“The principles of free expression are yet to be fully accommodated within the law of copyright.” (US & UK IP Law Dissertation)

by Tom Cox on May 28, 2013

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Freedom of Speech Legal Blog DissertationFirst class law graduate and future commercial lawyer Tom Cox publishes his first class legal dissertation entitled “The principles of free expression are yet to be fully accommodated within the law of copyright. Discuss with reference to the relevant law in the USA and the UK.” Connect with Tom Cox on LinkedIn here.

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TABLE OF CONTENTS

INTRODUCTION

–          Copyright and Free Expression

I. COPYRIGHT AND FREE SPEECH IN THE USA

–          Copyright as the ‘Engine of Free Expression’

–          The Fair Use Doctrine: an Economic Analysis

–          Market Effect – § 107(4

–          Commercial Nature – § 107(1)

–          Denial of the Public Interest

–          The Public Interest in the Fair Use Analysis

II. COPYRIGHT IN A CONSTITUTIONAL PARADIGM

–          A Constitutional Conflict

–          The Copyright Clause

–          Free Speech and the Copyright Clause

–          Fair Use, Free Expression and the Public Interest in the 21st Century

III. COPYRIGHT AND FREEDOM OF EXPRESSION IN THE UK

–          Copyright and Freedom of Expression an Antithetical Relationship

–          Fair Dealing

–          Amount & Importance of Work Taken

–          Prior Publication

–          Commercial Competition

–          Public Interest in Fair Dealing

IV. SCOPE FOR FREEDOM OF EXPRESSION IN UK COPYRIGHT LAW

–          The Human Rights Act 1998

–          The Effect of EU Jurisprudence

–          Future Exceptions to UK Copyright Law

CONCLUSION

–          Does Copyright Accommodate for Free Expression

–          The Future for Copyright and Free Expression

BIBLIOGRAPHY

 

INTRODUCTION

Copyright and Free Expression

 ‘A system of freedom of expression, operating in a modern democratic society is a complex mechanism.’[1] At the core of this complex mechanism is a group of rights assured to individual members of society – rights to communicate information, opinions and ideas through any medium or artistic way.[2] Similarly, at the core of a copyright system is a group of rights in ‘literary and artistic’ expression which are assured to their creator.[3] However copyright grants to an author a limited monopoly over their expression ‘[t]hus copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.’[4] There is an inherent tension between copyright and free expression; a grant of copyright is also a grant to control a particular expression.

Although this inherent tension is by no means a recent phenomenon[5], the last 40 years has witnessed a remarkable upsurge in the debate on the relationship between copyright and freedom of expression. To explain this rise in eminence, attention must be paid to the fact that the scope and term of copyright has excessively expanded in the last century becoming radically favored towards pro-ownership.[6] Simultaneously free speech as a constitutional entitlement or a legal right has become taken seriously both within the US and Europe.[7] Broadly speaking the three main arguments for this legal entitlement to free speech are: 1) information in the marketplace of ideas will lead to truth, 2) self-fulfilment and 3) to enable citizen participation in a democracy.[8]

The purpose of this essay is to map out the legal landscape of this relationship in the US and the UK primarily analysing how the courts have managed the copyright and freedom of expression relationship. The early jurisprudence in this area suggested that copyright legislation itself accommodates free speech concerns.[9] Free speech concerns were as a matter of course taken into consideration by making provision for the existing exceptions to copyright such as fair use, under the law of the US, and fair dealing, under the law of the UK.[10] Therefore there was no need to consult explicit free speech instruments or principles.[11] This traditional approach rejected the application of fundamental free speech principles assuming that that the principles of free expression were accommodated within copyright legislation itself.[12]

This analysis will proceed from the basic premise that the inherent economic philosophy within copyright has the tendency to overshadow legitimate free speech concerns. In this regard I will look at how the courts have operated the fair use and the fair dealing defences in order to provide for the needs of free expression. As a corollary of this discussion I aim to examine the contemporary position of free expression within copyright law in order to explore whether the principles of free speech have been accommodated. Of the mechanisms considered to protect free speech, the idea expression dichotomy is commonly considered to preserve expression in copyright disputes.[13] However this doctrine is out with the scope of this work. This work will focus on the prevalence the courts have awarded to the fair use and fair dealing doctrines in resolving the conflict between copyright and free expression.

Importantly nothing in this essay presupposes that any particular part of the respective copyright systems require to be relinquished and replaced by fundamental principles of freedom of speech. Nor does it suggest that in every copyright case a plenary interpretation of relevant free speech principles must be rendered. The only presumptions are: firstly, that copyright is now a more powerful constraint on the free expression of society than ever before.[14] Secondly, that copyright stands as an obstacle to the unrestricted access to information.[15] Thirdly, that the principles of free expression have an explicit role to play in the overall scheme of copyright law.

I. COPYRIGHT AND FREE SPEECH IN THE USA

Copyright as the ‘Engine of Free Expression’

‘In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression.’[16]

The implications of this approach to the First Amendment and copyright, in Harper & Row[17], marked an epoch in the court’s jurisprudence on copyright. The engine metaphor dictates that copyright powers creativity by incentivizing production of expression. Thus, copyright stimulates expressive diversity for the general public good.[18] At the core of this ‘engine’ are two constitutionally competing principles. Firstly Article I, Section 8, Clause 8 of the US Constitution, known as the Copyright Clause, empowers the United States Congress: ‘To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’[19] This is the source of power that enables Congress to enact copyright legislation. However this is not an unrestricted empowerment. The First Amendment to the United States Constitution states: ‘Congress shall make no law… abridging the freedom of speech, or of the press, or the right of people peaceably to assemble, and to petition the Government for a redress of grievances.’[20] At the foundational core of copyright exists the balance between these two constitutional principles.

In practical terms this constitutional relationship is broken up, divided and defined at length in the tedious sections of various acts regulating copyright in the USA. This is where § 107[21] of the Copyright Act, the fair use defence, comes into play. Copyright legislation is perceived to embody the First Amendment protections in the latitude afforded by the fair use defence.[22] Theoretically, by virtue of a fair use analysis free speech concerns will naturally be addressed making separate consideration under the First Amendment unnecessary.

Fair use’s symbolic characterization as protector of free speech was first heralded by the Supreme Court in Harper & Row. The case concerned the unauthorised publication of an extract from ex-American President Gerald Ford’s yet-to-be published memoirs on leaving office, including an account of his decision to pardon Richard Nixon. This was the first time the Supreme Court was called upon to deal with the complex nexus between copyright and free speech. The court dictated that the fair use defence is an internal mechanism within the copyright legislation that accommodates for First Amendment principles.[23] However, the ease with which the court assimilated the internal mechanisms as the safeguards of free speech interests raises serious concerns.

The Fair Use Doctrine: an Economic Analysis

17 USC § 107 – Limitations on exclusive rights: fair use

‘[F]air use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.’[24]

The fair use defence is regarded as a particularly wide exception to copyright as compared with other jurisdictions.[25] Nevertheless § 107 has discernible limits; an underlying philosophy is appreciable when the fair use defence is broken down. For these purposes the focus will be concerned with subsections (1) and (4), in reverse order.

Market Effect – § 107(4)

The Supreme Court, in Harper & Row, asserted that ‘undoubtedly the single most important element of fair use’[26] is the effect of the use upon the potential market for the value of the copyrighted work. Clearly a determination of the detrimental impact caused to the creators market is paramount in calculating the ‘fairness’ of a particular secondary use. However it is less than clear how much influence a market analysis determination should play in a free speech determination. Whilst copyright has an inherent economic philosophy, typically an individual who asserts First Amendment rights is not primarily seeking financial rewards from that use, but rather is motivated by a desire to enlighten or persuade others.[27] In contrast, the ‘market effect’ test requires courts to brand certain secondary users where the work has an economic effect on the creator’s ability to profit. This conflicts with the fact that the First Amendment does not necessarily restrict expression on the basis that it is has a negative impact on the creator’s market.[28] Yet the ability of the magazine[29] to siphon off potential profits became the operational factor in the demise of the defendants fair use defence.

Commercial Nature – § 107(1)

The concept of a commercial motive was central to the Court’s decision: ‘every commercial use of copyrighted material is presumptively an unfair exploitation’[30] of the copyright owner’s right. §107(1) narrows the court’s field of vision by discriminating against expression that has the potential to make an economic gain by branding it use of a ‘commercial nature.’[31] In prejudicing against uses of a ‘commercial nature’ by focusing on the potential profit, this condemns most newspapers and news broadcasts as well as fictions and biographies and even academic works that are sold on the open market.[32] However these works can contain material of real political, literary, or other public interest.[33] There is a strong public interest in the publication of secondary works.[34]

Such a presumption is far from conclusive in a First Amendment analysis. For free speech concerns it is essential that the ‘subject matter’ of the communication is given due consideration.[35] Even commercial speech can convey information in the public interest.[36] A commercial motive does not necessarily decrease the public benefit derived from the use; neither should it automatically preclude a finding of fair use. Nevertheless, failure to meet the demands of § 107 leads to the possibility that the defense will be altogether rejected by the courts. This is quite in contrast to the First Amendment that does not avert forms of speech but strives to protect them.[37]

Denial of the Public Interest

The Supreme Court in Harper & Row was given an opportunity to carve out an exception based on the grounds of political public interest. The petitioners argued that the status of ex-president Ford emphasised the political nature and thus the public interest in publication.[38] The Court responded that such an exception would result in ‘little incentive to create or profit in financing such memoirs, and the public would be denied an important source of significant historical information’[39] The court focused on the lost future revenue open to public figures as opposed to the vital role of the press disclosing information in the public interest.

