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.
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.
