1. Notably, for example, Laddie, Hil etal The Modern Law of Copyright and Designs (London: Butterworths, 2nd edn, 1995) pp 126–131 [although cf 4th edn (London: LexisNexis, 2011) 3.166, 21.20]Google Scholar. See also Hyde Park v Yelland [2000] 3 Wlr 215 (CA), discussed further below.

2. Ashdown v Telegraph Group Ltd [2002] Ch 149 (CA).

3. Ibid, at [58].

4. See eg Bently, L and Sherman, B Intellectual Property Law (Oxford: Oxford University Press, 3rd edn, 2009) pp 219, 221;Google Scholar MacQueen, H etal Contemporary Intellectual Property: Law & Policy (Oxford: Oxford University Press, 2nd edn, 2011) 5.47;Google Scholar Burrell, R and Coleman, A Copyright Exceptions: The Digital Impact (Cambridge: Cambridge University Press, 2005) p 94;CrossRefGoogle Scholar A Sims ‘The public interest defence in copyright law: myth or reality’ [2006] EIPR 335, 335; Laddie, Hil, Prescott, P and Vitoria, M The Modern Law of Copyright & Designs (London: LexisNexis, 4th edn, 2011) 3.166 [willing to venture only that ‘… by virtue of s 171(3) of the CDPA 1988, certain common law exceptions to protection may continue to exist’ (emphasis added)], 21.20 (public interest defence ‘of uncertain scope’).Google Scholar See also the cases discussed at C below.

5. On breach of confidence, see eg Campbell v MGN Ltd [2004] Ukhl 22. For a recent example of this trend in the law of defamation, see Flood v Times Newspapers [2012] Uksc 11.

6. At and around the time of the decisions in Hyde Park and Ashdown, the defence attracted significant scholarly attention. In the intervening years, interest appears to have diminished.

7. The history of the defence has been described in detail by others. See eg Burrell and Coleman, above 5, p 94; R Burrell ‘Defending the public interest’ [2000] Eipr 394; Sims, above 5, at 335.

8. See Gartside v Outram [1857] 26 LJ Ch 113,114 (per Wood VC). For discussion, see A Sims ‘The denial of copyright protection on public policy grounds’ [2008] Eipr 189; Alexander, I Copyright Law and the Public Interest in the Nineteenth Century (Oxford: Hart Publishing, 2010) 63–79;Google Scholar Alexander, I ‘The Lord Chancellor, the poets and the courtesan: public morality and copyright law in the early nineteenth century’ in Lewis, A, Brand, P and Mitchell, P (eds) Law in the City, Proceedings of the Seventeenth British Legal History Conference 2005 (Dublin: Four Courts Press, 2007);Google Scholar J Phillips ‘“Copyright in obscene works”: some British and American problems’ [1977] Anglo Am L Rev 138; O Morgan ‘Copyright, the public interest and content restrictions’ [2003] Media & Arts L Rev 213; Bently and Sherman, above 5, pp 117–118; Garnett, K etal Copinger & Skone James on Copyright (London: Sweet & Maxwell, 16th edn, 2011), 3-304–3-308;Google Scholar Laddie etal, above 5, 21.23–21.30.

9. Southey v Sherwood (1817) 2 Mer 435.

10. Wright v Tallis (1845) 1 Cb 893; Slingsby v Bradford Patent Truck Co [1905] Wn 122; [1906] WN 51.

11. Stockdale v Onwhyn (1826) 5 B & C 173; Glyn v Weston Feature Film Co Ltd [1916] 1 Ch 261. For discussion of such ‘works offending public sensibilities’, see Laddie etal, above 5, 21.23–21.25.

12. Attorney General v Guardian Newspapers (No 2) [1990] 1 Ac 109 (HL), 294 (per Lord Jauncey); 275–276 (per Lord Griffiths). The principle of non-enforcement of copyright in ‘wrongful’ copyright works must now be considered in the light of the ruling of the WTO Panel in US v China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights (WT/DS362/R, 2009). The panel held that a provision of Chinese copyright law under which copyright was denied to works failing a censorship review contravened Art 9(1) of the TRIPS Agreement (incorporating Art 5(1) of the Berne Convention). Article 5(1) of the Berne Convention specifies that: ‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.’

13. For a recent example of its apparent application, see R Greenslade ‘Reading Post wins photo copyright case’ (2012) The Guardian Online, 29 January, available at http://www.guardian.co.uk/media/greenslade/2010/jan/29/reading-post-photo-copyright (accessed 1 February 2013).

