51
I. COPYRIGHT: CASES AND MATERIALS
occasion for some two hours. Al Fayed repeated the claim on several
occasions.
Shortly after a newspaper published a report repeating this claim, another
newspaper The Sunpublished stills taken from a security camera that had
recorded the couple’s visit to Al Fayed’s house. The stills showed the time the
couple came and went, and indicated the visit had lasted only 28 minutes.
The Sunhad bought the stills from a security officer formerly employed by Hyde
Park, a company controlled by Al Fayed. The officer had positioned the security
cameras on the day and had taken stills at the request of another Al Fayed
employee shortly after the accident. The officer had taken a copy of the stills
when he resigned, because he claimed that he and others were being
pressured by Al Fayed to lie about the timing of the visit. The stills were
published to support his version of the story.
Hyde Park sued the newspaper for copyright infringement. The first instance
court accepted the newspaper’s defence that the public interest overrode
copyright, but the Court of Appeal allowed an appeal.]
MR JUSTICE JACOB in the High Court:
Ta ke a case where a document, carefully researched and compiled by a team of bank robbers,
indicated the precise weaknesses of the security systems of each of the branches of a major bank.
Copyright is normally accorded to carefully and skilfully compiled lists as being original work.
But it can hardly be the law that the police could not make copies of the list to give to the bank
and its security advisors. Nor does it make sense to say that the robbers could sue at least for
nominal damages if the police did so. Or suppose the police obtained from a security video a
picture of a bank robber. Do they really have to get the permission of a copyright owner (perhaps
not readily identifiable in a hurry) before showing the picture of the robber on television when
seeking the help of the public to track him down? And if they do not do so, could the copyright
owner really sue for nominal damages? The questions only have to be asked to be answered.
LORD JUSTICE ALDOUS in the Court of Appeal:
In my view, the examples given by the judge do show why the courts refuse in certain
circumstances to enforce copyright. To enforce copyright in a document prepared for a bank
robbery would offend against principles of public order and morality and a court would be amply
justified in refusing to enforce copyright in such a document under its inherent jurisdiction. Such
an exercise of the court’s inherent jurisdiction would be akin to a refusal to enforce an agreement
which was illegal. As to the right of the police to publish a picture of a robber without permission
of a copyright owner, I have some doubts as to whether in all cases they could lawfully do so,
but no court would allow its process to be used to obstruct the course of justice. A court has,
under its inherent jurisdiction, the right to refuse to enforce an action for infringement of
copyright just as it can refuse to enforce a contract or other cause of action which offends against
the policy of the law. The more difficult question is to define the circumstances when that is the
appropriate course. ...
Article 10 of the Berne Convention allows quotations from copyright works provided that the
quotation is compatible with fair practice. ... However there is no general power for courts of
the signatories to such Conventions to refuse to enforce copyright if it is thought to be in the
public interest of that State that it should not be enforced. ...
