Pre-Empting Conflict - A Re-Examination of the Public Interest Defence in UK Copyright Law
![handle is hein.journals/legstd34 and id is 78 raw text is: Legal Studies, Vol. 34 No. 1, 2014, pp. 76-102
DOI: 10.1111/lest.12006
Pre-empting conflict - a re-examination of
the public interest defence in UK
copyright law
Jonathan Griffiths*
Queen Mary, University of London
It is over 10 years since the Court ofAppeal confirmed the legitimacy of the public interest
defence in copyright law in Ashdown v Telegraph Group Ltd. However remarkably little is
still known about the defence's function and scope. Indeed, acknowledgement of its
unfathomability has become something of a commonplace of copyright jurisprudence and
scholarship. This situation contrasts sharply with the position in other related areas of
law, such as breach of confidence and defamation, in which courts have made dramatic
strides in recasting doctrine to protect 'public interest' disclosures. Developments in EU
copyright law have also plunged the defence into a renewed crisis of legitimacy. The time is
therefore ripe for a reconsideration of the role of the public interest defence in UK copyright
law. In this paper an attempt is made to understand its implicit rationale and scope. It
is argued that the existing jurisprudence reflects a persistent concern about copyright's
potential to subvert policy outcomes generated by alternative regulatory systems and that
the defence is to be viewed as a form of pre-emption doctrine, allowing courts to avoid
the explicit rules established under the CDPA in circumstances in which their application
would frustrate the outcomes of other more appropriate forms of regulation.
Jonathan Griffiths, Department of Law, School of Law, Queen Mary, University of London, Mile End Road,
London El 4NS, UK. Email: j.griffiths@qmul.ac.uk
INTRODUCTION
The Copyright Designs & Patents Act 1988 ('CDPA') provides an extensive list
of exceptions and limitations to the claim for infringement of copyright. In addi-
tion to these statutory 'permitted acts', the unlicensed use of a copyright work
may also be excused under the public interest defence. This defence, developed
originally by the courts, has been controversial. To some, it offers a dangerous
invitation to judicial policy making and ought therefore to have no role in the regu-
lation of a statutory property right.' Nevertheless, in Ashdown v Telegraph Group
* Earlier versions of sections of this paper have been presented at the intellectual property
section of the Society of Legal Scholars' Annual Conference, the Centre for Commercial Law
Studies (Queen Mary, University of London) 30th Anniversary Conference and at the European
Intellectual Property Institutes Network. I am grateful for the comments and suggestions
provided at those events. I am also grateful for the helpful comments of the journal's reviewers.
1. Notably, for example, HL Laddie et al The Modern Law of Copyright and Designs
(London: Butterworths, 2nd edn, 1995) pp 126-131 [although cf 4th edn (London: LexisNexis,
2011) 3.166, 21.20]. See also Hyde Park v Yelland [2000] 3 WLR 215 (CA), discussed further
below.
@ 2013 The Author. Legal Studies @ 2013 The Society of Legal Scholars](ViewImageLocal?handle=hein.journals/legstd34&div=7&collection=&method=preview&ext=.png&size=3)
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Pre-Empting Conflict - A Re-Examination of the Public Interest Defence in UK Copyright Law
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