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Copyright Defence - In the Public Interest?

Written by Jody Tsigarides on 10 July 2010

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There is no official statutory provision offering 'in the public interest' as a defence to copyright infringement. However can it be used?

The answer is yes but only in very rare circumstances can/ does a Defendant raise these grounds in order to avoid successful action for copyright infringement against them.

Case law is very mixed on this area and can be highlighted by the following;

(1) Lion Laboratories v Evans - this case saw the publication of an internal memo which criticised the accuracy of breathalysers sold by the claimant. The defendant raised the public interest defence on the grounds that investigations should be made regarding the accuracy of the equipment to avoid incorrect readings when used by the police on motorists.

The three members of the Court of Appeal all accepted this defence.

(2) Hyde Park v Yelland - this case saw an application for summary judgment to prevent the publication of images of Dodi Fayed and Diana Princess of Wales (taken from security film). The public interest defence was raised on the basis that the images disproved certain claims made by another party over the whereabouts of Dodi Fayed and Diana Princess of Wales. The defence was refused as it was argued that the information could have been displayed without infringing copyright.

It was also claimed that the public interest defence should not apply to copyright on the following basis;

(a) that the existing statute are comprehensive and offer defences one of which is not public interest (b) That the law of copyright protects the reproduction of a form of works and not the material contained within it and (c) that the defence was incompatible with the Berne Convention.

(3) Ashdown v Telegraph - this case saw the decision in Hyde v Yelland being rejected and approval of the Lion case. The case involved an action to prevent the publication of a secret memorandum written by Paddy Ashdown who was then the leader of the Liberal Democrat party. The memo referred to a meeting between Tony Blair and the Lib Dems over a pact between the Lib Dems and Labour. Again the in the public interest defence was raised.

In summary it was held that as long as it was necessary to reproduce the works in identical form (i.e. that it is not possible to present the information in another format) and if other defences failed then the public interest defence could be used. It did however confirm that the circumstances in which this defence would be accepted are very rate.

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