Journals, 'Spiders' and HRH Prince Charles - relevance to copyright?

In 2006 HRH the Prince of Wales successfully sued Associated Newspapers for breach of confidence and infringement of copyright after the Mail on Sunday published extracts from his journals recording his impressions on a trip to Hong Kong.

Copyright

At trail, Associated Newspapers sought to argue that Prince Charles was not the owner of the copyright, arguing that, in fact, Crown Copyright existed in the journals.

The trial judge (Blackburne J) dismissed this claim.  He accepted that the Prince was not a servant of the Queen nor of her government, and that although he might have been deputising during the visit, his journals did not form part of his state duties.  As a result the journals were not subject to Crown Copyright.

The judge also rejected the newspaper's arguments that the extracts were not a 'substantial part' of the original works, that there was a fair dealing defence of reporting current events or alternatively the newspaper was dealing fairly with the works for the purposes of criticism or review.

To claim the latter defence, as the judge pointed out, requires that copies of the original work must have previously been issued to the public.  Clearly that was not the case with the journal, given the other claim being brought by the Prince i.e. breach of confidence.

In what appeared to be a desperate attempt to find some form defence, the newspaper tried to invoke the public interest defence under section 171(3) of the Copyright Designs and Patents Act ("CDPA").  Unsurprisingly the judge was not persuaded by these arguments either.

Although Associated Newspapers appealed the first instance decision, the appeal was dismissed and Prince Charles won the injunction he was seeking to prevent them from publishing any more extracts from his journals.

Applicability to a more recent case

The Guardian newspaper recently won a 5 year battle (which went all the way to the Supreme Court), to have a number of the Prince's letters (the so-called 'Black Spider' memos), released under the Freedom of Information Act.  Various arguments were advanced by the Prince's lawyers as to why they should not be released but they did not include copyright.

The reason why this argument was not advanced was because of section 50(1) of the CDPA 1988 which states that:

"50 Acts done under statutory authority.

(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright."

So because the Freedom of Information Act authorises (indeed requires) that certain information is released to a member of the public, assuming the request complies with the necessary criteria, any copyright in the materials divulged is not infringed by the release, even where the copyright owner has not given permission for it to be issued to the public. The only specific protection afforded by the Freedom of Information Act is that personal data (which is defined by the Data Protection Act) is exempt from disclosure.

It is clear therefore that section 50 CDPA 1988 is a powerful tool but the circumstances when it may apply are limited and that is likely the reason why it is rarely cited in either the commentaries or in cases before the courts.  In effect section 50 gives Parliament the power to bypass copyright protection where some other statutory aim is sought, without necessarily making that fact explicit when the new legislation is undergoing scrutiny in Parliament. This was the case with the Freedom of Information Act which contains a single reference to copyright buried away in a 2004 amendment made necessary by the devolution of various powers to the Scottish Parliament.