The court’s position sits in contrast to the prevailing argument that the press is entitled to some legal privileges because it carries out an essential function of democratic society in disseminating information on political matters.[40] This decision essentially diminished the spirit of the public interest as a determinative factor in copyright infringement by refusing to acknowledge a ‘public figure exception’ to the copyright statute.[41] The court refrained from engaging with the public interest in a meaningful way opting to focus exclusively on the four factors detailed in the fair use analysis.[42] Where the court applies the fair use analysis in a mechanical, commercially concentrated, manner they overlook genuine concerns of public interest. The result is that fair use’s economically motivated underpinnings undermine its power to protect speech.[43]

The principles articulated by the court in Harper & Row concerning the fair use analysis hinged on monetary related motives and profit intent presumptions. The court was intensely concerned with the potential revenue prospects lost to the ex-president. These economically motivated considerations were not offset against any significant free speech concerns. In order to take free expression considerations into account the court must look outside simply the nature of the economic consequences of appropriation and consider the public interest in the subject matter appropriated.[44] The courts are by no means precluded from considering the public interest. Fair use has to be for the purpose of ‘criticism, comment, news reporting, teaching, scholarship, or research’[45] and this necessarily entails considering the public interest. However the weight attached to the public interest in the subject matter of the work relies entirely on the courts willingness to engage with these principles. Fair use’s protection of First Amendment interests has become increasingly sporadic in recent decades.[46]

The Public Interest in the Fair Use Analysis

The Harper & Row affair was the first episode in the judicial denial of free speech concerns in copyright disputes. This stands in stark contrast to cases where the Supreme Court has fundamentally relied on the public interest in deciding fair use issues. In Time, Inc. v. Bernard Geis Associates[47] the court substantially relied on the ‘public interest in having the fullest information available on the murder of President Kennedy.’[48] This public interest in dissemination of information outweighed the countervailing copyright interest in the expression. The Supreme Court has subsequently described fair use as a ‘subsidy … for the public good.’[49] The salutary features of fair use are focused on the over-arching public good. This may mean, at times, rigorously enforcing copyrights to ensure genuine incentives with the aim of stimulating artistic creativity for the general public good.[50] However the Supreme Court has stated that the policies underlying the Copyright Act ‘ultimately serve the cause of promoting broad public availability of literature, music, and the other arts… for the general public good.[51]

Leval has notably submitted that the fair use analysis should ‘reflect the underlying goals of the copyright law to stimulate the creation and publication of edifying matter.’[52] Ten years after suggesting this approach the 11th Circuit in Suntrust v. Houghton Mifflin Co.[53] appear to interact with this rationale. The case concerned the publishing of ‘The Wind Done Gone’, a parody from the perspective of a slave on ‘Gone with the Wind’. Following the existing precedent the Court noted that the First Amendment privileges are ‘preserved through the doctrine of fair use.’[54] However they explicitly recognised that ‘the public interest is always served in promoting First Amendment values and in preserving the public domain from encroachment’[55] (emphasis added). The court explicitly recognised and engaged with the First Amendment and the concept of public interest. The First Amendment formed a fundamental point of reference in the fair use analysis.

Netanel notes that in repeatedly invoking the First Amendment it operates as a ‘lodestar for interpreting copyright law.’[56] Contrary to the approach in Harper & Row, the court did not insulate the First Amendment from copyright by simply saying that fair use accommodates free speech principles. The First Amendment became an operative principle that the courts considered as part of the fair use analysis. Following this approach the perceived deficiencies of fair use as a protector of free speech are not encountered. The First Amendment itself is functional within the case and this brings into play meaningful free speech precedence. The court ultimately held that ‘the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law.’[57] Whilst ultimately resolving the dispute through the fair use defence the court explicitly engaged with the First Amendment and the underlying utilitarian philosophy of copyright: public edification.[58] The public interest in publication of the book became a determinative consideration for the court.

This is not the first time the court has accommodated free speech values in copyright cases. The Supreme Court, in Sony Corp.[59], in finding fair use applicable stated their decision ‘is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves.’[60] Moreover in Mattel Inc. v Walking Mountain Productions[61] the Ninth Circuit held that the secondary use in question ‘created the sort of social criticism and parodic speech protected by the First Amendment and promoted by the Copyright Act.’[62] These cases demonstrate that despite the accepted view that the legislation safeguards the interests of free speech courts are not precluded from interpreting the First Amendment into the analysis of the case.

The approach in Suntrust, Mattel Inc. and Sony Corp was relatively simple. The courts retained the fair use analysis to guide them in making the correct conclusion but importantly remained conscious of the underlying First Amendment. Awareness of the latent and indispensable free speech concerns enables the court to realise the inherent public interest in a fair use determination. The court, in Suntrust, emphasised that the fair use defence has ‘constitutional significance as a guarantor to access and use for First Amendment purposes.’[63] The court noted that whilst embarking on the fair use analysis they must ‘remain cognizant of the First Amendment protections interwoven into copyright law.’[64] Suntrust’s approach ensures that the values of free speech and public interest are able to exert some genuine influence in the fair use analysis. This was not a vitiation of the precedent established in Harper & Row but simply an interpretation. The court simply seeks to engender a fair use analysis that meaningfully embodies and accommodates free speech concerns. The court’s conclusion is not an attempt to circumvent the delicate balance achieved in the copyright legislation but simply to offer a rights-oriented analysis of that legislation.

II. COPYRIGHT IN A CONSTITUTIONAL PARADIGM

A Constitutional Conflict

Netanel suggests that Harper & Row marked the beginning of fair use’s debilitation.[65] Harper & Row paid short shrift to the importance of public interest in the fair use determination undermining the core free speech features. On the other hand, Suntrust, which did not make it to the Supreme Court, suggested that the courts should remain conscious of the underlying First Amendment and public interest principles at play. Ultimately, the influence of a public interest in fair use depends on the willingness of the courts to engage with the concept and accord a meaningful interpretation.[66] These contrasting approaches exemplify why fair use has been described as ‘capricious to the point at which it is no more principled than whimsy.’[67]

Two decades after the decision in Harper & Row the Supreme Court was again called upon to debate the relationship between copyright and freedom of expression. In Eldred v. Ashcroft[68] the court rejected a First Amendment challenge to the Copyright Term Extension Act 1998[69] extending the term of copyright from life plus fifty years to life plus seventy years for published works with existing copyrights. Subsequently the Supreme Court issued its decision in Golan v Holder[70] on 18th of January 2012. The case considerably reflected the challenge in Eldred. The Petitioners challenged the validity of § 514 of the Uruguay Round Agreements Act 1994.[71] § 514 of the URAA granted full copyright protection to a host of pre-existing works within the public domain that were previously unprotected in the United States on the grounds of their foreign origin. Thus millions of works that were freely available to use became subject to copyright protection. The court again rejected the First Amendment challenge.

Golan heavily relies on Eldred and both cases broadly converge to resonate the judicial denial of First Amendment claims in the copyright arena. However this denial that originated in the context of the fair use defence has evolved into a denial in the constitutional dimension. The aberration in Eldred and Golan is that the dispute left the quaint landscape of a fair use analysis and unequivocally entered the constitutional arena. Eldred and Golan consider facial challenges to the US Constitution on the basis of the First Amendment. These cases concern a classic clash of constitutional values, purposes and provisions.

The Copyright Clause

The Supreme Court stated in both cases: ‘the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.’[72] This accords to the precedent that the exercise of Article I powers is traditionally subject to a deferential standard of review.[73] The majority, in Eldred, recognised that Congress has traditionally been given wide discretion regarding such policy decisions.[74] Deferring to the carefully crafted bargain hammered out by the legislature is of course a proper respect of the doctrine of the separation of powers. Yet, there is marked difference between an appropriate deferential determination and a submissive court obsequious to Congress’s demands.

