Sunday 24 May 2015

Of Copyright and Spiders

In early 2006 HRH the Prince of Wales successfully sued Associated Newspapers for breach of confidence and infringement of copyright after the Mail on Sunday published extracts from Prince Charles's journals recording his impressions on a trip to Hong Kong (see IPKat posts here and here). Naturally on this blog we are only concerned about the copyright aspect of that case.
It was not disputed that Prince Charles was the author of the journals. However Associated Newspapers tried to argue that he was not the owner of the copyright, and that in fact Crown Copyright existed in the journals. The trial judge (Blackburne J) dismissed this claim fairly quickly, accepting that Prince Charles was not a servant of the Queen or of her government, and that although he might have been deputising for the Queen during the visit, his journals did not form part of his state duties and therefore were not subject to Crown Copyright. The judge then went on in turn to reject the defence arguments that the newspaper extracts were not a substantial part of the original works, that there was a fair dealing defence of reporting current events or alternatively the newspaper was dealing fairly with the works for the purposes of criticism or review. The problem with the latter defence, as the judge pointed out, was that it required that copies of the original work had previously been issued to the public, and that was obviously not the case with the Hong Kong journal, given the other part of the claim, namely breach of confidence. And finally, in a somewhat desperate attempt to find some defence against the claim of copyright infringement, the defence tried to invoke the public interest defence under section 171(3) of the Copyright Designs and Patents Act (CDPA). Once more, the trial judge was unpersuaded. Although Associated Newspapers appealed against the decision at first instance, their appeal was dismissed and Prince Charles won the injunction he was seeking to prevent Associated Newspapers from publishing any more extracts from his journals.

So why have I dug up this case from nine years ago? Well readers in the UK will be aware that the Guardian newspaper recently won an extended 5 year battle which went all the way to the Supreme Court, to have a number of Prince Charles's letters (the so-called Black Spider memos) which had been sent to government ministers, released under the Freedom of Information Act. Although several different arguments were advanced as to why they should not be released, copyright was not one of them. Why not, given the success of this approach in the earlier 2006 case?
The simple answer is: section 50(1) of the CDPA 1988. This subsection says:
50 Acts done under statutory authority.
(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.

So because the Freedom of Information Act authorises (indeed requires) that certain information is released to a member of the public, assuming the request complies with the necessary criteria, any copyright in the materials divulged is not infringed by the release, even where the copyright owner has not given permission for it to be issued to the public. The only specific protection afforded by the FoI Act is that personal data, as defined by the Data Protection Act, is exempt from disclosure.

Section 50 CDPA is both powerful yet rarely cited in either the commentaries or in cases before the courts. It effectively gives Parliament the power to bypass copyright protections in circumstances where some other statutory aim is sought, without necessarily making that fact explicit when the new legislation is undergoing scrutiny in Parliament. This was the case with the Freedom of Information Act which contains but a single reference to copyright buried away in a 2004 amendment made necessary by the devolution of various powers to the Scottish Parliament.


Robin Fry said...

FOIA sets up a scheme for the release of information. But it contains no provision for its further publication or communication to the public. Although it would be implicit that, in releasing the information, the authority may necessarily need to copy it, this does not then extend to authorise any reproduction by the recipient.

The United Kingdom Government Licensing Framework (October 2014) acknowledges this: 'Most information supplied in response to an access request will be protected by
copyright and permission to re-use it will be required. Statutory provisions for access
and re-use complement each other but are, in most cases, separate and distinct.'

So in my view copyright is not abrogated here. Of course an astute publisher might fashion their report in order to use one of the fair dealing provisions eg s 30(2) (news reporting) - or even s 30(1) (criticism or review, since there the additional condition there that the work has been made available to the public would it appears have been met). In those cases the copyright controls of Prince Charles would be nugatory. But his copyrights still remain.

Robin Fry

Thomas Dillon said...

I have to agree with Robin in disagreeing with this ingenious argument. If the POI Act had the broad effect contended for, the UK would have failed to implement Article 5 of Directive 2001/29/EC.

Thomas Dillon said...

Sorry, FOIA.

Francis Davey said...

A few thoughts on this.

First, there is a problem using s50 of the 1988 Act, because s44 of the FOI may get in there first.

Simply put: release by a public authority would generally involve some protected act (eg reproduction) and so would be "prohibited by or under an enactment" (s44 of the FOI) that would in turn make it exempt information and hence there would be no duty to release the data. Section 50 of the 1988 Act would not get a look in.

However almost everyone involved in FOI seems to think s50 does work like that. Although there are some exceptions.

Once released there are precisely no provisions of the FOI that permit any further use by the recipient, which makes the FOI not very useful if copyright material is released. Robin and Thomas are therefore almost certainly right.

I wrote a research paper a couple of years ago that looks into this in some detail (and considers the common law history), which explains this argument rather more fully.

Anonymous said...

@Robin and Thomas.
Many thanks to you both for your thoughtful input with which I agree in part.
@Robin, I think I erred in saying "where the copyright owner has not given permission for it to be issued to the public" which implies that the authority releasing the information is making it available to the public, when in fact I should probably have said "... permission for it to be copied to a member of the public". However I suspect the nicety of the distinction you make would be lost on most journalists who make freedom of information requests with the full intention of publishing at least some of the information thus acquired.

@Thomas, I suggest that Art 5(3)(e) of the Copyright Directive would cover the release of copyright material under an FOIA request. Also, a broad interpretation of Article 9 ('access to public documents') would tend to suggest that s 50 is compatible with European law, with regard to FOIA releases.