Originally published on Mondaq, April 2002
Article 10 (1) of the European Convention, reflecting the Universal Declaration of Human rights proclaimed by the General Assembly of the United Nations on 10th December 1948, states: Everyone has the right to freedom of expression.
Article 10 (2) continues: 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, for the prevention of disorder or crime, for the protection of 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.1
Everyone has the right of freedom of expression. This is a clear point but the expression of this right is subject to limits as set out in article 10 (2) of the European Convention on Human Rights.
With the Human Rights Act 19982, the European Convention on Human Rights has become law in the United Kingdom. Since November 2000, all Courts must take into consideration the judgments, decisions, declarations or advisory opinions of the European Court of Human Rights3 when arriving at a decision.
Further, section 3 (1) of the Human Rights Act 1988 requires that: so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Conventions rights.4
Section 12 of the Human Rights Act 1988 empathizes the role of the courts in defending the right to freedom of expression and states that this section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression5. Moreover, it is considered unlawful for a court to act in a manner contrary to a convention right unless obliged to act in such a way by a provision of primary legislation.
On the other hand, section 30 of the Copyright, Designs and Patents Act 1988 states that the following acts do not infringe any copyright right, provided that are accompanied by a sufficient acknowledgment:
- Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work;
- Fair dealing with a work (other than a photograph) for the purpose of reporting current events. No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme6.
Section 96 (2) of the Copyright, Designs and Patents Act 1988, about the infringement actionable by a copyright owner provides that: In an action for infringement of copyright all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.
Further section 171 of the Copyright Act 1988 affirms that: Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on ground of public interest or otherwise7.
Hyde Park v. Yelland8 was about an action for copyright infringement against the Sun newspaper brought by Hyde Park Residence Ltd which was a company providing security services for Mohammad Al Fayed. Mr Al Fayed had made claims of a conspiracy, which resulted in the death of his son and the Princess of Wales arising fom their alleged plans to marry. To support his claims, Mr Al Fayed stated that the couple went to visit the house where they were supposed to move after the marriage.
The Sun Newspaper obtained stills of the video camera in the house that demonstrated that whilst there was a visit, it was short and that the house was not going to become their matrimonial home.
At first instance Jacob J accepted the possibility of a public interest defence in an action for infringement of a copyright under U.K. law.
In Service Corporation v. Channel 4 9 Lightman J stated:"The starting point in any application such as the present is the fundamental right and public interest in freedom of speech, the press and broadcasters as protected by Article 10 of the Convention on Human Rights and Fundamental Freedoms"10. As a matter of fact before the decision of the Court of Appeal of Hyde Park the court seemed to have given powerful support to the possibility of a defence under article 10 of the European Convention of Human Rights for an action of copyright infringement11. The defence was not indeed directly connected with article 10 of the Convention but was used to support the theory of the possibility of a public interest defence.
In PCR v. Dow Jones Telerate Lloyd J. talked about the connections between Article 10 of the European Convention on Human Rights and the public interest defence assuming that such a defence is consistent with and reinforced by Article 10 of the European Convention on Human Rights12.
And the question of public interest, with no reference to the European Convention on Human Rights, were examined in Lion Laboratories Ltd v. Evans13 in which a newspaper editor wished to publish information concerning doubts about the dependability of an instrument used to measure the level of intoxication by alcohol. This case has been cited as an example of the way a public interest defence can arise in a case involving a copyright infringement even if it started from the different point of view of the breach of confidence.
In Hyde Park v. Yelland at first instance 14 Jacob J., following the trend, assumed that it may well be that balancing the 'freedom of expression' conferred by Article 10 of the ECHR and the 'right to respect for private life' conferred by Article 8 will involve the judges in just the same or a similar sort of exercise as is involved in judging whether there is a public interest defence15. However, there is a difference between the public interest defence and the proposition of a defence under article 10 of the European Convention on Human Rights. The Convention clearly approves the limitations of the right to freedom to expression under article 10 (2) and it seems reasonable to say that the provisions of section 30 of the Copyright Act 1988 are in accordance with the limitations as provided by the Convention.