Within the context of Article I section 8 powers generally, the Copyright Clause was drafted with substantial constraints on congressional power.[75] Nimmer, in his seminal article on the relationship between copyright and the First Amendment, highlighted that ‘the scope and extent of fair use falls within the discretion of the Congress. The limitations of the First Amendment are imposed upon Congress itself.’[76] Indeed, only by employing the First Amendment metric itself can we earnestly accept the majority’s position that the internal mechanism, fair use, actually safeguards First Amendment interests.[77] In this sense Congress cannot insulate the copyright arena from First Amendment examination. The Bill of Rights aims to impose constitutional limitation on the power of Congress yet such limitations have no meaning where the government is not subject to them.[78]

Free Speech and the Copyright Clause

Lack of enthusiasm on behalf of the judiciary to engage with the First Amendment is not, however, representative of the Supreme Court panel. Justice Breyer, dissenting in Eldred, notes that the Copyright Clause “exists not to ‘provide a special private benefit’ but ‘to stimulate artistic creativity for the general public good.’”[79] In this sense ‘Progress’[80] is a societal labour and ‘progress of science’[81] is aimed at society at large not with reference to individual creators alone.[82] Breyer’s dissent is fundamentally different to the opinion of the court. He posits that the CTEA is focused on rewarding authors without stimulating further creativity thus the CTEA sets the Copyright Clause and the First Amendment at cross-purposes.[83] Whilst the majority presumes that free speech interests are necessarily protected within the legislation Breyer actually looks at the effect the legislation has on free expression. He concludes the CTEA will abridge the expressive autonomy of the public undermining the values inherent in the Copyright Clause.[84]

Breyer conscious of the free speech interests at stake recognises that ‘what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression.’[85] Essentially the deferential standard of review cannot be pursued where significant free speech interests are implicated. Where free speech interests are at risk the court may have to adapt the doctrine to accommodate for wider free speech principles. The significance of Breyer’s dissent is that the accommodation for free expression must come from the court not the legislature.

Justice Breyer develops this rationale with his dissent in Golan. Literal First Amendment review is not required, the court simply needs ‘to scrutinize with some care the reasons claimed to justify the Act in order to determine whether they constitute reasonable copyright related justifications for the serious harms.’[86] He does not attempt to internalise the dispute from a constitutional debate nor fleetingly accept the integrity of the fair use defence without conducting some form of analysis. The beauty of Breyer’s argument is its simplicity. He candidly states that the constitutional debate charges the courts with ‘interpreting the Constitution as a single document.’[87] It is vital to interpret the Constitution as a single document; the Constitution is the common denominator across the board of all these issues.[88] From Breyer’s perspective the URAA “‘abridges’ a preexisting freedom to speak”[89] thus there is First Amendment interest at stake and the courts cannot overlook this straightforward fact.

Essentially Breyer submits that the court must remain cognizant of the First Amendment when considering the Copyright Clause. They cannot simply assert that the internal safeguards, fair use, accommodate free speech concerns. Copyright legislation should not constrain the power of the Constitution; the Constitution should define the powers and limits of copyright.[90] The clarity and directness of Breyer’s dissent is laudable in many respects. However ultimately Breyer’s dissent is exactly and only that, a dissent from the majority.

Fair Use, Free Expression and the Public Interest in the 21st Century

The myopic approach with which the majorities in Eldred and Golan repeat the mantra established in Harper & Row has a somewhat disingenuous feeling to it. The Supreme Court essentially treats the Copyright Clause as some lifeless device of commercial administration. Not as an engine intent on stimulating artistic creativity and enlightenment for the general public good. This would appear to undermine the Court’s special role as regards interpreting the meaning of the constitution.[91] In Eldred the court affirmed Congress’s power even where it seemed far from related to the objectives and ideals of the Clause’s purpose.[92] Justice Ginsburg in Golan took off from where she left in Eldred refraining from actually analyzing the effect on free speech and declining to even consider the ‘public interest’. By neglecting substantive analysis and deferring to the institutional competency of Congress, the Supreme Court has curtailed the importance of the judiciary’s role in the advancement and improvement of modern copyright law and, specifically, principles of freedom of expression.[93] When the court in Eldred held that First Amendment scrutiny is unwarranted the court almost entirely closed the door on further first amendment challenges to traditional copyright law.[94] Golan made sure the door was firmly shut confirming that judicial intervention in this area is all but dead. More so than ever it seems that ‘against the claims of copyright, the First Amendment has no independent voice.’[95]

III. COPYRIGHT AND FREEDOM OF EXPESSION IN THE UK

Copyright and Freedom of Expression: an Antithetical Relationship

‘[R]are circumstances can arise where the right of freedom of expression will come into conflict with the protection afforded by the 1988 Act, notwithstanding the express exceptions to be found in the Act.’[96]

Ashdown v Telegraph Ltd[97] provided the UK courts their first opportunity to make a determination on the copyright and freedom of expression relationship after the coming into force of the Human Rights Act 1998.[98] The case concerned an unauthorised publication of verbatim quotes from Paddy Ashdown’s, the then leader of the Liberal Democrats, yet-to-be published memoirs. The unique aspect of the case was the submission by The Telegraph that Article 10 of European Convention on Human Rights[99], the right to freedom of expression, was engaged. Article 10(1) states: ‘[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’[100] With the coming into force of the HRA 1998 the normative status of free expression was emphasised as a specific human right, part of a ‘Bill of Rights.’[101] Thus for the first time the UK courts faced a similar problem to the US: a clash concerning a constitutional, or quasi-constitutional, principle with copyright law.

The court proceeded from the basis that in the rare circumstances where freedom of expression comes into conflict with copyright, the court was bound to apply the Act ‘in a manner that accommodates the right of free expression.’[102] Notwithstanding these ‘rare’ circumstances, the fair dealing defence ‘will normally afford the court all the scope it needs properly to reflect the public interest in freedom of expression and in particular freedom of the press.’[103] Contrary to the US denial of a conflict the Court of Appeal expressly recognised that copyright was antithetical to freedom of expression.[104] Despite this novelty in approach the semantics of the case closely resemble the US jurisprudence. Effectively the internal mechanism fair dealing provides enough latitude for the court to resolve a conflict between copyright and free expression. As raised above, there are serious questions concerning fair use’s ability to accommodate free speech principles. The same issues arise in the fair dealing context.

Fair Dealing

Section 30

‘30 Criticism, review and news reporting.

(1) Fair dealing with a work for the purpose of criticism or review… does not infringe any copyright in the work

(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work…’[105]

Fair dealing is not a general principle but a concentration on a strict set of circumstances and permitted acts.[106] In contrast, the fair use defence is an open list of permissible purposes and is generally regarded as being flexible in nature, capable of exonerating almost any form of secondary use.[107] The limits of the fair dealing defence are substantially circumscribed and represent only one aspect of the permitted exceptions set out in the CDPA 1988.[108] Contrary to the fair use defence the CDPA 1988 does not set out the considerations in determining fairness.

The court in Ashdown in considering fairness took into account the three most important factors discussed in The Modern Law of Copyright and Designs[109], namely the extent of commercial competition, prior publication and the amount and importance of the work taken.[110] Importantly, Lord Philips set the tone for the analysis requiring the tests, based on past precedent, to be applied flexibly.[111] It is questionable whether Lord Phillips’s approach in practice yielded a flexible application of the existing precedent.

Amount and Importance of Work Taken

Lord Phillips noted that the case of Fressoz and Roire[112], whilst not a copyright case, illustrates that it is possible for the public interest to require publication of the exact expression used by a person notwithstanding the copyright enjoyed by the creator.[113] Despite recognition of ECHR jurisprudence Lord Phillips concluded ‘that much of the information in the minute had already been made public and that this fact made it even harder to justify the ‘Sunday Telegraph’ publication.’[114]

Yet, in Fressoz and Roire the European Court of Human Rights[115] also stated that the information published in the article was already in the public domain and not confidential. The conviction was based merely on the publication of the tax returns, an act prohibited under French law.[116] The court noted that ‘by publishing part of the photocopied documents the applicants had been able to show that their information was true’[117] this was vital ‘to the credibility of the information supplied’[118] (emphasis added). The publication corroborated the contentions in the article and was vital to the impact the article produced. Drawing a parallel, the fact that Paddy Ashdown had conducted a secret meeting was already publicly known, the information was in the public domain. Publication of the actual minute simply corroborated this information adding to its credibility.