14. For an implicit indication that the threshold for the application of the principle is relatively high, see Golden Eye (International) Ltd v Telefónica UK Ltd [2012] Ewhc 723 (Ch) and Delves-Broughton v House of Harlot Ltd Ewpcc 29.

15. Some courts have taken the view that copyright does not exist in such works. Others have held that, although copyright subsists, it cannot be enforced. For discussion, see Bently and Sherman, above 5, pp 117–118; Sims, above 9, at 189, 194; Garnett etal, above 9, 3-304 [‘The 1988 Act accords copyright to the works described in s. 1(1) which meet the requirement for subsistence of copyright set out in s 153 and c. IX of the Act, discussed above. Nowhere in the 1988 Act is the existence of that right qualified by considerations such as public policy, which do not, therefore, affect the question of the subsistence of copyright in a work. Thus, copyright will subsist in a work which otherwise satisfies the requirements of the Act, even though the work may be considered by some to be libellous, immoral, obscene, scandalous, irreligious, to involve deception of the public or where its exploitation would otherwise be contrary to public policy’ (footnote omitted)]. Note, however, that the principle is discussed as though it were an exception, or affirmative defence, in Laddie etal, above 5, 21.21–21.30.

16. See eg Initial Services v Putterill [1968] 1 Qb 396 (per Lord Denning, 405); Fraser v Evans [1969] 1 Qb 349.

17. Some have described the decision of Ungoed-Thomas J in Beloff v Pressdram [1973] 1 All Er 241 as the genesis of the broader public interest defence (see eg Hyde Park Residence Ltd v Yelland [1999] Emlr 654, 666 (per Jacob J); Burrell, above 8, at 401; Sims, above 9, at 189,189; Garnett etal, above 9, 3-304. Ungoed-Thomas J does indeed describe a ‘public interest defence’ in copyright law that is closely related to the public interest defence in breach of confidence [‘… public interest is a defence outside and independent of statutes, is not limited to copyright cases and is based on a general principle of common law’ (at 259)]. However, in that case, he limited the operation of the defence to situations of ‘wrongdoing’ (‘… public interest, as a defence in law, operates to override the rights of the individual (including copyright) which would otherwise prevail and which the law is also concerned to protect, such public interest, as now recognised by the law, does not extend beyond misdeeds of a serious nature and importance to the country and thus, in my view, clearly recognisable as such …’). The principle described in Beloff thus appear to occupy middle ground between the principle that copyright will not be enforced in ‘iniquitous’ works and the fully fledged form of the public interest defence traced in Lion Laboratories v Evans and Ashdown. As such, it seems likely to have played an important role in the development of the broader defence – even if Ungoed-Thomas's reliance on the decisions of the Court of Appeal in Hubbard v Vosper [1972] 2 Qb 84 and Initial Services v Putterill, above 17, is difficult to justify.

18. [1985] QB 526.

19. Ibid, at 536 (per Stephenson LJ).

20. Ibid, at 546 (per Stephenson LJ).

21. Ibid, at 550. See also ‘The courts will restrain breaches of confidence and breaches of copyright, unless there is just cause or excuse for breaking confidence or infringing copyright’ (536, per Stephenson LJ).

22. Ibid, at 537 (per Stephenson LJ 537).

23. At some points, for example, it is not entirely clear whether all members of the Court viewed the ‘public interest’ defence as a complete defence at common law or simply as an application of its inherent discretion to refuse an injunction (see, in particular, the judgment of O'Connor LJ at 546–549). Also, as has been noted subsequently, the authorities relied upon by the Court to support its conclusion that the public interest defence also applied in copyright were cases on breach of confidence and, accordingly, offer only dubious support for such a proposition. For an example of similar uncertainty (in the case of breach of confidence) in Ireland, see National Irish Bank Limited and National Irish Bank Financial Services Limited v Radio Telefís Éireann [1998] 2 Ir 565 (Supreme Court, Ireland).

24. Copyright Act 1956.

25. Although not universally: see Laddie, etal, above 2, pp 126–131 [although cf 4th edn (London: LexisNexis, 2011) 3.166, 21.20].Google Scholar

26. For discussion, see Burrell, above 8, at 403; Dworkin, G ‘Judicial control of copyright on public policy grounds’ in Kabel, J and Mom, G (eds) Intellectual Property & Information Law (Dordrecht: Kluwer, 1998), pp 137–148, 142;Google Scholar Dworkin, G and Taylor, R Blackstone's Guide to the Copyright Designs & Patents Act 1988 (London: Blackstone Press, 1989) pp 81–82;Google Scholar Bently and Sherman, above 5, p 219, n 143; RA Yurkowski ‘Is Hyde Park hiding the truth? an analysis of the public interest defence to copyright infringement’ (2001) 32 Victoria U Wellington L Rev 1053.

