Publish and Be Damned

On two recent occasions I have been stunned by the ignorance of some BBC journalists about the law of copyright with regard to using other people's photographs without permission. Perhaps I shouldn't be. Even a leading guide on legal matters for journalists, McNae's Essential Law for Journalists, devotes several paragraphs to the public interest and ethical considerations of taking and using pictures from social media sites belonging to people who inadvertently find themselves in the news spotlight, but can only manage a single sentence elsewhere in the book to highlight the fact that using photographs is excluded from the fair dealing exception for news reporting, as shown in section 30(2) CDPA.

Clearly the majority of average users of social media will not think twice about the copyright implications of re-tweeting or otherwise re-publishing other people's comments or photographs, and in the main this is probably something which can be tolerated when no-one is being deprived of any actual financial benefit which might otherwise be due to them as authors. But this situation changes once the professional media become involved. Arguably this is where the Berne three step test becomes engaged. 

Too often the large news organisations rely on the ignorance of ordinary members of the public about their rights. By way of contrast however, try re-publishing anything substantial (say more than 11 words) from a news website without a licence and you can expect a bill from the Newspaper Licensing Agency. If nothing else, the Leveson Inquiry has taught us that many journalists operate to different ethical standards, and are not immune from gross hypocrisy. And it's not as if there isn't plenty of caselaw on the subject. The cases of Painer and Daniel Morel come to mind.

So what of the two stories which have prompted this article? The first concerns that dress which some people perceived as white and gold while others saw as black and blue. The background to the story, for those unfamiliar with it, can be found here on the BBC News website. My particular complaint lies in a Radio4 programme made by the BBC's Mukul Devichand (available here on iplayer for anyone located in the UK) in which he specifically defended his publication of the picture by reference to the fair dealing exception for news reporting, which of course does not apply to photographs. The authors of the original photograph have now engaged a solicitor to try and get recompense from those dozens of news outlets which have exploited this famous image for free.

The second instance involves another BBC journalist, Roland Hughes, and his story about his part in helping another 'lifted' photograph to go viral without the author's permission. You can read the story here, but while the photographer's moral right to be credited gets a mention, don't expect to see anything about infringement of copyright.

These are just two fairly recent examples of the particular problem faced by photographers, both amateur and professional. While the music and film industries have the resources to go after the infringers of their products, and get the offending websites blocked, individual photographers can face enormous difficulties in extracting fees from large news organisations who should know better, when they engage in similar piracy. Here's one example of the press's publish-and-take-the-consequences attitude. In addition to claiming that time pressures prevented the picture desk from getting permission, I have come across another national newspaper company whose picture desk defiantly refused to pay for using pictures it had taken from an urbex website, claiming that that they were allowed to do this by virtue section 30(1) because they were criticising the activities of Urbex explorers, notwithstanding the fact that s 30(1) only permits criticism of a copyright work, not an activity or the behaviour of the author. Their second line of ‘defence’ was that since the person who took the photographs must have been trespassing at the time he took them, this voided any copyright in the photographs. On another occasion, the Daily Mail hilariously accredited the 'Internet' as the copyright owner of a picture they had used without permission.

Having established that section 30(2) does not provide an exception for photographs to be used in connection with news reporting, and that section 30(1) will rarely justify using an image unless the purpose is just to criticise it, can there ever be a defence to using an image found on the internet, without permission? When it comes to text, the new exception (subsection 1ZA) added to section 30 for quotation would certainly seem to strengthen the hand of those who re-tweet comments, although invariably this 'defence' would fail because the original source has not been credited. But it is far from clear whether the quotation exception could apply to a photograph which was used other than in connection with news reporting; if it could, then where does that leave s30(2)? I suggest that quoting a photograph (or indeed any artistic work) might be possible for the purposes of something akin to criticism or review, but it will continue to remain outside the fair dealing rules for news reporting.

Then there is the reliance on a purported licence, such as creative commons, which may accompany an image found on, say, Flickr. Since copyright infringement is a matter of strict liability, a newspaper or other publisher would be unable to use as its defence the honest belief that the image had been made available under an open licence when in fact it had not, irrespective of the grounds for holding this view. And of course there’s the ultimate in ignorance of the law, believing that because something is placed on the internet, it is “in the public domain” and thus free for anyone to re-use, as advanced by the Irish Mail on Sunday.

“The photograph of Mrs Schregardus which we published to accompany this article came from Page 36 of this online magazine http://issuu.com/connors-bevalot/docs/publication1_-destress. Like Mrs Schregardus’s blog, it had been put into the public domain by Mrs Schregardus herself.”

Source: http://blogs.journalism.co.uk/2010/01/28/irish-mail-on-sunday-responds-to-air-controller-bloggers-complaint/

So that just leaves the public interest defence, apparently established, but not defined, by section 171(3) CDPA.

(3) Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.

I say ‘apparently’ because the courts are not so sure that this establishes a defence at all. But first we need to find out what ‘public interest’ may mean in relation to copyright infringement.

It is significant that while there is quite a bit of caselaw on the subject of a public interest defence for copyright infringement, much is very old, but it generally falls into two separate groupings. Professor William Cornish put it quite elegantly when he said there are two kinds of policy grounds: those involving "the policy against legal protection" for instance because the copyright work itself is obscene, immoral or deceptive, and the "policy favouring dissemination" such as bringing a disreputable matter, for which the work is evidence, to public attention.