Such a determination is not incongruous with the courts own jurisprudence. In Lion Laboratories[119] the claimants attempted to censor information in the public interest by exerting their copyright held in the information. Having regard to the substantive matters at stake the court denied the claim stating that the purpose of the secondary publication was to bring information in the public interest into the public domain.[120] The court considered that the publication of the actual documents was required to give the story the necessary impact: publication of mere facts would not have been enough.[121] In this sense the actual documents added credibility to the facts even where the press misinterpreted those documents.[122] The court emphasised the vital role the press plays in society in disseminating important information; it was appropriate for the press to publish the information rather than provide to it the authorities.[123]

Prior Publication

The Court of Appeal stated that the High Court had been right in attaching importance to the fact that the minute was obtained without Ashdown’s approval.[124] Moreover this was a ‘material consideration when considering the defence of fair dealing.’[125] In the High Court The Telegraph highlighted that no money was paid for the ‘political leak’ and that the motivation was the disclosure of politically significant material.[126] However such an argument could not simply change the unfair dealing into fair dealing.[127] Consequently this factor went heavily against the finding of fair dealing.[128] Yet, such an approach fundamentally overlooks the fact that investigative journalism aims to disclose material previously unpublished.[129]

The ECtHR has repeatedly provided persons implicated with breach of professional confidence and whistle-blowing with protection under Article 10.[130] Most recently in 2008 the Grand Chamber of the ECtHR in Guja v Moldova[131] affirmed that sanctioning persons for breach of confidence could have ‘serious chilling effect’[132] discouraging others from reporting misconduct. Whilst The Telegraph was not being criminally sanctioned for the breach, the fact that the breach weighs against the finding of fairness could have a chilling effect. When you cannot predict the weight that may be accorded to a given speech this can have a chilling effect.[133] The prudent and risk-averse user concerned with an expensive lawsuit, even if successful, will desist from using the speech at all. [134] This can lead to a form of self-censorship an effect subversive to the fundamental aim of the free expression. [135] Such a prospect seems far from satisfactory now that the HRA 1998 is in force.[136]

Application of a flexible analysis would have made room for the guidance that Article 10 jurisprudence offers. A constructed approach infused with a fresh interpretation taking into account the ECHR jurisprudence would have allowed the courts to develop a clear route to resolve such disputes.[137] A flexible application of the existing precedent would have ensured a theoretically structured pathway to be followed by future courts. Instead Lord Phillips offers a rhetorically structured denial of the presence of Article 10. In confirming the High Court’s position the Court of Appeal seriously diminished the applicability of ECHR jurisprudence to the copyright domain.

Commercial Competition

Commercial competition (market effect analysis) has been characterised in both the US and the UK as the most important element in the analysis.[138] Harper & Row above exemplifies the dangers of an analysis strongly concentrated on the commercial aspects for free speech concerns. Dangers not visibly heeded by the Court of Appeal in Ashdown. Despite commanding flexibility in application of the test the court focused almost entirely on the private financial loss to the claimant, there was no opportunity for the legitimate public interest to outweigh the economic harm.[139] The court was deeply concerned with the rights of the private parties at stake and this proved determinative. The publication of part of the memoirs ‘destroyed a part of the value of the memoirs.’[140] Such an interpretation fundamentally fails to pay sufficient regard to the role of the media in informing the public on matters of public concern.[141] In an extremely commercialised world, where almost everything has a price tag, if the destruction value invariably influences against a finding of fair dealing, there will be few places where free expression will function.[142]

Moreover it completely overlooks the fact that the article concerned political speech on a matter of national interest. The ECtHR has stated that it is incumbent on the press ‘to impart information and ideas on political questions and on other matters of public interest. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders.’[143] There is little scope under Article 10(2) for restrictions on political speech or debate on questions of public interest.[144]  The House of Lords have subsequently affirmed that political speech is at the ‘top of the list’[145] of speech protected by Article 10. The court’s approach effectively enables a private figure to censor political information in the name of copyright.[146] Whilst the information was to be released in the forthcoming memoirs the quotes concerned a secret meeting on a possible coalition between Labour and the Lib Dems. Such information could have a particularly influential impact on a voter’s decision. A true accommodation of the demands of Article 10 would have focused on the right of the press to disseminate and the public to receive information on the activities of their elected politicians as well as the rights of the copyright owner to control use of a work.[147]

The courts have shown that they are willing to leave the strict contours of an economic determination when considering fair dealing. In the Time Warner[148] case, the court in considering the fair dealing defence under section 30(1) stated that allowing the secondary use of the documentary ‘is clearly a suitable matter for public debate and so for public criticism… so that the public may form a view of the decision criticised and of what they are missing or rightly being spared.’[149] The court put determinative emphasis on the benefit to the general public in gaining access to the documentary. MacMillan highlights that this case is evidence that ‘the court was prepared to uphold the interests of non-commercial, broadly political speech in this case.’[150] Regardless of the important interest film producers have in controlling the access to their productions dissemination of information was vital to the public interest.

This logic was echoed in a case concerning the infringement of copyright in videotapes of an interview with the convicted serial killer Dennis Nilsen. Lord Bingham confirming the High Court judgment noted that the public interest did not require that the first defendant should be prevented from broadcasting the extract.[151] Hirst LJ, added that ‘we should not interfere with the defendants’ freedom of speech, by which mean their freedom to publish in full the programme, including the Nilsen interview.’[152] The court stated that publication of the footage was fully in line with Article 10 ECHR[153], in essence the clips added credibility to the programme. In these cases the court has remained cognizant of the underlying public interest in allowing the footage to be shown. Looking outside the private interests of the parties at stake the decisive factor was the public interest in the dissemination of the information.

Public Interest in Fair Dealing

Despite stating the importance of the ECHR jurisprudence, the court in Ashdown elided substantively incorporating the principles established by the ECHR under Article 10. The relevance of Article 10 jurisprudence was simply mentioned in the prefatory as opposed to operative analysis of the decision. Despite calling for a flexible application of subsisting principles in light of the HRA 1998 the court failed to follow its own imperative of interpreting Article 10 jurisprudence into the fairness determination.[154] While the Strasbourg case law on copyright is very limited, Article 10 in principle ought to be relevant in many disputes concerning the use of copyright works.[155] It is unclear what the court meant when it noted that it was necessary to consider the existing precedent flexibly. The effect of the decision is that copyright law in general is insulated from fundamental freedom of expression principles.

In practical terms the court will continue to employ the existing principles under the fair dealing defence. However as the Article 10 jurisprudence develops and evolves it is clear that a fair dealing defence concerned predominantly with the fairness between the parties, without reference to the wider public interest, is too narrow.[156] Failure to consider the wider public interest in dissemination of the information undermines the aims of free expression. Freedom of the media to publish information is inextricably linked to and justified by the public interest in the revelation of that information.[157] Until the courts proactively apply the fair dealing defence simultaneously with reference to the underlying principles of Article 10 the law of copyright will struggle to accommodate the demands of free expression.

IV. SCOPE FOR FREEDOM OF EXPRESSION IN UK COPYRIGHT LAW

The Human Rights Act 1998

The turn of the millennium signified an important new era for freedom of expression in the UK. The HRA 1998 and its partial incorporation of the ECHR granted freedom of expression specific legal status. During the passage of the Bill, Jack Straw, the then Home Secretary, stated: ‘it happens to be the case that the European Court has given much greater weight to article 10 rights of freedom of expression… We want to reflect that in our domestic law.’[158] Importantly the HRA 1998 explicitly obliges the courts to interpret and take into consideration the jurisprudence on the ECHR.[159] With this in mind the courts can no longer ignore the constitutional dimension of free expression.[160]

To the contrary, in Ashdown, Lord Philips denounced the provisions of the act as merely underlining the need to have regard to the contexts in which ECHR jurisprudence had given particular importance to freedom of expression.[161] At the time this was seemingly unexceptional considering that if legislation is clear s 3 of the HRA 1998 does not allow defendants to shoehorn extra ECHR principles to achieve an otherwise unattainable result.[162] However against the backdrop of the court’s approach in the copyright dimension the UK courts have developed a comprehensive jurisprudence on the ECHR.

Article 10 is now perceived as ‘Europe’s First Amendment[163], although it perhaps does not have the same ‘presumptive priority.’[164] The House of Lords has noted that s 12(4) of the HRA 1998 requires the court to have particular regard to the importance of free expression.[165] Lord Steyn has stated that where Articles 8 and 10 are in conflict the court must conduct the ‘ultimate balancing test.’[166] As part of this test the court must conduct ‘an intense focus on the comparative importance of the specific rights being claimed…’[167] Effectively the court must follow the imperative that Article 10 cannot presumptively outweigh Article 8.[168] In other words you cannot have particular regard to one right without equally having regard of the other.

The court, in Ashdown, recognised that Article 10 comes into conflict with Article 8 and 1 of the First Protocol.[169] However the court’s elegant solution simply mentions the relevant ECHR jurisprudence at the beginning of the judgment but shields the operative fairness determination from Article 10 jurisprudence.[170] The court appears to take into consideration wider concerns but ultimately applies the existing precedent rigidly. The court does not embark on some form of balancing test. This is because they proceed on the basis that the delicate balance between the competing rights has already been achieved by the legislature.[171] Yet, the intention of the HRA 1998 was to accentuate the normative status of free expression as a specific constitutional entitlement.[172] Of course, Ashdown was decided well before the UK courts had developed an extensive theory of constitutional interpretation on the HRA 1998.[173]

Nevertheless the incorporation of this ‘Bill of Rights’ appeared to have no impact on weight attached to free expression in the copyright dimension. Subsequent case law would suggest a concurrent theme.

In Grisbrook v MGN Ltd[174], the court recognised in denying the public interest defence that the defendant essentially relies on Article 10.[175] The court submitted that the difficulty with this is that Parliament has already made extensive provision for ensuring copyright material can be made available to secondary users through the detailed sections within the CDPA.[176] Instead of engaging with the Article 10 the court looks to the internal mechanisms of the copyright legislation to offer some form of protection.