27. See eg Beggars Banquet Records Ltd v Carlton Television Limited [1993] Emlr 349 (although no sharp distinction was drawn in the case between the public interest defence and the court's discretion to refuse an injunction in the public interest); PCR Ltd v Dow Jones Telerate Ltd [1998] Emlr 407; Service Corporation International plc v Channel Four Television Corporation [1999] Emlr 83. Note also that, in Canon Kabushiki Kaisha v Green Cartridge Co (Hong Kong) Ltd [1997] Ac 728 [1997] AC 728, 737, the Privy Council explained the ‘non-derogation from grant’ defence applied in British Leyland v Armstrong Patents [1986] Rpc 279 (HL) as an application of the public interest doctrine (see Mars UK Ltd v Tecknowledge Ltd [2000] Fsr 138). It has also been suggested that certain obiter statements in Attorney General v Guardian Newspapers (No 2), above 13, confirm the existence of the broader public interest defence in copyright law (see Hyde Park Residence Ltd v Yelland, above 18, 665–673 per Jacob J).

28. [1999] EMLR 654.

29. It had not strictly been necessary for him to come to a conclusion on the public interest claim because he had already concluded that the defendant's activities were covered by the statutory ‘fair dealing’ exceptions.

30. [2000] 3 WLR 215. For discussion of the judgment of the Court of Appeal, see Burrell, above 8; Burrell and Coleman, above 5, pp 91–112; Yurkowski, above 27.

31. His judgment is clearly influenced by the assessment of the validity of the broader public interest defence advanced in Laddie etal, above 2, pp 126–131 (see now, however, Laddie etal, above 5, 21.20–21.30).

32. [2000] 3 WLR 215 [64]. The implausibility of this position was exposed by Robert Burrell, above 8, 401.

33. [2000] 3 WLR 215 [66].

34. He also held that it was necessary to distinguish between copyright and breach of confidence because (i) copyright protected only form, and not underlying facts or ideas, and (ii) international copyright treaties did not permit the maintenance of a broad ‘public interest’ principle. Note that the distinction between the two causes of action on the ground that copyright is a property right and a claim to confidentiality is not is drawn into question by recent decisions in which it has been held that a claim to breach of confidence is covered by Art 1 of the First Protocol of the European Convention on Human Rights ([42]–[67]).

35. [2000] 3 WLR 215 [69]–[83].

36. Ashdown v Telegraph Group Ltd, above 3.

37. CDPA 1988, s 30.

38. He did not consider Hyde Park to be binding on the Court on this issue because the discussion of the proper boundaries of the public interest defence did not form part of the ratio of that case.

39. In other Commonwealth jurisdictions, the status of the defence remains even more precarious. Consider, in particular, the views strongly expressed by Gummow J in the Federal Court of Australia in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] Aipc 90-409 and Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 17 Ipr 545. It has, however, been suggested that these views may not necessarily be followed in a case in which public interest claims were made in proceedings for copyright infringement in future. See Ricketson, S The Law of Intellectual Property: Copyright, Designs & Confidential Information (Thomson Reuters, looseleaf, 2001) [11.635].Google Scholar

40. For criticism of this aspect of the decision, see M Birnhack ‘Acknowledging the conflict between copyright law and freedom of expression under the Human Rights Act’ [2003] Ent Lr 24; J Griffiths ‘Copyright law after Ashdown – time to deal fairly with the public’ [2002] Ipq 242.

41. [2002] Ch 149 (CA) [59]. Lord Phillips MR gave an indication of a situation in which such circumstances might arise: ‘… [I]t is possible to conceive of information of the greatest public interest relating not to a current event, but to a document produced in the past. We are not aware of any provision of the 1988 Act which would permit publication in such circumstances, unless the mere fact of publication, and any controversy created by the disclosure, is sufficient to make them “current events”. This will often be a “bootstraps” argument of little merit, but on other occasions (such as disclosure by the Public Record Office under the 30-year rule) it may have a more solid basis.’ [44]

42. Bently and Sherman, above 5, pp 219, 221.

43. Burrell and Coleman, above 5, p 94.

44. The ambiguity surrounding the defence is only heightened by the uncertain relationship of authority between the three judgments of the Court of Appeal in Lion Laboratories, Hyde Park and Ashdown, and by the questionable application of authority on breach of confidence in early cases such as Beloff and Lion Laboratories. However, the editors of Copinger consider the HRA to have resolved such problems: see Garnett etal, above 9, pp 21–93.

