Prince of Wales v Associated Newspapers decision
The decision in the summary judgment application in this case, as well as providing lots of headlines, includes interesting legal analysis. The full decision is definitely worth a read, and if confidentiality and the balance between articles 8 and 10 ECHR is your thing, see in particular paras 95 et seq, 117 and 134. There is also an interesting discussion (although likely of limited future application...) as to the Crown Copyright provisions, and the extent to which the Prince of Wales had copyright in his diaries. Of most interest to us is the discussion of the defences to copyright infringement in the light of the Human Rights Act.
There is a fairly detailed analysis of Ashdown and fair dealing (see paras 162, 170, 172, 174) and discussion of the role for a wider public interest defence. Paras 179 and 180 are key. The Judge agreed with the argument that, in the absence of a public interest over and above fair dealing, it was wholly disproportionate to extinguish the property rights in copyright work. On the facts here, the court then found that there was nothing to indicate that this was a "rare case" (the possiblity of which had been identified by Ashdown) where there was such a public interest to warrant extinguishing.
I was also intrigued by the analysis of the argument from academic work that it could be abuse of copyright to use copyright to prevent publication of a work which could not be prevented by other means - termed a "surrogacy" argument. This was firmly rejected by the court (para 183 et seq) . It was held that copyright is a property right, subject to limits and defences; subject to these limits, the owner does not have to jusitfy its assertion.
So all in all, not a bad day for copyright. Limits exist and will be strictly investigated - but attempts to defeat copyright by building less tangible arguments such as those based in the public interest and principles of abuse of IP will face an uphill battle - although at least in the first case, not an impossible one.
There is a fairly detailed analysis of Ashdown and fair dealing (see paras 162, 170, 172, 174) and discussion of the role for a wider public interest defence. Paras 179 and 180 are key. The Judge agreed with the argument that, in the absence of a public interest over and above fair dealing, it was wholly disproportionate to extinguish the property rights in copyright work. On the facts here, the court then found that there was nothing to indicate that this was a "rare case" (the possiblity of which had been identified by Ashdown) where there was such a public interest to warrant extinguishing.
I was also intrigued by the analysis of the argument from academic work that it could be abuse of copyright to use copyright to prevent publication of a work which could not be prevented by other means - termed a "surrogacy" argument. This was firmly rejected by the court (para 183 et seq) . It was held that copyright is a property right, subject to limits and defences; subject to these limits, the owner does not have to jusitfy its assertion.
So all in all, not a bad day for copyright. Limits exist and will be strictly investigated - but attempts to defeat copyright by building less tangible arguments such as those based in the public interest and principles of abuse of IP will face an uphill battle - although at least in the first case, not an impossible one.
posted by Dr Abbe Brown at 2:15 pm
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