UK / COPYRIGHT / HUMAN RIGHTS

Copyright Law after Ashdown: Time to deal fairly with the Public

Jonathan Griffiths

Intellectual Property Quarterly, Issue 3, 2002

This article is a critique of the case, Ashdown v Telegraph Group Ltd, in which the English Court of Appeal was invited to consider the impact of the Human Rights Act 1998 on the scope of the defences available in proceedings for copyright infringement. The Human Rights Act, which came into force in October 2000, largely incorporated into national law the provisions of the European Convention on Human Rights and Fundamental Freedoms. In the case in question, Mr Ashdown, the former leader of the Liberal Democratic Party, claimed copyright in his minute of a secret meeting with the Prime Minister, concerning possible cooperation between the Liberal Democratic and Labour parties. A copy of the minute somehow fell into the hands of the Sunday Telegraph, which published stories about the meeting and extracts from the minute itself. Mr Ashdown sued for copyright infringement and breach of confidence. The Telegraph Group relied on the statutory principle of fair dealing, the common law defence of "public interest" and the right to freedom of expression (Article 10 of the European Convention). The High Court rejected the defences; and the Telegraph Group appealed. 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". 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". The author of the article strongly attacks the Court's decision. He recognizes the Court's acknowledgment that "considerations of public interest are paramount", but criticises the Court for applying the traditional rules on fairness in a formulaic and inflexible manner. In particular, while accepting that freedom of expression would not necessarily support excessive reproduction of a copyright work, he points out that the Court's reasons for finding that "too much" of the minute had been reproduced were never fully explained. Above all, the Court of Appeal considered fairness by focusing exclusively on the actions and interests of the parties to the proceedings and did not, accordingly, take account of the public interest in access to information provided for under Article 10 of the Convention. The author offers some suggestions for introducing new principles based on criticisms of the Ashdown case and emphasizes the importance of taking into account both the subject-matter of the owner's copyright material and the nature of the copyright owner's work. More generally, the author observes that "over the last few years, the rights of copyright owners have been dramatically enhanced … however, the legislature appears to have lost confidence in its ability to secure the public interest in access to information contained in copyright works". Part of the problem lies in the treatment of copyright as a property interest. Part lies in the Courts' attempts, as in the Ashdown case, to accommodate the human right of freedom of expression to the existing structure of copyright law with as little inconvenience as possible. "The important public interests protected by Article 10 cannot be secured unless courts are willing to brave a certain amount of disruption." [20076]