Further in HRH Prince of Wales v Associated Newspapers[177] the court, in confirming Ashdown, held that ‘the fair dealing defences under section 30 will normally afford the court all the scope it needs properly to reflect the public interest in freedom of expression and, in particular, the freedom of the press.’[178] However, as suggested above the fair dealing defence struggles to provide the same protection for free speech in line with the Article 10 jurisprudence. Debate on matters of public interest is an intrinsic characteristic of the ECtHR’s jurisprudence on freedom of expression.[179] Yet the public interest taken into account by Ashdown certainly seems narrower than the conception under the ECtHR’s jurisprudence.

Furthermore, in the context of patents, in the Scottish First Division[180] the former Lord President (Cullen) has stated “there can be no question of s 3 ‘trumping’”[181] the relevant section of the Patent Act. The prevailing trend would tend to suggest that the courts within the IP arena are unwilling to engage with the HRA 1998. Clearly parliament’s competence to legislate in this area cannot be encroached upon by the judiciary in the name of Article 10. Nevertheless, this does not prevent the court recognising the existence of a legitimate right on the basis of free expression. The HRA 1998 is not demanding that the courts to ‘trump’ existing legislation rather its intention is to procure a rights oriented interpretation. The subsequent case law on the matter has essentially diminished not developed the importance of the HRA 1998 within copyright disputes.

The Effect of EU Jurisprudence

UK Copyright law has undergone a process of harmonisation in the European Union for more than twenty years.[182] In 2001 the Information Society Directive[183] came into force with a profound impact for the future of Member States exceptions to copyright protection. The Directive strictly dictates an exhaustive list of exceptions[184] that are subject to the Berne 3-step test.[185] This severely narrows the possible types of exception that can be implemented. The principal aim of the Directive is to secure maximum harmonisation of copyright law and a high level of protection for intellectual property.[186]

The EU’s enthusiasm for a high level of protection has further been mirrored by the practice of the ECJ. The court in Infopaq[187] held that exceptions that detract from the general principles established under the Directive ‘must be interpreted strictly.’[188]

The narrow interpretation of exceptions advocated by the ECJ sits in contrast with the previous position of the UK courts.[189] It has previously been held that in the fair dealing defence the phrases ‘criticism or review’ and ‘reporting current events’ are expressions that should be interpreted liberally.[190] The Infopaq case is likely to have detrimental impact on the liberal interpretation previously bestowed to the fair dealing defence.[191]

The court in Ashdown noted that the existing precedent was to be applied flexibly. This would enable the public interest and principles of freedom of expression to be taken into account. It is now unclear whether there is some level of flexibility available to the courts when applying exceptions. The court in Infopaq essentially determined a ‘one size fits all’ approach to the exceptions and limitations under the Directive.[192]  It appears that there is little scope under EU law to generally interpret principles of freedom of expression where this would stray outside the interpretation aimed for under the Directive. Yet courts must be granted some flexibility in their decision making especially where fundamental rights, such as free expression, are engaged.[193]

The principles of the Infopaq case were adopted by the Court of Appeal in the Meltwater[194] litigation and the case is now pending before the Supreme Court.[195] This means that the Supreme Court will have the opportunity to decide on the complex issue of fundamental principles of copyright law within the digital economy. Whilst it is hard to imagine the court radically changing anything asseverated by the ECJ in Infopaq, it is no secret that there is a vehement feeling in the IP community that current IP laws existing from an ‘era of paper and pen may not fit the age of broadband and satellites.’[196]

Nevertheless, within the Directive there is remaining scope for expanding and adapting current exceptions. Specifically, the Directive provides an express exception for the purposes of ‘caricature, parody or pastiche.’[197] Limited parodic secondary use is allowed under UK law but the current exceptions provide little scope for meaningful use of parody.[198] Importantly, parody engages significant free expression concerns.[199] Thus the implementation of a specific exception for parody would allow the current law to further adapt to the demands of free expression.

Future Exceptions to UK Copyright Law?

In November 2010 David Cameron stated that the government would be reviewing the current IP laws specifically to encourage ‘the sort of creative innovation that exists in America.’[200] Subsequently, in May 2011, an independent review on intellectual property and growth was published.[201] The Hargreaves Review submits that current copyright exceptions should be developed to their maximum potential under EU law, including parody.[202] Overall, the Review makes 10 recommendations aimed at updating the current copyright regime to support innovation and development of economic growth in the digital economy. The recommendations were broadly accepted in the Government’s Response issued in August 2011.[203] Following the Response the Government issued a Consultation on the Government’s proposals for implementing a number of the recommendations.[204] The Consultation states that there is ‘considerable scope to extend, simplify and improve UK exceptions to copyright.’[205] The Government therefore intends to explore the scope for widening copyright exceptions within EU law to the maximum degree.[206]

Importantly as regards free expression and copyright the consultation states that the current absence of a parody exception raises questions concerning ‘freedom of speech and expression.’[207] Further, the current arrangements for the use of parody have ‘the potential to stifle free expression.’[208] The Government’s recognition of the need of an explicit exception for parody is a major step forward in the copyright free expression discourse. Whilst the courts have a major role to play in the interpretation and protection of fundamental rights ultimately the legislature retains the ability to fundamentally reform and alter the landscape of copyright law. The Government’s proposals as dictated by the Consultation demonstrate a firm commitment to reforming the current exceptions to copyright for the benefit of the wider public. The Government has accepted the Review’s recommendation and intends to introduce an exception for parody.[209] The Government’s intention is to respond to the consultation making formal proposals for legislation or other action in an IP and Growth White Paper later in 2012.[210] Parody should become an explicit exception within UK law in the near future.

CONCLUSION

Does Copyright Accommodate for Free Expression?

Examining the case law of these trans-Atlantic counterparts it appears that the private interests of the economically motivated parties have prevailed in the face of free expression claims. However ultimately these disputes result from the implications, or perhaps more rightly the oversight, of legislation. The courts are not the sole despotic tyrants of free expression’s demise in the copyright dimension. The legislature has the last word in how the internal mechanisms will work in practice and the courts cannot capriciously undermine the authority of the legislature. Having said that the legislature is not omnipotent. The courts have an active role to play in ensuring that the legislature exercises its powers within the limits of the constitution. The courts cannot simply wave the symbolic flag of free expression without actually analyzing the effect on free speech.

Jurisprudence exists in both jurisdictions that dictate that the court is able to engender an interpretation providing a flexible application of the existing precedent infused with free speech considerations as well as the interests of the copyright

holder. Alas this approach has arisen sporadically. The contemporary economy cases emphasise a particularly conservative approach to the interpretation of free expression values in the sphere of copyright. Until courts, more rightly majorities, actively engage with external principles of free expression copyright will continue to struggle with the accommodation of free speech.

The Future for Copyright and Free Expression

The future of this area, like the past half a century, is likely to be dominated by the political as opposed to judicial branch of society. In the USA Golan confirmed that First Amendment challenges to copyright legislation are essentially dead. A future petitioner may be wiser to expend time, resources and money pursuing a political challenge as opposed to a legal one. However one can only imagine the success of Joe Bloggs’s attempt, in the name of free speech, at lobbying Congress in the face of the ever-avaricious corporations.

As for the UK, lack of a Supreme Court determination and evidence of legislative reform suggest that the debate is far from dead. Furthermore as the courts perennially strive to develop a robust constitutional theory of the ECHR jurisprudence within the UK freedom of expression will continue to thrive and flourish. Ultimately the relationship between free expression and copyright would fundamentally benefit with a ruling from the ECtHR. In such a case Article 10 would no longer exist as part of interpretive function but would operate as foundational factor of the court’s opinion. The court would be forced to truly map out the landscape of the relationship between copyright and free expression.