45. Directive 2001 on the harmonisation of certain aspects of copyright and related rights in the information society of the European Parliament and of the Council of 22 May 2001/2. The Directive was implemented in the UK by means of the Copyright and Related Rights Regulations 2003 (SI 2003/2498).

46. Arts 2–4.

47. Art 5(1) requires Member States to provide for an exception for certain temporary acts of reproduction carried out as a result of technological process Arts 5(2)–(4) set out a list of exceptions and limitations that Member States may choose to adopt in relation to the reproduction right (Art 5(2)), the reproduction right and the right of communication to the public/making available to the public (Art 5(3)) and the distribution right (Art 5(4)).

48. Although, where implemented, exceptions in domestic law will have to be interpreted in accordance with the terms of Art 5. See Forensic Telecommunications Services Ltd v Chief Constable of West Yorkshire Police [2011] Ewhc 2892 (Ch).

49. Although, see the limited subsidiarity permissible under Art 5(3)(o). The system of regulation applied to copyright exceptions and limitations in the European acquis is complex. The Software Directive and the Database Directive contain special rules governing the exceptions and limitations applicable in situations concerning those particular forms of work. Directive 2009/24/EC of the European Parliament and of the Council on the legal protection of computer programs (‘Software Directive’), Arts 5 and 6; Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (‘Database Directive’), Art 6; Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright (‘Rental Right Directive’), Art 10. The Rental Right Directive delimits the scope of the permissible exceptions and limitations in the case of certain of the exclusive rights granted to related right-holders.

50. Burrell and Coleman, above 5, p 107.

51. Cornish, etal Intellectual Property (London: Sweet & Maxwell, 7th edn, 2010) pp 567–568 also question the compatibility of the public interest defence with the Information Society Directive and suggest that Art 5(3)(o) may justify its retention.Google Scholar

52. P Johnson ‘The public interest: is it still a defence to copyright infringement?’ [2005] Entertainment L Rev 1. See also Laddie etal, above 5, 21.20. Support for this position can be drawn from Recital 3 of the Directive.

53. Burrell and Coleman, above 5, pp 107–108 (although cf Laddie etal, above 5, 21.20).

54. Ibid.

55. Ashdown v Telegraph Group Ltd, above 3.

56. See eg Berne Convention, Art 9(2); TRIPS, Art 13; WIPO Copyright Treaty, Art 10; WIPO Performances and Phonograms Treaty, Art 16.

57. See Software Directive, Art 6(3); Rental Right Directive, Art 10(3); Database Directive, Art 6(3).

58. See (C-5/08) Infopaq International A/S v Danske Dagblades Forening [2009] Ecdr 16 [58]; (C-462/09) Stichting de Thuiskopie, 16 June 2011; (C-145/10) Eva-Maria Painer, 1 December 2011 [100]–[116], [129]–[149]. Although cf (C-302/10) Infopaq International AS v Danske Daglades Forening (‘Infopaq II’) [55]–[57].

59. ‘[T]here is no need to identify explicitly each and every possible situation to which the exception could apply, provided that the scope of the exception is known and particularised. This guarantees a sufficient degree of legal certainty’ (United States – Section 110(5) of the US Copyright Act (WT/DS160/R, para 6.108)).

60. Ashdown v Telegraph Group Ltd, above 3 (CA, per Lord Phillips of Worth Matravers MR), approving a statement in the earlier case of Hyde Park v Yelland, above 2, para 55.

61. Ricketson, S WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment SCCR/9/7 (Geneva: WIPO, 2003) p 75.Google Scholar Ricketson also suggests, although perhaps with less force, that courts' failure to award compensation to right-holders on applying the ‘public interest’ defence may violate the third ‘step’ of the ‘test’ as an unreasonable prejudice to right-holders' interests.

62. See J Griffiths ‘The “three-step test” in European copyright law: problems and solutions’ [2009] Ipq 428.

63. See eg C Geiger etal ‘Opinion – towards a balanced interpretation of the “three-step test” in copyright law’ [2008] Eipr 489; C Geiger ‘The role of the three-step test in the adaptation of copyright law to the information society’ (2007) Unesco Copyright e.Bulletin, January–March, 1, 6.

