Whose copyright is it anyway?

Apologies for radio silence, I’ve been away on holiday and have a few longer posts brewing for later.  In the meantime, I received a response to a Freedom of Information request I made of Her Majesty’s Courts Service, which I’ll share.  I wrote to HMCS trying to get hold of some data which could cast light on a) what proportion of court judgements make their way into the public domain via Bailii, and b) how much HMCS spends each year on third party transcription services.  Unfortunately, HMCS weren’t able to help me with this part of my request as data is not collected on it and they’d have to look at each case individually.  Of some interest, however, is some information they kindly supplied me on a discretionary basis, in response to my querying who owned the copyright of judgments.  I’ll quote their response verbatim:

The position regarding copyright in court judgments is not, however, entirely clear. The Office of Public Sector Information (OPSI), is part of the National Archives and manage all copyrights owned by the Crown on Her Majesty’s behalf. Copyright material which is produced by employees of the Crown in the course of their duties and therefore most material originated by ministers and civil servants is protected by Crown copyright. There is no definitive view on whether court judgments are Crown copyright. Although OPSI, following advice from the Treasury Solicitor, take the view that copyright in court judgments rests with the Crown, in that judges are officers or servants of the Crown and their judgments are delivered in the course of their duties, this is not a universally held view and it can be argued that judges act independently of the Crown and that copyright in court judgments rest with individual judges. OPSI’s position is that insofar as judgments are Crown copyright it is content for them to be re-used free of charge and without requiring prior clearance providing the source is acknowledged.

Consideration would need to be given to the rights of reporters and journalists as published editions of judgments attract copyright protection in the typographical arrangement of their published editions although not in the judgment itself. Reporters may also seek copyright protection for additional content such as head notes and other commentary.

So it seems that the situation is not even so simple as considerations of transcription and  typographical arrangement would suggest; the copyright issues also hinge on the constitutional status of the judiciary itself.

In other news, in a major breakthrough for supporters of Open Justice, Supreme Court cases are to be streamed live online.  You can watch them here on Sky’s website, and you can read the press release here.  It’s a shame in a way there isn’t the flexibility of BBC iPlayer – it seems as if you can only watch them live, but it’s a great start.  I’d be intrigued to know whether the BBC were approached to provide the service… [Edit: have just written to them asking, will update when they respond.]

And the Court of Protection has published the judgment following on from the so-called ‘quaero-injunction’.  In W v M (2011) Baker J casts light on the reasons he issued an injunction against journalists approaching 65 people in a highly sensitive case.  It’s not a little disappointing that most of the media clamour around this judgment has focussed on his including Twitter and Facebook in its injunction, in addition to traditional media, and they have neglected to report several other interesting features of the judgment.  Few outlets (Martin Beckford at the Telegraph being a welcome exception to the rule) have noted that the 65-person injunction on doorstepping has shrunk to including only the family.  And perhaps unsurprisingly, few have reported the extreme distress and anxiety potential ‘doorstepping’ by journalists posed the family.  This engaged not only their own Article 8 ‘right to private life’, but their Article 6 rights to a fair trial as well since the potential press attention had led them to considering withdrawing their case in court.  Their fear of media harassment was such that it had even threatened to discourage them from visiting their relation, in case the press were waiting for them.

It’s not really part of the story the mainstream media want to tell about the ‘secretive’ court that their methods of investigation were a source of considerable distress to some families, which could act as a deterrent against them seeking justice.  The Times Newspapers Ltd, who were represented at the hearing, accepted the evidence of the families and agreed to the reporting and ‘doorstepping’ restrictions.  Other media outlets, who subsequently complained about the injunction and accused the court of ‘secrecy’, did not send their own legal representatives to fight their corner.  I presume that though they have seen the injunction, they have not been party to the witness statements by the family that the Times’ lawyers saw.  In my view, for what it’s worth, compared with the highly unpleasant image of the press doorstepping a very vulnerable woman in her care home, potentially following her about her business outside the home, photographing her and approaching her distressed family and those who care for her, it is hard to agree with the opinion expressed by John Hemming that these injunctions are ‘evil’.

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