Ashdown v Telegraph Group, UK (2001)

This case dealt with copyright infringement and breach of confidence. The Telegraph had published several verbatim extracts from a confidential lengthy minute prepared by Lord Ashdown of a meeting between himself, Tony Blair and other political figures in October 1997, when they had discussed the possibility of co-operation between New Labour and the Liberal Democrats. The extracts contradicted denials emanating from Downing Street of stories published in other newspapers concerning this possibility.



Photograph of the front page of the Sunday Telegraph, Issue No 2,007, November 28, 1999



  Photograph of pages 4-5 of the Sunday Telegraph, Issue No 2,007, November 28, 1999

  Photograph of pages 4-5 of the Sunday Telegraph, Issue No 2,007, November 28, 1999

Lord Ashdown was planning to publish the diaries of which the minute formed part. Even though the newspaper did not pay to publish the extracts, it was clear that the minute was confidential. Lord Ashdown brought proceedings for copyright infringement and breach of confidence.

In its defence, Telegraph claimed that the reproduction was "fair dealing for the purposes of criticism or review" (s. 30 CDPA 1988). This argument, however, failed. The Court of Appeal established that in a conflict between copyright and freedom of expression, the Human Rights Act can override the Copyright Act.

The Court of Appeal held that fair dealing should be liberally interpreted within the context of its purpose, namely “to protect the role of the media in informing the public about matters of current concern to the public". As regards the word "current" in the context of the fair dealing defence, this should also cover "recent" events should they be of public interest.

Full citation: Ashdown v Telegraph Group [2001] EWCA Civ 1142

Creation Records v News Group Newspapers, UK (1997)

This case was mainly concerned with the issue of subsistence of copyright. A freelance photographer took a picture during an Oasis photo-shoot of the scene that was chosen to feature in their album cover. He published and sold it as a poster in the Sun newspaper. The musician who had arranged the scene together with the group's record company and licensee brought proceedings for copyright infringement and breach of confidence and moved for interlocutory injunction to restrain further publication until trial.  

Photographs of the defendant's picture as featuring on the Sun newspaper on April 19, 1997

Photographs of the plaintiffs album cover and CD. The album was released on August 21, 1997.  

Lloyd J held that, while there was an arguable case for breach of confidence, there was no copyright infringement. The arrangement of the scene was merely an assembly of ‘objets trouvés’ and, from a copyright perspective, it was neither a sculpture nor a collage. Since copyright did not subsist in the arrangement of these objects, the photograph was neither a copy of a copyright work nor a copy of the official photograph; it was merely a shot of the same scene.

To Lloyd J,

“…[i]f the subject matter is not itself a copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other…two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are… ”

What is more, Lloyd J found that the composition of the scene was intrinsically ephemeral to qualify for copyright protection.

Full citation: Creation Records Ltd. v News Group Newspapers Ltd. [1997] EMLR 444