Technology &
Internet Law

The Impact of the Human Rights Act on Copyright Protection

The Court of Appeal in Paddy Ashdown v Telegraph Group Ltd [2001] EWCA 1142 (19 July 2001) has fully reviewed the question of whether the Human Rights Act 1998 (HRA) affects the protection afforded to owners of copyright under the Copyright, Designs and Patents Act 1988 (CDPA). 

The High Court had rejected the defendants' contention that when considering whether an actionable breach of copyright has occurred, the courts must now have regard to the right of freedom of expression conferred by Article 10 of the European Convention of Human Rights (thereby requiring the Court to give individual consideration to the facts of each case in order to assess the impact of Article 10). It held that the CDPA already strikes the appropriate balance between copyright owner's rights and freedom of expression. 

The Court of Appeal observed that, given that the exclusive rights of a copyright owner are essentially negative, copyright is antithetical to freedom of expression.  However, copyright does not normally prevent the publication of the information in the literary work. Only the freedom to express that information using the copyright owner's verbal formula is prevented by copyright. 

The Court agreed that the CDPA allows 42 circumstances (including criticism, review, news reporting and 'fair dealing') whereby copying material does not infringe copyright. These reflect circumstances in which freedom of expression is already recognised, in effect those in which freedom of expression trumps copyright protection. 

Article 10(2) of the Convention declares that restrictions on the exercise of the right of freedom of expression are permissible if they are (1) prescribed by law; (2) for the protection of rights of others; and (3) are necessary in a democratic society. It was held that the CDPA does satisfy all the requirements of Article 10(2), because the needs of a democratic society include the recognition and protection of private property. Such property includes copyright. 

Be that as it may, the Court found that the jurisprudence developed in Strasbourg suggests circumstances in which freedom of expression might even protect an individual who reproduced the very words spoken by another. Accordingly, there will be occasions when it is in the public interest not merely that information should be published, but that the public should be told the very words used by a person, notwithstanding copyright. However, the Court of Appeal could see no reason in principle why the author should not be compensated, in such circumstances even if an injunction could not be granted. Freedom of expression should not, however, normally include the right to make free use of another's work (see "What's New" - 'Human Rights Act 1998: Privacy as an Exploitable Property Right' - July 2001). 

The Court of Appeal concluded that public interest might on rare occasions require the verbatim publication of copyright material. Rare as these occasions may be, the HRA (and the Convention) does impact on the protection granted by the CDPA to copyright owners.

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