The case of Ashdown v Daily Telegraph illustrates the operation of the fair dealing defence in the Copyright, Designs and Patents Act, 1988, Section 30, which provides that fair dealing with a copyright work for the purpose of criticism or review or the reporting of current events does not infringe any copyright in the work.
In order to qualify for protection, the use made of the work must be "fair", and there must be sufficient acknowledgement such that the work and its author can be identified. The defence available for the reporting of current events does not apply to the use of photographs.
Paddy Ashdown brought an action for an injunction and damages for infringement of his copyright after The Daily Telegraph published extracts taken from minutes of a meeting with Prime Minister Tony Blair, in October 1997. He prepared the minutes as part of a diary and his ownership of copyright was not disputed.
The extracts were said to reveal that the PM seriously intended to form a coalition Cabinet and this contradicted the denials emanating from 10 Downing Street.
The Daily Telegraph argued that publication was for the purposes of criticism and review of the ideas, doctrine, philosophy and events in the minutes and their political implications.
The Vice-Chancellor ruled that as the work was the minutes and as the article did not criticise the minutes but the behaviour of the Prime Minister, the use was an infringement of copyright.
He accepted that the use could have amounted to the reporting of current events but went on to consider whether the use was fair.
The question of "fairness" one of fact, degree and impression, but the most important factors are;
1. whether the use is in commercial competition with the owner’s exploitation of the work;
2. whether the work has already been published or otherwise exposed to the public and;
3. the amount and importance of the work which has been taken.
He concluded that the publication did compete with the envisaged use by Paddy Ashdown who could subsequently publish his diary, the minute had not previously been made public and a significant amount of important material had been taken, hence the fair dealing defence had no reasonable prospect of success.
Jonathan Crusher is an associate solicitor in the media department of Crockers Oswald Hickson
By Jonathan Crusher
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