Many commentators were surprised when the Court of Appeal of Hyde Park v. Yelland 16 reversed the decision of Jacob J. denying the possibility of a public interest defence in an action for a copyright infringement. However, the Court seems to admit that there are circumstances in which a claim for infringement may be considered unlawful Aldous L.J. in paragraph 66 stated: "The circumstances where it is against the policy of the law to use the court's procedure to enforce copyright are, I suspect, not capable of definition. However it must be remembered that copyright is assignable and therefore the circumstances must derive from the work in question, not ownership of the copyright. In my view a court would be entitled to refuse to enforce copyright if the work is: (i) immoral, scandalous or contrary to family life; (ii) injurious to public life, public health and safety or the administration of justice; (iii) incites or encourages others to act in a way referred to in (ii)"17.
This decision, due to its undeniable contradictions, has been firmly criticized by Robert Burrel in an article in which he argues that the judges may have been influenced by the doctrine of property18. Notwithstanding, the staring point, in my personal opinion, was good but the sentence did not have the necessary consistent to become stare decisis.
Article 10 of the European Convention on Human Rights applies only if there is a breach of the conditions provided under the second part of the article. The question we have to ask to ourselves is therefore: are the provisions contained in section 30 of the Copyright Act 1988 sufficient to fulfill the requirements deriving from the Convention? If the answer is no article 171 (3) applies and there is the possibility for the judges to decide with an increased elasticity and following the aim of the doctrine of the freedom of expression. Only in this case the judges will have the possibility to add a small number of cases in which the infringement of a copyright will be possible in the name of the concept of freedom of expression.
Following article 10 (2) of the European Convention on Human Rights the exercise of the right of freedom of expression is subject to the limitations prescribed by law and necessary in a democratic society for the protection of the rights of other.
In Ashdown v. Telegraph Group Ltd 19 at first instance the Vice Chancellor, Sir Andrew Morrit, accepted that Article 10(2) could apply in a case of copyright infringement without explaining how and when.
In this case Mr Ashdown, a prominent politician, sued the Sunday Telegraph for copyright infringement. The Sunday Telegraph had, in fact, reproduced the contents of a private meeting within the Prime Minister Tony Blair and the claimant.
The defendant argued that the provision of the Copyright Act 1988 must be interpreted in connection and in such a way to render them compatible with the Human Rights Act 1998 section 3 (1). Sir Morrit assumed, as other judges did before, the importance of the right of property and stressed the right of every natural or legal person to the peaceful enjoyment of his possessions20. He continued: "intellectual property rights in general and copyright in particular constitute a restriction on the exercise of the right of freedom of expression. Thus Article 10 is engaged"21. I do not agree with this point of view: article 10 is not engaged because the Copyright Act is totally consistent with the provisions of article 10 (2) of the Convention. Only when it is explained how the above mentioned Act infringes article 10 of the Convention can such a defence arise.
In apparent contradiction with what he said before he then argued then that the provisions of the Copyright Act can satisfy the requirements of article 10 of the European Convention on Human Rights22. He then continued: "it is not suggested that the provisions of the CDPA are any more restrictive of the right of freedom of expression than those of the copyright legislation of all or most other democratic states. I can see no reason why the could should travel outside the provisions of the CDPA and recognize on the facts of particular cases further or other exceptions to the restrictions on the exercise of the right to freedom of expression constituted by the CPDA"23.
The decision of the Court of Appeal in Hyde Park v. Yelland stated that there is no public interest defence to a copyright claim pursuant to section 171 (3) of the Copyright Act 1988 and the aim of this decision was that the Copyright Act 1988 by itself in a position to guarantee sufficient protection. Moreover, even if the decision was issued before the Human Rights Act 1998 came into force, the decision of the Court of Appeal was binding on following decisions on the scope of section 171 (3) and Aldous J set out the effects of the latter provision in paragraph 66. This is the reason why the Vice-Chancellor in Ashdown v. Telegraph concluded that the decision of the Court of Appeal on the scope of section 171 (3) was binding on him24.