For the time being, before a future court fleetingly accepts that the balance between copyright and free expression is struck by the legislature, they should perhaps pay credence to a simple imperative,

‘Free speech claims aren’t going to protect against ever-expanding copyright claims unless those who make them also affirmatively argue for the value of access and thus of copying and experiencing works.’[211]

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UK Cases

  • Ashdown v Telegraph Group Ltd, [2001] Ch. 685
  • Ashdown v Telegraph Group Ltd, [2002] Ch. 149
  • Attorney General v Guardian Newspapers Ltd (No 2), [1990] 1 AC 109
  • AXA General Insurance Ltd, Petitioners, 2010 S.L.T. 179
  • Beggars Banquet Records Limited v Carlton Television Limited and Another, [1993] E.M.L.R. 349
  • Beloff v Pressdram Ltd, [1973] F.S.R. 33
  • Campbell v MGN Ltd, [2004] 2 A.C. 457
  • Douglas v Hello! Ltd, [2001] 1 QB 967
  • Grisbrook v MGN Ltd, [2009] Official Transcript Case No: CH 1998 G No. 3299
  • HRH Prince of Wales v Associated Newspapers Ltd, [2007] 3 W.L.R. 222
  • Hubbard v Vosper, [1972] 2 Q.B. 84
  • Hyde Park Residence Ltd v Yelland and Others, [2000] 3 W.L.R. 215
  • ITP SA v Coflexip Stena Offshore Ltd, 2004 S.L.T. 1285
  • Lion Laboratories Ltd v Evans, [1985] Q.B. 526
  • Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others, [2012] Bus. L.R. 53
  • PCR Ltd v Dow Jones Telerate Ltd, [1998] E.M.L.R. 407
  • Pro Sieben Media AG v Carlton UK Television Ltd, [1999] 1 W.L.R. 605
  • Regina v Secretary of State for the Home Department, ex parte Simms, [2000] 2 A.C. 115
  • Re s (A Child), [2005] 1 A.C. 593
  • Reynolds v Times Newspapers Ltd and Others, [2001] 2 A.C. 127
  • The Secretary of State for the Home Department v Central Broadcasting Limited and Another, [1993] E.M.L.R. 253
  • Time Warner Entertainments Co LP v Channel Four Television Corp Plc, [1994] E.M.L.R. 1

US Cases

  • Abend v. MCA, Inc., 863 F. 2d 1465 (9th Cir. 1988)
  • Abrams v. United States, 250 U.S. 616 (1919)
  • Bigelow v. Virginia, 421 U.S. 809 (1975)
  • Breard v. Alexandria, 341 U.S. 622, (1951)
  • Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, (1994)
  • Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003)
  • Eldred v. Ashcroft, 537 U.S. 186, 219 (2003)
  • Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)
  • Fogerty v. Fantasy, Inc. (92-1750), 510 U.S. 517 (1994)
  • Golan v. Gonzales, 501 F.3d 1179, (10th Cir. 2007)
  • Golan v. Holder, 611 F. Supp. 2d 1165, (D. Colo. 2009)
  • Golan v. Holder, 565 U. S. ____ (2012), yet to be officially reported in the United States Reports available at: http://www.supremecourt.gov/opinions/11pdf/10-545.pdf
  • Graham v. John Deere Co., 383 U.S. 1 (1966)
  • Harper and Row, Publishers, Inc. v Nation Enters, 471 U.S. 539, (1985)
  • Mattel Inc. v Walking Mountain Productions, 353 F.3d 792, (9th Cir. 2003)
  • Mazer v. Stein, 347 U. S. 201 (1954)
  • Sony Corp. of America v. Universal City Studio, (464 U.S. 417 (1984))
  • Stewart v. Abend, 495 U.S. 207 (1990)
  • Suntrust v. Houghton Mifflin Co., 252 F. 3d 1165 (11th Cir. 2001)
  • Time, Inc. v. Bernard Geis Associates, 293 F. Supp. 130
  • Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, (1975)
  • Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)
  • Whitney v. California, 274 U.S. 357 (1927)

ECtHR Cases

  • Anheuser-Busch Inc v Portugal, 11 Jan. 2007 (No. 73049/01) 45 E.H.R.R. 36
  • Bladet Tromsí v Norway, 20 May 1999 (No. 21980/93) 29 E.H.R.R. 125
  • Castells v Spain, 23 Apr. 1992 (No. A/236) 14 E.H.R.R. 445
  • Dupuis v France, 7 Jun. 2002 (No. 1914/02) 47 E.H.R.R. 52
  • Fressoz and Roire v France, 21 Jan. 1999 (No. 29183/95) 31 E.H.R.R. 2
  • Goodwin v The United Kingdom, 27 Mar. 1996 (No. 17488/90) 22 EHRR 123
  • Guja v Moldova, 12 Feb. 2008  (No. 14277/04) 53 E.H.R.R. 16
  • Jersild v Denmark, 23 Sept. 1994 (No. A/298) 19 E.H.R.R. 1
  • Lingens v Austria, 8 Jul. 1986 (No. 9815/82) 8 EHRR 407
  • Radio Twist v Slovakia, 19 Dec. 2006 (No. 62202/00) 22 B.H.R.C. 396
  • Sunday Times v UK, 26 Apr. 1979 (No. A/30) 2 E.H.R.R. 245
  • Thoma v Luxembourg, 29 Mar. 2001 (No. 38432/97) 36 E.H.R.R. 21
  • Wingrove v United Kingdom, 1 Jan. 1994 (No. 17419/90) 18 E.H.R.R. CD 54

ECJ Cases

  • (C-5/08) Infopaq International A/S v Danske Dagblades Forening, [2012] Bus. L.R. 102
  • (C-275/06) Productores de Musica de España (Promusicae) v Telefonica de España SAU, [2008] 2 C.M.L.R. 17

Canadian Cases

  • Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), [1997] 2 FC 306 ( Michelin and CIE v A.A.A.T.G.W.U.C (CAW-Canada) [1997] 2 F.C. 306 (F.C.T.D))

Republic of Ireland Cases

  • EMI Records v Eircom, [2002] IEHC 108

Government White Papers

  • Rights Brought Home [CM 3782] available at: http://www.archive.official-documents.co.uk/document/hoffice/rights/intro.htm

UK Legislation

  • Copyright, Designs and Patents Act 1988 c. 48
  • Human Rights Act 1998 c. 42

US Legislation

  • United States Constitution (September 17, 1787)
  • Bill of Rights, the United States Constitution (December 15, 1791)
  • 17 USC Copyright Act 1976

EU Legislation

  • Directive 2001/29/EC on Copyright and Related Rights in the Information Society [2001] OJ L167/10

 EU Green Paper

  • Copyright & the Challenge of Technology – Copyright Issues Requiring Immediate Action, COM/88/172

International Convention

  • Berne Convention (1886 as amended)
  • The Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950)

Parliamentary Publications

  • Press standards, Privacy and Libel – Culture, Media and Sport Committee Publication, 24 February 2010, available at: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/36205.htm

Parliamentary Debate

  • Copyright, Designs and Patents Bill, HL Deb 08 December 1987 Vol. 491 cc72-8, available at: http://hansard.millbanksystems.com/lords/1987/dec/08/copyright-designs-and-patents-bill-hl#S5LV0491P0_19871208_HOL_131
  • Human Rights Bill [Lords], HC Deb 16 February 1998 Vol. 306 cc767-93, available at: http://hansard.millbanksystems.com/commons/1998/feb/16/human-rights-bill-lords

News Articles

  • BBC News, ‘UK copyright laws to be reviewed, announces Cameron’, BBC News, 4 November 2010, available at: http://www.bbc.co.uk/news/uk-politics-11695416
  • Blackstone Chambers, News, Cases: ‘Meltwater Holding BV v The Newspaper Licensing Agency Ltd’, 12 February 2012, available at: http://www.blackstonechambers.com/news/cases/meltwater_holding_bv.html
  • Intellectual Property Minister Baroness Wilcox quoted at News Distribution Service for Government and the Public Sector, 4 November 2010, available at: http://nds.coi.gov.uk/content/Detail.aspx?ReleaseID=416370&NewsAreaID=2

 Reviews

  • Hargreaves, I. 2011. ‘Digital Opportunity: A Review of Intellectual Property and Growth’. London: Intellectual Property Office. Available at: http://www.ipo.gov.uk/ipreview

 Government Responses

  • HM Government. 2011. ‘The Government Response to the Hargreaves Review of Intellectual Property and Growth’. UK: Intellectual Property Office. Available at: http://www.ipo.gov.uk/ipresponse.htm

Government Consultations

  • HM Government. 2011. ‘Consultation on Copyright’. UK: Intellectual Property Office. Available at: http://www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-copyright.htm

Web Blogs

  • L. Lessig, ‘A big victory: Golan v. Gonzales, 5 September 2007, available at: http://lessig.org/blog/2007/09/a_big_victory_golan_v_gonzales.html
  • W. Patry, ‘Fair Use and Fair Abridgment’, 14 October 2005, available at: http://williampatry.blogspot.com/2005/10/fair-use-and-fair-abridgment.html


[1] T. I., Emerson, The System of Freedom of Expression, Random House Inc. Publishing 1970, page 3

[2] Ibid.

[3] Berne Convention (1886 as amended) Article 2(1)

[4] Ashdown v Telegraph Group Ltd, [2002] Ch. 149, 163

[5] R. C., Denicola, ‘Copyright and Free Speech: Constitutional Limitations on the Protection of Expression’, 67 CAL. L. REV. 283 (1979), M. B., Nimmer, ‘Does copyright abridge the First Amendment guarantees of freedom of speech and press’, 17 UCLA L. Rev. 1180 1969-1970, P., Goldstein, ‘Copyright and the First Amendment’, 70 Colum. L. Rev. 983, 1970

[6] R., Tushnet, ‘Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It’, Yale L.J. 535, 2004, 543

[7] E. M., Barendt, Freedom of speech, 2nd ed., Oxford: OUP, 2005, 252

 

[8] E. M., Barendt, Freedom of speech, 7-20

[9] R. C., Denicola, ‘Copyright and Free Speech’, 293

[10] E. M., Barendt, Freedom of speech, 248

[11] Such as the First Amendment to the US Constitution

[12] M D., Birnhack, ‘Copyright law and free speech after Eldred v Ashcroft’, 76 S. Cal. L. Rev. 1275 2002-2003, 1281

[13] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) 556, see M. B., Nimmer, ‘Does copyright abridge the First Amendment’, 1189-1193

[14] R., Tushnet, ‘Copy This Essay’, 543

[15] Perry, G. A., ‘Copyright and the First Amendment: Nurturing the Seeds for Harvest’, 65 Neb. L. Rev. 631 1986, 638

[16] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) 558, hereafter ‘Harper & Row

[17] Ibid.