64. Senftleben, M Copyright, Limitations and the Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law (Dordrecht: Kluwer Law International, 2004) pp 133–137.Google Scholar

65. For discussion of this process, see C Handig ‘Infopaq International a/S v Danske Dagblades Forening: is the term “work” of the Cdpa 1988 in line with the European Directives?’ [2010] Eipr 53; E Derclaye, ‘Infopaq International a/S v Danske Dagblades Forening: wonderful or worrisome? the impact of the Ecj ruling in Infopaq on Uk copyright law’ [2010] Eipr 247; J Griffiths ‘Infopaq, Bsa and the “Europeanisation” of United Kingdom copyright law’ [2011] Malr 59.

66. Note also HMSO v Green Amps [2007] EWHC 2755 (Ch), in which the defendant argued that it should not be liable for infringement of copyright because, inter alia, its use of the work at issue assisted in the fight against global warming. This claim was not explicitly described as falling within s 171(3) and was given short shrift by the judge (N Strauss QC). In a discussion of the case, it has however been suggested that the public interest defence might in future perform a valuable role in reconciling copyright law with regulations designed to protect the environment: ‘… [I]n Ashdown v Telegraph Group Ltd, the Court of Appeal left the notion of public interest (albeit only slightly) open. Therefore, by analogy with the potential conflicts between copyright and human rights, a defendant may want to use this section if for instance an environmental statute or a higher environmental norm (e.g. a directive, a regulation, Art 2 of the EC Treaty or an international convention) clashes with copyright law or for that matter any other intellectual property right. In the case at hand, Green Amps' general argument obviously did not convince the court. However, such more elaborated discourse may convince a court in future, in view of the international and European obligations of the United Kingdom in the environmental area and more general pressing moral needs. If the argument convinces the courts, fine tuning will be necessary so that incentives to create copyright works are not annihilated. Maybe s.171(3) has a brighter future than can be thought …’ (E Derclaye ‘Of maps, Crown copyright, research and the environment’ [2008] EIPR 162, 164)

67. HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522, [2006] ECDR 20 (Ch); [2008] Ch 57 (CA).

68. [2006] EWHC 522, [2006] ECDR 20 (Ch) [180].

69. This argument was supported by reference to Barendt, E Freedom of Speech (Oxford: Oxford University Press, 2nd edn, 2005) p 262 (see [2006] ECDR 20 (Ch) [181]).Google Scholar

70. [2008] Ch 57 (CA) [82]–[83].

71. Ibid, at [82].

72. The ‘abuse of right’ doctrine has been applied to prevent the reliance upon a right to secure advantages that are manifestly contrary to the purposes of the grant of that right. In some jurisdictions, the doctrine has been applied as a constraint upon the exercise of a copyright interest. For discussion, see Goldstein, P and Hugenholtz, B International Copyright (Oxford: Oxford University Press, 2nd edn, 2010) pp 391–392.Google Scholar In EU law, the concept of abuse of rights has been acknowledged (see eg (C-255/02) Halifax Plc v Customs and Excise Comrs). For discussion, also see the Opinion of AG in (C-482/09) Budějovický Budvar, národní podnik v Anheuser-Busch Inc. [2012] Rpc 11 [118]–[123]. The Supreme Court has recently considered, and rejected, the application of the doctrine in a case concerning the parallel import of goods protected by trade mark law (see Oracle America Inc v M-Tech Data Limited [2012] Uksc 27 [33]–[35]).

73. [2009] EWHC 2520 Ch (Patten LJ) [68]–[71]. On appeal, Patten LJ's judgment was upheld without discussion of s 171(3). [2010] EWCA Civ 1399, [2011] ECDR 4.

74. [2006] EWHC 1678 (Ch) (R Arnold QC).

75. [2010] FSR 33 (Ch) (Arnold J).

76. [2012] HCJ 10 (Lord Woolman) (High Court of Justiciary, Scotland).

77. It claimed that in making available the archive of historic pictures, it served the public's right to receive information protected under Art 10 ECHR.

78. [2009] EWHC 2520 [68]–[69].

79. Ibid, at [71].

80. As he then was.

81. [2006] EWHC 1678 [175].

82. Hyde Park Residence Ltd v Yelland [2001] Ch 143 (CA) [66].

83. Since Lion Laboratories, the relationship between the public interest defence and the statutory permitted acts has been rather ambiguous. In that case, there was no discussion of the statutory fair dealing exceptions even though they could conceivably have applied on the facts. For criticism of the Court of Appeal's judgment on this ground, see Hyde Park v Yelland, above 2, at [81].