In Imutran Limited v. Uncaged Campaigns Limited25, which was about the publication on the web site of the defendant of laboratory reports, minutes of meetings and correspondence belonging to the claimant, Sir Andrew Morrit had the chance to underline his precedent decision; he stated: "the decision of the Court of Appeal in Hyde Park Residence Ltd v. Yelland is binding on me. That decision establishes that there is no public interest defence to the copyright claim pursuant to the rule of law preserved by s. 171 (3) CDPA"26.
After many years of uncertainty it seemed like if the courts were taking a firm position against the public interest defence.
In the Court of Appeal in Ashdown v. Telegraph Group Ltd27 Lord Phillips M.R. assumed that rare circumstances can arise where the right of freedom of expression will come into conflict with the protection afforded by the Copyright Act, notwithstanding the express exceptions to be found in the Act. In these circumstances, he considered that the court is bound, insofar as it is able, to apply the Act in a manner that accommodates the right of freedom of expression.28
It is indeed not very clear when and how these circumstances will arise; further, provided that there is a conflict between the requirements of the European Convention on Human Rights and the Copyright Act how can the solutions be found in the latter? In other words if there is a solution under the Act there is not such a conflict!
In accordance with this contradictory position Lord Phillips M.R. continued: "The first way in which it may be possible to do this is by declining the discretionary relief of an injunction. Usually, so it seems to us, such a step will be likely to be sufficient. If a newspaper considers it necessary to copy the exact words created by another, we can see no reason in principle why the newspaper should not indemnify the author for any loss caused to him, or alternately account to him for any profit made as a result of copying his work. Freedom of expression should not normally carry with it the right to make free use of another work's.29
Thus far the position of the court seemed to be in favor of the interpretation of Aldous L.J in Hyde Park v. Yelland30 but the court then took a very different position with respect to a public interest defence.
Lord Phillips M.R. stated:" In the light of these judgments, we do not consider that Aldous L.J. was justified in circumscribing the public interest defence to breach of copyright as tightly as he did." "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. In such circumstances, we consider that section 171 (3) of the Act permits the defence of public interest to be raised"31.
The conclusion of the Court of Appeal in Ashdown v. Telegraph Group Ltd is inconsistent and, in particular, the Court failed to explain in which cases such a defence, based on the concept of public interest in association with the provisions of the Human Rights Act 1998, could be permitted provided that the exceptions under section 30 of the Copyright Act are not considered enough to protect the right to freedom of expression.
Aldous J. in Hyde Park v. Yelland gave a controversial explanation as to whether such an defence could be permitted and Mance L.J. refuse to categorize the situation at all "Whilst account must be taken of the different nature of the right involved in copyright, I prefer to state no more in this case than that the circumstances in which the public interest may override copyright are probably not capable of precise categorisation or definition"32.
The Court of Appeal in Ashdown v. Telegraph Group Ltd also refused to take any responsibility in such a controversial area.
In effect the concept of public interest has been connected with the provisions of Article 10 of the European Convention on Human Rights without a clear explanation of the differences between these two concepts. It has been said that Public Interest is a nebulous concept, which can, in some cases provide a defence for copyright infringement33.
The Courts assume that sometimes the right to expression as protected by the European Convention on Human Rights and by the Human Rights Act 1998 which can be used for a public interest defence. We have no idea why, given that Article 10 (2) of the convention expressly guarantees the possibility of limitations of the right in virtue of the protection of other people's right.
I do not see how the provisions of section 30 of the Copyright Act might be outside the guarantees provided by the Convention and it is indeed clear that the courts of United Kingdom were not able to explain when an action for infringement of a copyright could be in breach of the above-mentioned guarantees.