[18] Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) 156

[19] Article I, Section 8, Clause 8, the United States Constitution

[20] Amendment I, Bill of Rights, the United States Constitution

[21] 17 USC § 107 – Limitations on exclusive rights: fair use, Copyright Act 1976

[22] Harper & Row v. Nation Enterprises, 560

[23] Ibid.

[24] 17 USC § 107 Copyright Act 1976

[25] P. B., Hugenholtz, ‘Copyright and Freedom of Expression in Europe’, R., Dreyfuss, et al (eds.), Expanding the Boundaries of Intellectual Property, Oxford: OUP 2001, 353

[26] Harper & Row v. Nation Enterprises, 566-67

[27] J. P., Bauer, ‘Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies?’, 67 Wash. & Lee L. Rev. 831 2010, 859

[28] Breard v. Alexandria, 341 U.S. 622 (1951) 642 (“We agree that the fact that periodicals are sold does not put them beyond the protection of the First Amendment.”) quoted in L. A. W., Lockridge, ‘The myth of copyright’s fair use doctrine as a protector of free speech’, 24 Santa Clara Computer & High Tech. L.J. 31 2007-2008, 78

[29] Harper & Row v. Nation Enterprises, the defendant in the case was a magazine

[30] Ibid., 562 quoting Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984) 451

[31] L. A. W., Lockridge, ‘The myth of copyright’s fair use doctrine as a protector of free speech’, 78

[32] Ibid.

[33] E. M., Barendt, Freedom of speech, 396

[34] Abend v. MCA, Inc., 863 F. 2d 1465 (9th Cir. 1988) 1479, quoted in Campbell v. Acuff-Rose Music, Inc., 578

[35] Bigelow v. Virginia, 421 U.S. 809 (1975) 821-822

[36] Ibid.

[37] L. A. W., Lockridge, ‘The myth of copyright’s fair use doctrine as a protector of free speech’, 78

[38] Harper & Row v. Nation Enterprises, 556

[39] Ibid., 557

[40] E. M., Barendt, Freedom of speech, 420

[41] G. A., Perry, ‘Copyright and the First Amendment’, 633

[42] J. P., Bauer, ‘Copyright and the First Amendment’, 861

[43] N. W., Netanel, Copyright’s Paradox, Oxford: OUP, 2008, 63

[44] P., Goldstein, ‘Copyright and the First Amendment’, 1010

[45] 17 USC § 107 Copyright Act

[46] N. W., Netanel, Copyright’s Paradox, 63

[47] Time, Inc. v. Bernard Geis Associates 293 F. Supp. 130

[48] Ibid., 146

[49] Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984) 478 (Blackmun, J., dissenting)

[50] Twentieth Century Music Corp. v. Aiken, 156

[51] Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) 526

[52] P. N., Leval, ‘Toward a Fair Use Standard’, 103 Harv. L. Rev. 1105 1989-1990, 1134

[53] Suntrust v. Houghton Mifflin Co., 252 F. 3d 1257 (11th Cir. 2001) hereafter ‘Suntrust

[54] Ibid. 1264

[55] Ibid. 1276

[56] N. W., Netanel, ‘Copyright and the First Amendment: What Eldred Misses – And Portends’, J. Griffiths and U., Suthersanen (eds.), Copyright and Free Speech – Comparative and International Analyses, Oxford: OUP, 2005, 148

[57] Suntrust v. Houghton Mifflin, 1277

[58] P. N., Leval, ‘Toward a Fair Use Standard’, 1118-1119

[59] Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984)

[60] Ibid., 426

[61] Mattel Inc. v Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003), hereafter Mattel Inc.

[62] Ibid., 803 quoted in Netanel, N. W., Copyright’s Paradox, 65

[63] Suntrust v. Houghton Mifflin, footnote 3

[64] Ibid., 1265

[65] N. W., Netanel, Copyright’s Paradox, 63

[66] J. P., Bauer, ‘Copyright and the First Amendment’, 854

[67] H., Jefferson Powell, D. L., Lange, No Law: Intellectual Property in the Image of an Absolute First Amendment, Stanford University Press, 2009, 123

[68] Eldred v. Ashcroft, 537 U.S. 186 (2003), hereafter ‘Eldred

[69] Hereafter ‘CTEA’

[70] Golan v. Holder, 565 U.S. ___ (2012) yet to be officially reported in the United States Reports available at: http://www.supremecourt.gov/opinions/11pdf/10-545.pdf, hereafter ‘Golan

[71] Hereafter ‘URAA’

[72] Eldred v. Ashcroft, 222, Golan v. Holder, Opinion 21

[73] A. E., Morrow, ‘Voting for progress: copyright and the role of the judiciary in Eldred v Ashcroft’, 44 Jurimetrics 465 2003-2004, 475

[74] “It is not our role to alter the delicate balance Congress has labored to achieve.” Eldred v. Ashcroft, 205 n. 10 citing Stewart v. Abend, 495 U.S. 207 (1990) 230

[75] J., Davids, ‘Eldred v Ashcroft: a Critical Analysis of the Supreme Court Decision’, DePaul-LCA J. Art & Ent. L. 173 2003, 182

[76] M. B., Nimmer, ‘Does copyright abridge the First Amendment’, 1200

[77] N. W., Netanel, ‘Copyright and the First Amendment: What Eldred Misses – And Portends’, 148

[78] M. B., ‘Nimmer, Does copyright abridge the First Amendment’, 1182

[79] Eldred v. Ashcroft, 245-246

[80] Copyright Clause

[81] Ibid.

[82] M D., Birnhack, ‘Copyright law and free speech after Eldred v Ashcroft’, 1296

[83] Eldred v. Ashcroft, 244

[84] Eldred v. Ashcroft, 264-266

[85] Ibid., 244

[86] Golan v. Holder, Breyer J., Dissenting,16

[87] Ibid.

[88] Pollack, M., ‘Dealing with Old Father William, or Moving from Constitutional Text to Constitutional Doctrine: Progress Clause Review of the Copyright term Extension Act’, 36 LOY. LA. L. REv. 337-358 (2002), 341-342

[89] Golan v. Holder, 15, Breyer J., Dissenting

[90] R. S. R., Kul, ‘Free Expression? Reconciling copyright and the First Amendment’, 57 Case W. Res. L. Rev. 863 2006-2007, 880-881

[91] J., Davids, ‘Eldred v Ashcroft: a Critical Analysis of the Supreme Court Decision’, 181

[92] R. L., Okediji, ‘Through the Years: the Supreme Court and the Copyright Clause’, 30 Wm. Mitchell L. Rev. 1633 2003-2004, 1649

[93] Ibid., 1640

[94] N. W., Netanel, Copyright’s Paradox, 172

[95] H., Jefferson Powell, D. L., Lange, No Law, 122

[96] Ashdown v Telegraph Group Ltd, [2002] Ch. 149, 167

[97] Ashdown v Telegraph Group Ltd, [2002] Ch. 149, hereafter ‘Ashdown

[98] Human Rights Act 1998 c. 42, hereafter ‘HRA 1998’

[99] Hereafter ‘ECHR’

[100] Article 10(1) ECHR

[101] M D., Birnhack, ‘Acknowledging the conflict between copyright law and freedom of expression under the Human Rights Act’, [2003] ENT. L. REV. 24, 32

[102] Ashdown v Telegraph Group Ltd, 167

[103] Ibid., 172

[104] Ibid., 163

[105] s 30(1) and (2), Copyright, Designs and Patents Act 1988 c. 48, hereafter ‘CDPA 1988’

[106] A. Brown, et al., Contemporary Intellectual Property: Law and Policy, OUP Oxford, 2 edition (2010), 172

[107] G., D’Agostino, ‘Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use’, 53 McGill L. J. 309 2008, 345

[108] According to the High Court in Ashdown there are no fewer than 42 circumstances in which copying does not constitute an actionable infringement of copyright under the CDPA, Ashdown v Telegraph Group Ltd, [2001] Ch. 685, 689

[109] H., Laddie, et al, The Modern Law of Copyright and Designs, Butterworths Law, 3rd ed. (2000)

[110] Ashdown v Telegraph Group Ltd, 173, quoting H. Laddie., The Modern Law of Copyright and Designs, para 20.16

[111] Ashdown v Telegraph Group Ltd, 173

[112] Fressoz and Roire v France, 21 Jan. 1999 (No. 29183/95) 31 E.H.R.R. 2

[113] Ashdown v Telegraph Group Ltd, 166

[114] Ibid., 174

[115] Hereafter ‘ECtHR’

[116] Fressoz and Roire v France, 58

[117] Ibid., 57

[118] Ibid., 60

[119] Lion Laboratories Ltd v Evans, [1985] Q.B. 526

[120] Ibid., 544

[121] K., Garnett, ‘The Impact of the Human Rights Act 1998 on UK Copyright Law’, J. Griffiths and U., Suthersanen, Copyright and Free Speech, 202

[122] Ibid., 544

[123] Lion Laboratories Ltd v Evans, 553

[124] Ibid., 175

[125] Ibid., 174

[126] Ashdown v Telegraph Group Ltd, [2001] Ch. 685, 699

[127] Ibid.

