The appellant complained that a part of his confidential diaries had been republished without his consent by the defendant newspaper group. The defendant appealed, saying that the publication was fair dealing.
Held: The exceptions within the Copyright Act were not sufficient to obviate entirely potential conflicts with the rights of freedom of expression under the Convention Art 10. The right to freedom of expression could be balanced, in a democratic society, with the private rights under the Act. The Convention right protected the freedom of expression of ideas, the Act protected particular forms of expression of those ideas. The circumstances in which the public interest might override copyright were not capable of exact categorisation or definition. The fair dealing provision was an instance of the right of freedom of expression displacing copyright protection.
The most important factors when deciding whether there had been fair use were: ‘(1) The degree to which the alleged infringing use competes with exploitation of the copyright work by the owner . . (2) Whether the work has been published or not . . (3) The extent of the use and the importance of what has been taken. In many cases this will be a highly important factor . .’
‘ . . . by far the most important factor is whether the alleged fair dealing is in fact commercially competing with the proprietor’s exploitation of the copyright work, a substitute for the probable purchase of authorised copies, and the like. If it is, the fair dealing defence will almost certainly fail. If it is not and there is a moderate taking and there are no special adverse factors, the defence is likely to succeed, especially if the defendant’s additional purpose is to right a wrong, to ventilate an honest grievance, to engage in political controversy, and so on. The second most important factor is whether the work has already been published or otherwise exposed to the public. If it has not, and especially if the material has been obtained by a breach of confidence or other mean or underhand dealing, the courts will be reluctant to say this is fair. However this is by no means conclusive, for sometimes it is necessary for the purposes of legitimate public controversy to make use of ‘leaked’ information. The third most important factor is the amount and importance of the work that has been taken. For, although it is permissible to take a substantial part of the work (if not, there could be no question of infringement in the first place), in some circumstances the taking of an excessive amount, or the taking of even a small amount if on a regular basis, would negative fair dealing.’
Judges:
Lord Phillips MR, Lord Justice Robert Walker, Lord Justice Keene
Citations:
Times 01-Aug-2001, (2001) 24(9) IPD 24058,, [2001] HRLR 57, [2001] EMLR 44, [2001] 4 All ER 666, [2001] UKHRR 1242, [2002] ECC 19, [2002] RPC 5, [2001] 3 WLR 1368, [2002] ECDR 32, Gazette 31-Aug-2001, [2001] EWCA Civ 1142, [2002] Ch 149, [2002] RPC 235
Links:
Statutes:
Copyright Designs and Patents Act 1988 30, 171(3), European Convention on Human Rights
Jurisdiction:
England and Wales
Citing:
Appeal from – Ashdown v Telegraph Group Ltd ChD 11-Jan-2001
The claimant, during his career had written private diaries, including minutes of secret political meetings. As he stepped down from leadership, he began to arrange publication. Before this was complete, the defendant published extracts. He . .
Cited by:
Cited – Fraser-Woodward Ltd v British Broadcasting Corporation Brighter Pictures Ltd ChD 23-Mar-2005
The claimant asserted infringement of copyright by the defendants in photographs of the family of David Beckham. The defendant admitted using the photographs but asserted that no permission was required since the use was a fair dealing.
Held: . .
Cited – IPC Media Ltd v News Group Newspapers Ltd ChD 24-Feb-2005
The defendant sought to advertise its new TV listings magazine, and to do so reproduced in its advert a copy of the front page of the equivalent magazine published by the claimant. The claimant sought damages for copyright infringement. The . .
Cited – Grisbrook v MGN Ltd and Others ChD 16-Oct-2009
The claimant sought an order committing officers of the defendant company for having failed to obey a court order requiring the defendant to cease infrigement of his copyright in photographs. He operated as a photographer of celebrities selling . .
Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
Cited – Heythrop Zoological Gardens Ltd (T/A Amazing Animals) and Another v Captive Animals Protection Society ChD 20-May-2016
The claimant said that the defendant had, through its members visiting their premises, breached the licence under which they entered, by taking photographs and distributing them on the internet, and in so doing also infringing the performance rights . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, Media, Human Rights
Updated: 23 July 2022; Ref: scu.159941