When reporting "trumps" copyright: the sad case of Declan Hainey

Declan Hainey

IP cases from Scotland are none too common and, when they do come, they require a good degree of guidance and indeed translation from someone proficient in Scottish law. Fortunately for the IPKat, guidance came in the form of a note from his friend Gill Grassie (Maclay Murray & Spens LLP) on a hot topic that pits copyight against some countervailing public interests: the decision of Lord Woolman, sitting in the Court of Session, in Petition by the British Broadcasting Corporation for Access to Crown Productions in the case of Her Majesty's Advocate v Kimberley Mary Hainey (which you can read in full here). As Gill explains:

"This recent decision of the Court of Session in Scotland, dealing with what was primarily a criminal/murder charge, is not the usual type of case in which one might expect to see issues of copyright being debated.  The BBC applied for access to certain photographs of a little boy, muder victim Declan Hainey, which it wished to use in reports to be broadcast about the hearing in which criminal sentences had been imposed on the guilty party -- in this case Declan's mother.  Initially the BBC had requested releases of photographs on several occasions from the Crown Office (the Scottish equivalent of the Crown Prosecution Service in England and Wales). When access was refused it applied to the Court of Session under a specific procedure and was again refused access. The terms of that application were revised and it was opposed at that stage by the convicted mother.

The photos concerned were used at the trial and had been taken by the victim's mother, who was the owner of the copyright in them. Trial judge Lord Woolman, noting this, referred to Section 45 of the Copyright Designs and Patents Act 1988:

(1) Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.
(2) Copyright is not infringed by anything done for the purposes of reporting such proceedings; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings.

In the judge's view that provided an answer to any claim of copyright infringement which the owner of the copyright might raise here. The BBC only intended to use the photographs for the purposes of reporting the trial.

The BBC however also relied upon Section 171(c) of the same Act:

 "Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright on grounds of public interest or otherwise."

In this context, having also considered the effect of Article 10 of the European Convention on Human Rights (the right to impart and receive information), he decided that, were it necessary for him to decide this point, the public interest in the proper and full reporting of this case was sufficient to “trump” any right of the copyright owner.

Additionally, an interesting analysis arose of the Crown Office’s opposition to allow access to the photographs on the grounds that it would infringe Declan's grandmother’s right to privacy and potentially that of the mother. A balancing exercise between Articles 8 and 10 of the Convention was duly carried out and the judge restricted access to one particular photograph of Declan with his grandmother. This restriction was imposed on the basis that there was no good justification for publishing that photograph. However, remaining photographs were, according to the judge, in a different category and there was no reason why they could not be broadcast or published to illustrate the tragedy associated with the death of the infant concerned. Access was accordingly granted".

This Kat, who is naturally saddened by the tragic circumstances that led to the application, thinks the court got this right, both in terms of the section 45 point and in his consideration, obiter, of the application of section 171. He does not envy the Crown Office its task, as a principally crime-facing body, of having to apply principles of civil law which may be outside its normal remit