We need not dwell on it here, but the whole matter is made more complicated by a debate about whether s 171(3) complies with the Infosoc Directive, specifically Article 5(3)(e):

"Members States may provide for exceptions or limitations to the rights provide for in Articles 2 and 3 in the following cases: [...] use for the purpose of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings."

and the waters are muddied still further by the suggestion that both the InfoSoc Directive and the CDPA might be trumped by Article 10 (the right to freedom of expression) of the European Convention on Human Rights. Fortunately this particular matter has been considered and largely rejected by the UK courts (see Ashdown v Telegraph Group Ltd [2001] EWHC/Ch/25 )

As mentioned, there is quite a bit of case law on the public interest issue, and those interested in it may find it helpful to read a summary by Jacob J (as he then was) in his first instance hearing of Hyde Park Residence Ltd v Yelland case (see paras [24-34]). I will return to this case in a moment and look at how the Court of Appeal dealt with the issue, but first I want to look at a few examples of what Prof Cornish calls the policy against protection, that is to say, declining to enforce copyright where the work itself is disreputable. The first case is Glyn v Weston Feature Films Ltd which concerned public morality as the work was largely about an adulterous affair. For those who would like to read an in-depth analysis of the case, I can recommend an article in the European Intellectual Property Review written by someone called Jeremy Phillips (who ever he is). The next case I want to consider is Lion Laboratories v Evans, where the defendant published a report belonging to the claimant which showed that the public and the courts were being deceived about the accuracy of an intoximeter device made by the claimants. The case also involved breach of confidence, but on appeal the court held that it should not enforce copyright in this instance because to do so would deny members of the public who might have been convicted on the strength of faulty readings given by the intoximeter, the opportunity to challenge their convictions. The last case in this category I want to look at is the Spycatcher trial (HM Attorney General v Guardian Newspapers). The matter went all the way to the House of Lords and was about whether the injunction preventing publication in the UK of Peter Wright’s book Spycatcher should be lifted. By way of background, the book had been written in contravention of the duty of confidence owed by Peter Wright to his previous employers, the Crown, and the Law Lords held that the copyright in the book should not be enforced, since to do so would be to condone the breaking of the Official Secrets Act. 

Aside from these sorts of case where the claimant's own misbehaviour results in the public interest being used to decline to enforce copyright, the only significant pre-CDPA case involving the public interest of 'policy favouring dissemination' was Beloff v Pressdram Ltd [1973] FSR 33. It needs to be borne in mind that this case was tried under the 1956 Copyright Act which did not contain a reference to the public interest. In this case Nora Beloff, a political columnist on the Observer, sued Private Eye magazine for infringing copyright by publishing a private internal memo she had written to other members of the Observer's staff, about various manoeuvrings within the then Conservative government. The case failed, not least because Ms Beloff did not have standing to bring the claim as she was not the owner of the copyright, which vested in her employer. Notwithstanding this finding the court went on to say that the public interest defence advanced by Private Eye also failed, albeit the judge's remarks were deemed to be obiter and have since been criticised.

So now it is time to return to the Hyde Park Residence case. This and the Ashdown case, also mentioned earlier, are the only significant cases in recent times to look at the public interest where the policy issue was one favouring dissemination. Readers may recall that this case was about the publication in the Sun newspaper of still images taken from CCTV installed at Mohamed Al Fayed's Paris residence known as Villa Windsor, several months after the death of Princess Diana in August 1997. It is worth pointing out that at first instance the court was dealing with an application to dismiss the claim against the Sun and was not a trial on the actual issue of copyright infringement. Jacob J found that the Sun did have reasonable chance of success with its defence based on fair dealing (section 30(1)) and public interest. This decision went to the Court of Appeal where, in theory, they were only looking at the judge's application of the law in arriving at his conclusions, and they also were not addressing the underlying infringement claim itself. Nonetheless, Mance and Aldous LJJ (with whom Stuart-Smith LJ agreed) made some significant negative remarks about, inter alia, the public interest defence. The CA also looked at the Section 30(2) defence put forward by the Sun but that is not relevant here. The gist of the case was that some months after the fatal crash, Mr Al Fayed senior arranged to have published a book entitled Death of a Princess containing his version of events, which it was alleged, grossly falsified significant facts including what had happened at Villa Windsor in the hours before the death of Princess Diana and Dodi Fayed. The Sun's case was that it was necessary to publish the still images to establish the truth about the timings of the couple's arrival and departure from the Villa, which showed Mr Al Fayed’s assertions to be false, and this then undermined many of his other fanciful claims in the book. Hyde Park Residence Ltd (representing, in effect Mr Al Fayed) countered that the Sun's sole purpose in its articles was to attack Mr Al Fayed personally, and this was in no way justified in the public interest. In the event the Court of Appeal unanimously allowed the appeal and rejected the Sun’s fair dealing and the public interest defences. The matter of infringement of copyright never went to full trial.

And so as things stand today, it is fair to say, the courts do not think much of the public interest defence when it comes to matters which may interest the public, but which involve little or no public policy. However I doubt that it will stop people's Facebook and Twitter accounts from continuing to be raided for the amusement and titillation of the newspaper-buying public.