84. [2012] HCJ 10 [26].

85. Ashdown was cited at this point in the judgment: ibid, at [25].

86. In a case such as this, which has implications for the right to freedom of expression, an applicant must demonstrate that it will probably succeed at a trial in order to obtain injunctive relief (HRA, s 12(3) as interpreted in Cream Holdings Ltd v Banerjee [2005] Ac 253).

87. [2010] FSR 33 [18].

88. In the context of copyright, the concept of ‘pre-emption’ is most frequently associated with US law. Under s 301 of the US Copyright Act, all state rules that are equivalent to copyright and fall within the scope of federal copyright law are pre-empted by the statute. For discussion, see Nimmer, Mb and Nimmer, D Nimmer on Copyright (New York: Matthew Bender) § 1.01.Google Scholar

89. Ashdown v Telegraph Group Ltd, above 3, at [38]–[46]. On this issue, the Court of Appeal reversed the judgment of the Vice-Chancellor, who had held that the balance of rights required under the HRA was satisfied by the overall scheme of the CDPA (see [2001] Ch 685).

90. HRA, s 3.

91. HRA, s 4.

92. [1985] QB 526, 547.

93. The interests at stake may not be identical where the rights to bring proceedings in copyright law and breach of confidence are in different hands. See, for example, the conflict concerning ownership of copyright in Service Corp International v Channel 4, above 28.

94. At first instance in Hyde Park, Jacob J aptly described the form of work at issue in such cases as ‘information clothed in copyright’ (Hyde Park Residence Ltd v Yelland, above 18, at 673).

95. [1999] EMLR 83.

96. Ibid, at 91.

97. Viewed in this way, the public interest defence can be distinguished from ‘fair use’, another ‘flexible’ defence to copyright infringement. See Copyright Act 1976 (US), s 107. The desirability of incorporating an equivalent fair use defence within European copyright law has been discussed recently. See eg SenftlebenM ‘Bridging the differences between copyright's legal traditions – the emerging Ec fair use doctrine’ [2010] J Copyright Soc'y Usa 521; HugenholtzPb and SenftlebenM ‘Fair use in Europe; in search of flexibilities’, Amsterdam Law School Research Paper 2012-39, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2013239 (accessed 1 February 2013); GriffithsJ ‘Unsticking the centre-piece – the liberation of European copyright law’ [2010] J Intell Prop, Inform Tech & e-Commerce L 29.

98. It may even be suggested that Art 9 of the Information Society Directive, which provides a non-exhaustive list of legal doctrines to which the Directive is said to be ‘without prejudice’, establishes the concept of ‘pre-emption’ within the acquis in broad terms.

99. Such ‘rare’ situations might include the publication of a photograph of vital public importance in the course of news reporting (photographs are explicitly excluded from the scope of the exception covering fair dealing for the purpose of reporting current events (CDPA, s 30(2)) or the dissemination of a previously unpublished document for the purpose of criticism or review (the exception covering fair dealing for the purpose of criticism or review of a work will only apply where the work that is used has previously been made available to the public (CDPA, s 30(1)-(1A)).

100. In other jurisdictions within the EU, courts have sometimes been willing to adjust the operation of copyright law directly by reference to the fundamental right to freedom of expression (see eg Church of Spiritual Technology v Dataweb BV [2004] Ecdr 25 (the Netherlands); Plon SA v Hugo [2007] ECDR 9 (France)).

101. TEU, Art 6(1).

102. ‘1. Everyone 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. 2. The freedom and pluralism of the media shall be respected.’

103. It would not be prevented from doing so by Protocol (No 30) of the Charter of Fundamental Rights of the EU. Copyright law falls clearly within the scope of EU law and, as clarified by the Court of Justice, Protocol 30 simply explains Art 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the UK from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions. See (C-411/10 and C-493/10) NS v Secretary of State for the Home Department [2012] 2 Cmlr 9.

104. See (C-70/10) Scarlet Extended SA v SABAM [2012] Ecdr 4 (CJ); SABAM v Netlog (C-360/10) [2012] Cmlr 18; (C-277/10) Luksan v van der Let, 9 February 2012 (CJ), not yet reported.