The right to freedom of expression can be adequately guaranteed by the provisions of the Copyright Act and the reproduction of the content of a video, for example, can be done by writing an article in a newspaper instead of selling the video. It has been well said that copyright rarely gives a monopoly over information and where there is such a risk section 30 of the Copyright Act 1988 applies.
In the United States the conflict between the First Amendment and the law of copyright has been solved with the concept of fair use of a copyright; the Copyright Act 1988 has somehow reproduced this concept in the U.K. Law and I assume that is the best way to protect the right to freedom of expression.
The doctrine of fair use, in United States, was supposed to be able to cover the conflict of interest between the right to freedom of speech (widely guarantee by the First Amendment) and the copyrights34.
Notwithstanding, the doctrine of fair use has been widely criticized and Patricia L. Loughlan assumed: The argument for bringing a First Amendment privilege outside of the confines of the fair use doctrine is that the purpose of the Copyright Act although supposed to act as the engine of the First Amendment do not always coincide with the basis underlying the First Amendment. Furthermore, maintaining the First Amendment privilege within the fair use doctrine leaves the impression that the interest found in the Bill of Rights can be given away every time the price to copyright holders is too high... Protection of the freedom of speech from overzealous courts, Congress and copyright holders must be assured35.
This is the marginal American approach that absurdly sounds very similar to the approach of the U.K. courts these days.
It is well know that in the balance between the defence of the First Amendment and other primary rights the United States of America give a predominant position to the first.
I cannot see why this kind of approach should be even more drastic in United Kingdom where the constitutional control of the operation of the courts is indeed very different and in which the balance between the right to freedom of expression and the other primary rights (such as the right of property for example) often swung in favor of the latter.
The concept of fair dealing can largely assure the defence of the right to freedom of expression and I think that there should be no possibility of further exceptions outside section 30 of the Copyright Act 1988. If such a limitation can be avoided using the unclear concept of the public interest defence I do not see how this can be done applying the European Convention on Human Rights.
If the courts are looking for more flexibility I really believe they should wait a modification in the Copyright Act because at the moment all the requirements under the European Convention on Human Rights are fulfilled.
1 See article 10 of the European Convention on Human Rights, Rome 1950.
2 See Human Rights Act 1998, c. 42.
3 See section 2 of the Human Rights Act 1998, c. 42.
4 See section 3 (1) of the Human Rights Act 1998, c. 42.
5 See section 12 (1) of the Human Rights Act 1998, c. 42. Section 12 (4) states that the court must have particular regard to the importance of the Convention right to freedom of expression.
6 See section 30 (1), (2), (3) of the Copyright, Designs and Patents Act 1988, c.48.
7 See section 171 (3) of the Copyright, Designs and Patents Act 1988, c.48.
8 Hyde park v. Yelland  R.P.C. 655.
9 Service Corp. International Plc v Channel Four Television Corp  E.M.L.R. 83.
10 Service Corp. International Plc v Channel Four Television Corp  E.M.L.R. 83 at 89.
11 See also PCR v. Dow Jones Telerate  F.S.R. 170 and Mars UK v. Teknowledge  F.S.R. 138.
12 PCR v. Dow Jones Telerate  F.S.R. 170 at 187.
13 Lion Laboratories Ltd v. Evans  2 All ER 417.
14Hyde park v. Yelland  R.P.C. 655
15 Hyde park v. Yelland  R.P.C. 655 at 670.
16 Hyde park v. Yelland  Ch. 143.
17 Hyde park v. Yelland  Ch. 143 at 168.
18 Robert Burrel, Defending the Public Interest 22 (2000) EIPR p. 394. For a slightly different point of view see also Richard A. Browes, Copyright: Court of Appeal considers fair dealing defence and reject common law defence of public interest 22 (200) EIPR p. 289.
