Reconsidering the Need for Defences to Permit Disclosures of Confidential Copyright Material on Public Interest Grounds

Abstract

This article assesses the adequacy of the Australian legal framework governing unauthorised disclosures of confidential copyright material on public interest grounds. In Australia, in contrast with the United Kingdom (UK), courts are unlikely to recognise the existence of a non-statutory ‘public interest defence’ to copyright infringement or a ‘public interest defence’ to breach of confidence. Instead, it has been argued that a number of equitable doctrines and principles — the iniquity rule, clean hands, and the principles for the grant of injunctive relief — can do much the same work as the UK defences. This article critically analyses the role that the three abovementioned doctrines and principles have played and might play in facilitating ‘public interest’ disclosures, and seeks to revisit the case for defences to both breach of confidence and copyright infringement that would permit such disclosures. First, it shows that there are some types of disclosure that would be likely to be permitted by public interest defences in the UK but which would be restrained in Australia because of the limits of the three abovementioned equitable principles and doctrines and the current scope of the exceptions in the Copyright Act 1968 (Cth). Second, it makes a case that greater attention needs to be paid to the possibility of bringing Australian law into closer alignment with the position in the UK. It is argued that it would be problematic to expect the iniquity rule, clean hands and the principles governing injunctive relief to be stretched too far to deal with the full range of disclosures that might be caught by public interest defences, and that some of the concerns that have been expressed about the unstructured nature of public interest defences have not been borne out in practice in the UK over the past 40 years.

Keywords: unauthorised, disclosures, confidential, copyright, public interest