105. Even before Ashdown, such norms were capable of imposing unmediated external constraints on the operation of copyright law. See eg (C-337/95) Parfums Christian Dior v Evora [1998] Rpc 166 (freedom of movement of goods), (C-403 & 429/08) Football Association Premier League v QC Leisure [2012] 1 Cmlr 29 (freedom to provide services); RTE & ITP v EC Commission (C-241 & 242/91) [1995] Ecr 808 (competition).

106. The necessary approach to ‘balancing’ the rights protected by Arts 8 and 10 of the ECHR was set out by Lord Steyn in Re S (A Child) [2005] 1 AC 593 (HL): ‘First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.’ [17]

107. In assessing the ‘fair balance’, a court will be required to take into account the fact that copyright is protected as a property right under the EU Charter Art 17 and the Art 1 ECHR, Protocol 1. For confirmation that copyright is a protected ‘possession’ for the purposes of this fundamental right, see Charter Art 17(2); (C-275/06) Promusicae v Telefónica de España SAU [2008] Ecr I-271 [68]; (C-70/10) Scarlet Extended SA v SABAM, above 105, at [43]; (C-277/10) Luksan v van der Let, above 105, at [68]–[70].

108. Consider, for example, the facts of HRH Prince of Wales v Associated Newspapers Ltd, above 68. Consider also Ferdinand V MGN Ltd [2011] EWHC 2454 (Nicol J). The claim in that case does not appear to have been based on copyright in the text messages at issue. However, it is possible to envisage such a claim being made in equivalent circumstances.

109. Because the document has neither previously been made available to the public nor is being used for the purpose of reporting current events and, as a result, falls outside the CDPA 1988's fair dealing exceptions.

110. For an example of the very broad interpretation of ‘expression’ in the Strasbourg case-law, see Hashman & Harrup v United Kingdom (2000) 30 Ehrr 241 (European Court of Human Rights). It could, perhaps, be argued that commercial piracy, or the trading in copyright-protected goods would not qualify as ‘expression’ for this purpose (although cf Levi-Strauss & Co v Tesco Stores Ltd [2002] 3 Cmlr 11 (Pumfrey J) [35]-[44]).

111. See, for example, the judgments of the European Court of Human Rights in Von Hannover v Germany (2005) 40 Ehrr 1; Axel Springer AG v Germany [2012] Emlr 15 and Von Hannover v Germany (No 2) [2012] Emlr 16.

112. SI 2004 No. 3391. The Regulations implement obligations arising under Council Directive 2003/4 on public access to environmental information.

113. Under the FOIA, provisions that exempt public authorities from the obligation to disclose on request in certain circumstances are described as exemptions (ss 21–44). However, under the EIR, the term ‘exemptions’ is employed (reg 12). In this paper, the term ‘exemptions’ is used throughout to describe such provisions.

114. Under the FOIA and the EIR, ‘information’ is defined only as ‘information recorded in any form’ (s 84). For discussion, see Coppel, P Information Rights (Oxford: Hart Publishing, 3rd edn, 2010).Google Scholar It is often said that copyright protects ‘expression’ rather than ‘information’. This aphorism is itself an expression of the principle that a defendant will not infringe copyright in a work if he or she takes pre-existing facts or information from that work. Such facts or information are not regarded as forming part of the protected ‘originality’ of the work (see Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 Wlr 2416, 2423, per Lord Hoffmann). However, under the FOIA and the EIR, the concept of ‘information’ will also encompass the precise ‘expression’ of a copyright work.

115. The copyright owner may be either the public authority subject to the information request or a third party and obligations to disclose information under the FOIA and the EIR will generally apply to all information in a public authority's possession whether or not it (or its officers or employees) created that information (see FOIA, s 1; EIR, reg 3).

116. CDPA 1988, s 50. For fuller discussion of the relationship between freedom of information legislation and copyright law, see Griffiths, J ‘Recapturing liberated information: the relationship between the UK's Freedom of Information Act 2000 and private law restraints on disclosure’ in Torremans, Plc (ed) Intellectual Property & Human Rights (Dordrecht: Kluwer Law International, 2008) pp 399–420.Google Scholar Guidance on the relationship between the Freedom of Information Act and intellectual property rights has recently been provided in Information Commissioner's Office Intellectual Property Rights and Disclosures under the Freedom of Information Act, Doc 20120711, 2012.

117. (C-71/10) [2012] 1 CMLR 7 (CJEU); [2010] UKSC 3; [2009] EWCA Civ 90; [2008] EWHC 1455 (Admin). On this issue, see also the decision of the Information Commissioner in House of Commons, 7 June 2010, FS50276715 (‘whatdotheyknow.com’).