19 Ashdown v. Telegraph Group Ltd 21  ECDR 286.
20 Ashdown v. Telegraph Group Ltd  21 ECDR 286 at 290.
21Ashdown v. Telegraph Group Ltd  21 ECDR 286 at 292.
22 Ashdown v. Telegraph Group Ltd  21 ECDR 286 at 292.
23 Ashdown v. Telegraph Group Ltd  21 ECDR 286 at 292. He then suggested how the decisions of the European Court of Human Rights on which the Sunday Telegraph relied were going in the same direction. See Jersild v. Denmark (1994) 19 EHRR 1 and Goodwin v. U.K. (1996) 22 EHRR 123.
24 Ashdown v. Telegraph Group Ltd  21 ECDR 286 at 299.
25 Imutran Limited v. Uncaged Campaigns Limited and Daniel Louis Lyon  16 ECDR 191.
26Imutran Limited v. Uncaged Campaigns Limited and Daniel Louis Lyon  16 ECDR 191 at 201-202.
27 Ashdown v. Telegraph Group Ltd  44 EMLR 1003.
28 Ashdown v. Telegraph Group Ltd  44 EMLR 1003 at 1018.
29 Ashdown v. Telegraph Group Ltd  44 EMLR 1003 at 1018-1019.
30 The arguments against the recognition of the possibility of a public interest defence were first developed by Hugh Prescott et. al., The Modern Law of Copyright and Designs (2nd ed., London, Butterworths, 1995), pp. 126-131.
31 Ashdown v. Telegraph Group Ltd  44 EMLR 1003 at 1022-1023.
32 Hyde park v. Yelland  Ch. 143 at 172.
33 David BainBridge, Intellectual Property (4th ed., London, Financial Times Management, 1999).
34 See Patricia L. Loughlan, Looking at the Matrix: Intellectual Property and Expressive Freedom, 24  pp. 30-39.
35 This was the approach of See Patricia L. Loughlan, Looking at the Matrix: Intellectual Property and Expressive Freedom, 24  p. 37. I do not agree: even if the American case law present some sporadic episode in which someone went to court assuming the protection of the First Amendment against copyright the matter is still controversial. See Time Inc. v. Bernard Geis Associates 293 F. Supp. 130 (1968) and Triangle Publications Inc. v. Knight-Ridder Newspapers, Inc. 445 F. Supp. 875 (1978).
Copyright, Designs and Patents Act 1988, c.48.
Human Rights Act 1998, c. 42.
European Convention on Human Rights, Rome 1950.
Ashdown v. Telegraph Group Ltd  44 EMLR 1003.
Ashdown v. Telegraph Group Ltd 21  ECDR 286.
Goodwin v. U.K. (1996) 22 EHRR 123.
Hyde park v. Yelland  Ch. 143.
Hyde park v. Yelland  R.P.C. 655.
Imutran Limited v. Uncaged Campaigns Limited and Daniel Louis Lyon  16 ECDR 191.
Jersild v. Denmark (1994) 19 EHRR 1.
Lion Laboratories Ltd v. Evans  2 All ER 417.
Mars UK v. Teknowledge  F.S.R. 138.
PCR v. Dow Jones Telerate  F.S.R. 170.
Service Corp. International Plc v Channel Four Television Corp  E.M.L.R. 83.
Time Inc. v. Bernard Geis Associates 293 F. Supp. 130 (1968).
Triangle Publications Inc. v. Knight-Ridder Newspapers, Inc. 445 F. Supp. 875 (1978).
David BainBridge, Intellectual Property (London: Financial Times Management, 1999).
PRESCOTT Hugh et. al., The Modern Law of Copyright and Designs (London: Butterworths, 1995).
BROWES Richard A., Copyright: Court of Appeal considers fair dealing defence and reject common law defence of public interest 22 (200) EIPR 289.
BURREL Robert, Defending the Public Interest 22 (2000) EIPR 394.
LOUGHLAN Patricia L., Looking at the Matrix: Intellectual Property and Expressive Freedom, 24  30.