Legal Update 02.12.05

Prince Charles’s decision to sue Associated Newspapers over the
publication of extracts of his private journal is not the first time a
member of the royal family has sued for breach of copyright. In 1848
Prince Albert successfully sued William Strange, a printer who had
prepared a catalogue to accompany an exhibition of stolen copies of
Prince Albert’s etchings. Prince Albert won this injunction in one of
the first ever privacy cases – but his successor is not likely to be so
fortunate.

The article published by Associated Newspapers
described Prince Charles’ journal as “an extraordinary and historic
document” which “could define him as one of the greatest chroniclers of
our time”. It contained a number of quotes from the journal, but
otherwise simply reported, albeit at some length, on the contents of
the journal, which the paper acknowledged had been given limited
circulation to other royals, courtiers and favoured politicians –
presumably all people Prince Charles felt he could trust. Clarence
House has said that only 11 copies of the journal were distributed: The
Mail on Sunday reported it had been posted to between 50 and 100
people. Prince Charles has claimed that the publication infringed his
copyright, and amounts to a breach of confidence.

There can be no
argument that the journal is an original work that attracts copyright
protection. But copyright does not protect the ideas contained in a
literary work, only the expression of those ideas, and reporting on the
contents of the work is not by itself an infringement. For an
infringement to take place, a substantial part of the work must have
been copied. The Mail on Sunday reports that the journal is 3,000 words
long. The article only quoted 203 – around seven per cent. The number
of words taken is not the only test: if the words copied are the most
important parts, that can also be an infringement. It is clear that the
claim in copyright is far from straightforward.

It is this
weakness in the copyright claim that has presumably prompted the
addition of a claim in confidence. Private thoughts, communicated in
private, do undoubtedly attract the protection of confidence and it is
not necessary to stipulate that a communication is confidential if it
is clear that it must be so from the circumstances. If the distribution
of the journal was limited to a small number of trusted friends, which
seems to be what Clarence House claims, then it is likely that the
court would find that publication was made in confidence.

But
confidence claims are always vulnerable to a claim that publication is
in the public interest, and it is difficult to see how the future head
of state can credibly argue that in a modern society his concerns about
the future of what had been one of this country’s most successful
colonies would be anything other than in the public interest.

Had
the claim been brought prior to publication, there might have been some
prospect of obtaining an injunction, at least on an interim basis. As
it is, I fear that all this litigation will do is serve to alert
readers to the fact that there are a number of journals out there, the
contents of which have not yet been revealed.

Caroline Kean, head of litigation, Wiggin LLP