunday Telegraph had gone further than this: “the minute was deliberately filleted in order to extract colourful passages that were most likely to add flavour to the article.” This was furthering the Telegraph Group’s commercial interests in a manner which was “essentially journalistic”. But in cases where the publication of longer extracts is genuinely necessary in the public interest, newspapers will now be able to rely on their right of freedom of expression.
The court also considered the meaning of “reporting current events”, one of the fair dealing defences under the Copyright Act. It confirmed that a liberal interpretation should be put on the word “current”. A matter could be of current interest to the public even if it concerned events which had taken place some time ago. Current events do not always have to be recent events.