[128] A., Sims, ‘Strange bedfellows: fair dealing and freedom of expression in New Zealand’, E.I.P.R. 2011, 33(8), 490-498, 496

[129] J., Griffiths, ‘Copyright Law and the Public’s Right to Receive Information: Recent Developments in an Isolated Community’, E. M., Barendt and A., Firth, ed., The Yearbook of Media and Entertainment Law 2002, 29 (Oxford: OUP 2002), 35

[130] Fressoz and Roire v France, 21 Jan. 1999 (No. 29183/95) 31 E.H.R.R. 2, Radio Twist v Slovakia, 19 Dec. 2006 (No. 62202/00) 22 B.H.R.C. 396, Dupuis v France, 7 Jun. 2002 (No. 1914/02) 47 E.H.R.R. 52

[131] Guja v Moldova, 12 Feb. 2008  (No. 14277/04) 53 E.H.R.R. 16

[132] Ibid., 554

[133] M. B., Nimmer, ‘Does copyright abridge the First Amendment’, 1183

[134] J. P., Bauer, ‘Copyright and the First Amendment’, 854-855

[135] R., Tushnet, ‘Copy This Essay’, 545

[136] J., Griffiths, ‘Copyright law after Ashdown – time to deal fairly with the public’, I.P.Q. 2002, 3, 240-264, 254

[137] J., Griffiths, ‘Copyright law after Ashdown’, 256

[138] G., D’Agostino, ‘Healing Fair Dealing?’, 357

[139] J., Griffiths, ‘Copyright law after Ashdown’, 250-251

[140] Ashdown v Telegraph Group Ltd, 174

[141] J., Griffiths, ‘Copyright Law and the Public’s Right to Receive Information’, 41

[142] A., Sims, ‘Strange bedfellows’, 496

[143] Castells v Spain, 23 Apr. 1992 (No. A/236) 14 E.H.R.R. 445, 476, para 43

[144] Wingrove v United Kingdom, 1 Jan. 1994 (No. 17419/90) 18 E.H.R.R. and Bladet Tromsí v Norway, 20 May 1999 (No. 21980/93) 29 E.H.R.R. 125

[145] Campbell v MGN Ltd, [2004] 2 A.C. 457, 499

[146] F., MacMillan Patfield, ‘Towards a Reconciliation of Free Speech and Copyright’, E. M., Barendt, The Yearbook of Media and Entertainment Law 1996, 199 (Oxford: OUP 1996), 209

[147] J., Griffiths, ‘Copyright law after Ashdown’, 252

[148] Time Warner Entertainments Co LP v Channel Four Television Corp Plc, [1994] E.M.L.R. 1

[149] Ibid., 16

[150] F., MacMillan Patfield, ‘Towards a Reconciliation of Free Speech and Copyright’, 229

[151] The Secretary of State for the Home Department v Central Broadcasting Limited and Another, [1993] E.M.L.R. 253, 271

[152] Ibid., 274

[153] Ibid.

[154] M D., ‘Birnhack, Acknowledging the conflict’, 33

[155] H., Fenwick, G., Phillipson, Media Freedom under the Human Rights Act, Oxford: OUP, 1st edition, 2006, 883

[156] J., Griffiths, ‘Copyright Law and the Public’s Right to Receive Information’, 37

[157] M., Sayal, ‘Copyright and freedom of the media: a balancing exercise?’, Ent. L.R. 1995, 6(7), 263-275, 263

[158] Jack Straw MP, HC Deb 16 February 1998, col 777 Back, available at: http://hansard.millbanksystems.com/commons/1998/feb/16/human-rights-bill-lords

[159] HRA 1998, s 2(1), s 3(1)

[160] C. J., Angelopoulos, ‘Freedom of expression and copyright: the double balancing act’, I.P.Q. 2008, 3, 328-353, 353

[161] Ashdown v Telegraph Group Ltd, 162

[162] J., Hennigan, ‘Alleged confidentiality – freedom of expression’, Ent. L.R. 2004, 15(7), 232

[163] D., Voorhoof, European Media Law: Collection of Materials 2010-2011, Ghent, Knops Publishing, 2010, 318

[164] Douglas v Hello! Ltd, [2001] 1 QB 967, 1004

[165] Re s (A Child), [2005] 1 A.C. 593, 603

[166] Ibid

[167] Ibid

[168] Douglas v Hello! Ltd, 1003

[169] Ashdown v Telegraph Group Ltd, 161-162

[170] J., Griffiths, Copyright law after Ashdown, 247

[171] Ashdown v Telegraph Group Ltd, 165

[172] M D., Birnhack, ‘Acknowledging the conflict’, 32

[173] M D., Birnhack, ‘Acknowledging the conflict’, 28

[174] Grisbrook v MGN Ltd, [2009] Official Transcript Case No: CH 1998 G No. 3299

[175] Ibid., para. 71

[176] Ibid.

[177] HRH Prince of Wales v Associated Newspapers Ltd, [2008] Ch. 57

[178] Ibid., 101

[179] P. B., Hugenholtz, ‘Copyright and Freedom of Expression in Europe’, R., Dreyfuss, et al (eds.), Expanding the Boundaries of Intellectual Property, 362

[180] ITP SA v Coflexip Stena Offshore Ltd, 2004 S.L.T. 1285

[181] Ibid., 1290, in reference to s 3 of the HRA 1998

[182] Starting with the Green Paper on Copyright & the Challenge of Technology – Copyright Issues Requiring Immediate Action, COM/88/172, 1988

[183] Directive 2001/29/EC on Copyright and Related Rights in the Information Society [2001] OJ L1767/10, hereafter ‘the Directive’

[184] Ibid., Recital 32

[185] Ibid., Article 5(5)

[186] Ibid., Recital 4

[187] (C-5/08) Infopaq International A/S v Danske Dagblades Forening, [2012] Bus. L.R. 102, hereafter ‘Infopaq

[188] Ibid, 110

[189] J., Griffiths, ‘Infopaq, BSA and the “Europeanisation” of United Kingdom copyright law’, [(March 4, 2011). Media & Arts Law Review, Vol. 16, 2011, page 4 available at SSRN: http://ssrn.com/abstract=1777027

[190] Pro Sieben Media AG v Carlton UK Television Ltd, [1999] 1 W.L.R. 605, 614

[191] R., Deazley, ‘Copyright and parody: taking backward the Gowers Review?’, M.L.R. 2010, 73(5), 785-807, 790

[192] J., Griffiths, ‘Infopaq, BSA and the “Europeanisation” of United Kingdom copyright law’, 4

[193] Ibid., 4

[194] Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others, [2012] Bus. L.R. 53, 78

[195] Blackstone Chambers, News, Cases: Meltwater Holding BV v The Newspaper Licensing Agency Ltd, 12 February 2012, available at:

http://www.blackstonechambers.com/news/cases/meltwater_holding_bv.html

[196] Intellectual Property Minister Baroness Wilcox quoted at News Distribution Service for Government and the Public Sector, 4 November 2010, available at: http://nds.coi.gov.uk/content/Detail.aspx?ReleaseID=416370&NewsAreaID=2

[197] Information Society Directive, Article 5(3)(k)

[198] R., Deazley, ‘Copyright and parody: taking backward the Gowers Review?’, 806

[199] Ibid.

[200] BBC News, ‘UK copyright laws to be reviewed, announces Cameron’, BBC News, 4 November 2010, available at: http://www.bbc.co.uk/news/uk-politics-11695416

[201] I., Hargreaves, 2011. ‘Digital Opportunity: A Review of Intellectual Property and Growth’. London: Intellectual Property Office. Available at: http://www.ipo.gov.uk/ipreview, hereafter ‘Hargreaves Review’

[202] Ibid., page 51

[203] HM Government. 2011. ‘The Government Response to the Hargreaves Review of Intellectual Property and Growth’. UK: Intellectual Property Office. Available at: http://www.ipo.gov.uk/ipresponse.htm

[204] HM Government. 2011. ‘Consultation on Copyright’. UK: Intellectual Property Office. Available at: http://www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-copyright.htm

[205] Ibid., page 57 – 7.9

[206] Ibid., page 58 – 7.13

[207] Ibid., page 85 – 7.106

[208] Ibid., page 85 – 7.107

[209] Ibid., page 86 – 7.115

[210] Ibid., page 1

[211] R., Tushnet, ‘Copy This Essay’, 561-562

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