118. OFCOM is an acronym for the Office of Communications.

119. There is no direct equivalent of this provision in the FOIA. However, the exception for [commercial harm] may be relevant.

120. The FOIA contains both ‘absolute’ and ‘qualified’ exemptions. ‘Qualified’ exemptions can only be relied upon to resist disclosure where, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information (FOIA, s 2). Under the EIR, all exemptions are ‘qualified’ and will only apply when in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information (EIR, reg 12). For discussion, see Coppel, above 115, pp 439–507.

121. EA/2006/0078, 4 September 2007.

122. [2008] EWHC 1455 (Admin).

123. Because it would have involved the extraction or reutilisation of all or a substantial part of the contents of the protected database within Regulation 16(1) of the Copyright and Rights in Databases Regulations 1997 and would not have fallen within the limited range of defences available under Regulation 20 of those Regulations (OFCOM v Information Commissioner [2009] Ewca Civ 90 [48]).

124. [56].

125. The judgment of the Court of Appeal was appealed to the Supreme Court on a separate issue (the question of whether the public interest balancing exercise under the EIR required a cumulative analysis of the relevant public interests when a public authority considered a number of the exemptions under the Regulations to be engaged). The Supreme Court referred the question to the Court of Justice ([2010] UKSC 3), which held that such a cumulative approach was required ((C-71/10) [2012] 1 CMLR 7).

126. It should also be noted that, in a number of recent cases, the Court of Justice has held that copyright exceptions are to be interpreted restrictively. See (C-5/08) Infopaq International A/S v Danske Dagblades Forening, above 59, at [56]–[58]; (C-145/10) Eva-Maria Painer, above 59, at [109]; (C-302/10) Infopaq International AS v Danske Daglades Forening (‘Infopaq II’), above 59, at [27]. However, cf (C-403 & 429/08) Football Association Premier League v QC Leisure, above 106, at [162]–[163]; (C-145/10) Eva-Maria Painer, ibid, at [133].

127. In Mars UK Ltd v Tecknowledge Ltd, above 28, Jacob J suggested that the public interest defence would not apply to a claim for infringement of database right. However, this view may well be unjustified if the defence is interpreted as a form of pre-emption principle (Art 13 of the Database Directive may offer some support for pre-emption in this context).

128. Hyde Park Residence Ltd v Yelland, above 18, at 673.

129. Under the FOIA, an applicant can elect to have information disclosed by means of a copy (s 11).

130. This is particularly so, given that the research institution could itself apply for disclosure of the same information.

131. The potential conflict between copyright law and statutory access regimes such as the FOIA and the EIR has been provided purely as an example of a situation in which the defence might apply. There may be other such situations. It may, for example, be employed to resolve some of the problems arising from the increasing number of overlaps between different intellectual property regimes. The questions arising as a result of increasing overlap in the scope of intellectual property rights have begun to receive scholarly attention. See eg Tomkowicz, R Intellectual Property Overlaps (London: Routledge, 2012);Google Scholar Derclaye, E and Leistner, M Intellectual Property Overlaps (Oxford: Hart Publishing, 2011).Google Scholar

132. Section 171(3) may, for example, be of assistance in preserving ‘spare parts defences’ if, under EU law, the concept of ‘work’ is interpreted as covering a wider range of industrial designs following Flos SpA v Semeraro Casa e Famiglia SpA (C-168/09) [2011] ECDR 81. For a discussion of the problem presented by Flos, see L Bently ‘The return of industrial copyright?’ [2012] EIPR 654.

133. It will also differ from the analysis of pre-emption conducted by US courts in copyright proceedings. Under the Copyright Act 1976, all rights that are ‘equivalent’ to any of the exclusive rights within the general scope of those granted under the Act are pre-empted (s 301). However, in applying the public interest defence, as interpreted here, a UK court is obliged to determine whether one norm ought to supersede another in any particular instance.

134. Consider, for example, Lion Laboratories and Ashdown. It could also be suggested that, prior to the development of a comprehensive regulatory system of competition law, the ‘public interest’ defence fulfilled a temporary role in ensuring that copyright law did not permit the abuse of a dominant position, see British Leyland v Armstrong Patents, above 28.

135. A legislative solution to some aspects of the potential conflict between copyright law and the FOIA was unsuccessfully proposed in debates before the Public Bill Committee on the Enterprise and Regulatory Reform Bill: see Hansard, 12 July 2012, col 620, 631–638.