copyright in his work. This is that there will be occasions when it is in the public interest not
merely that information should be published, but that the public should be told the very words
used by a person, notwithstanding that the author enjoys copyright in them. Furthermore they
reached the conclusion that in rare circumstances the right of freedom of expression would come
into conflict with the protection afforded by the Copyright Act, notwithstanding the express
exceptions to be found there under. In the circumstances they felt bound to apply the Copyright
Act in a manner that accommodates the right to freedom of expression and considered the
specific circumstances to see whether the defence of "public interest" would be availed to the
Defendant.
Counsel further relied on a summary of the law by Laddie, Prescott and Victoria, "The
Modern Law of Copyright and Designs". In the textbook there is a definition of what amounts
to fair dealing. The first important factor is whether the alleged fair dealing is in fact
commercially competing with the proprietor‘s exploitation of the copyright work, a substitute for
the probable purchase of authorised copies. If it is, the fair dealing defence would fail. On the
other hand if there is a moderate taking and there are no special adverse factors, the defence is
likely to succeed especially if the Defendant‘s additional purpose is to right a wrong, to ventilate
an honest grievance, to engage in political controversy and so on. The second most important
factor is whether the work has already been published or otherwise exposed to the public. If it
has not, where the material has been obtained by breach of confidence or other mean or
underhand dealings, the court would be reluctant to say that this is fair. It may be fair for
purposes of legitimate public controversy to make use of "leaked" information. Another
important factor is the amount and importance of the work that has been taken. Although it is
permissible to take a substantial part of the work, in some circumstances the taking of an
excessive amount or the taking of even a small amount if on a regular basis would negative fair
dealing.
I have carefully considered the principles and I have come to the conclusion that the cases are
irrelevant in considering the defence of "public interest". This is because in the first place the
public interest is considered in the context of the use of the copyright work. In other words where
it is a criticism of the work, where it is an exposure of the work for other legitimate reasons,
where the work is leaked in the public interest etc, it would be a defence to the use of the work
by the Defendant. Secondly the case before the court does not involve conflicting interests
between freedom of expression and the freedom of press against the right to copyright. In the
Ashdown case information that was leaked was found to have violated the applicant's copyright.
The Defendant is not a reporter or involved in the business of reporting news to the public and
the question of freedom of press cannot be considered. As far as its campaign is concerned, there
is no judicial precedent to the effect that the use of copyrighted work could be permitted for a
campaign in the public interest without consent of the owner of the copyright.
I have duly considered public interest as discussed by David Bainbridge on "Intellectual
Property" 6th Edition between pages 190 and 193. He writes that 'public interest' is a nebulous