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I. COPYRIGHT: CASES AND MATERIALS
point in enforcing secrecy on something that is no longer secret. But what is the
copyright status of the work?
Attorney General v. Guardian Newspapers Ltd [1990] A.C. 109 (U.K.,
House of Lords)
[On leaving his job as a British intelligence officer, Peter Wright wrote and
published worldwide a book called Spycatcherabout the secret workings of
British intelligence agencies. The publication broke Wright’s contractual
obligation of loyalty to the U.K. Government, as well as the Official Secrets Act
1911 (U.K.). The U.K. Government sought an injunction against some British
newspapers for participating in Wright’s breach of confidence by publishing, or
threatening to publish, extracts from the book. This order was, however,
refused because an injunction could no longer prevent the publication of
secrets that had by then circulated widely throughout the world.
Two interesting suggestions were made by the judges hearing the case:
(1) The U.K. government might be entitled to the copyright in the book,
even though it was written after Wright had left the government’s
employ. Should not an ex-employer own copyright in works written by
ex-employees who broke continuing obligations of secrecy?
Alternatively:
(2) If Wright did retain his copyright, neither he nor anybody claiming
under it (e.g., as a licensee or even assignee) could enforce the
copyright in a U.K. court because of his illegal acts.
On Point (2), one of the judges commented as follows:]
LORD JAUNCEY:
The courts of the United Kingdom will not enforce copyright claims in relation to every original
literary work. Equitable relief has been refused where the work contained false statements
calculated to deceive the public ... and where the work was of a grossly immoral tendency ... In
a passing-off action [in 1906, a Scottish court] refused relief to a company which had perpetrated
a deliberate fraud on the public by a series of false factual statements about its product...: “No
man is entitled to obtain the aid of the law to protect him in carrying on a fraudulent trade...
[T]he Courts have in the past given effect to the principle which allows nothing to the man who
comes before the seat of justice with a turpis causa.”
The publication of Spycatcherwas against the public interest and was in breach of the duty of
confidence which Peter Wright owed to the Crown. His action reeked of turpitude. It is in these
circumstances inconceivable that a United Kingdom court would afford to him or his publishers
any protection in relation to any copyright which either of them may possess in the book. That
being so, anyone can copy Spycatcherin whole or in part without fear of effective restraint by
Peter Wright or those claiming to derive title from him. It follows that the future ability of the
Sunday Timesto serialise Spycatcher does not derive solely from their licence. They are free to
publish without reference thereto and are thus for practical purposes in no better position than
any other newspaper.
