Copyright Law after Ashdown - Time to Deal Fairly with the Public

Abstract:     
In Ashdown v. Telegraph Group Ltd, the Court of Appeal considered the impact of the Human Rights Act 1998 on the scope of the defences available in proceedings for infringement of copyright. While apparently reshaping the law to ensure compatibility with Article 10, it adopted a particularly restrictive approach to the fair dealing and public interest defences. In this article, it is suggested that the Court of Appeal failed to acknowledge the true requirements of the right to freedom of expression under the Human Rights Act. It is argued that the conception of "fair dealing" applied in Ashdown focuses exclusively on the interests and conduct of the parties to proceedings and does not, therefore, take sufficient account of the public's right to receive information under Article 10. An alternative approach to the question of "fair dealing", which reconsiders the factors traditionally regarded as relevant in an assessment of "fairness", is advocated.

Number of Pages in PDF File: 25

Keywords: copyright, infringement, defences, exceptions, limitations, fair dealing, public interest, freedom of expression, media freedom, Article 10, Article 10 European Convention on Human Rights, Human Rights Act 1998

Accepted Paper Series