In the last chapter it was seen that the statutory provisions relating to activities such as criticism, review and news reporting are inadequate to safeguard freedom of expression or freedom of information. It is therefore important to consider whether these provisions might be supplemented by a ‘common law’ public interest defence, that is, a defence sitting outwith the statutory regime that would justify the publication of copyright material in certain circumstances. This question is complicated by the fact that two recent Court of Appeal cases reached different conclusions as to whether a public interest defence to actions for infringement of copyright exists at all in the United Kingdom, and even the case that accepted that such a defence does exist indicated that its scope is more limited than earlier authorities had seemed to suggest.

This chapter begins by considering the scope of this defence as it had apparently been established prior to the recent decisions of the Court of Appeal. Our aim in this section is to demonstrate that whilst these earlier authorities indicated (quite rightly) that the public interest defence is relatively limited in scope, in its early form the public interest defence added a degree of flexibility to the statutory scheme. In particular, in its early form the public interest defence provided an important additional safeguard in cases where the user was seeking to place evidence contained in an unpublished work into the public domain.