Yin Harn Lee, Senior Lecturer in Law, University of Bristol Law School
‘So … we have what the people are interested in, and human interest stories, which is what humans are interested in, and the public interest, which no one is interested in?’
‘Except the public, sir,’ said William, trying to keep up.
‘Which isn’t the same as people and humans.’
‘I think it’s more complicated than that, sir.’
— Terry Pratchett, The Truth
It is not unjustifiable to argue that public interest considerations have lain at the heart of copyright law since its inception. The 1710 Statute of Anne, often regarded as the first British copyright statute, has as its full title ‘An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned’. Its objectives, as set out in its preamble, were to prevent the printing and reprinting of ‘books and other writings’ without the authorisation of their ‘authors and proprietors’, a practice leading to the ‘very great detriment’ of authors and ‘too often to the ruin of them and their families’, and by this means to encourage ‘learned men to compose and write useful books’.
Underpinning the statute, therefore, is the notion that, by providing authors with a time-limited right to control the printing and reprinting of their books, authors would be incentivised to produce more works, which would in turn be beneficial to the public. The time-limited nature of the protection also served the public interest as, at the end of the term, the protected works would fall into the public domain, leaving them free to be printed, reprinted, sold and distributed by anyone who chose to do so, typically at much cheaper prices (as these subsequent publishers would not need to reimburse authors for their costs of creation).
While a number of historians cautioned against accepting this invocation of the public interest at face value, a survey of copyright law shows that public interest considerations do inform many of its key principles. One of these is the scope of protection itself. It is a long-established principle that copyright protects only the expression of a work, and not the ideas or information that are embodied in it. This is reflected at the international level by article 9(2) of the TRIPS Agreement, which states that ‘[c]opyright protection hall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such’. The purpose of the limitation is to ensure that ideas and information remain free for the use of the public.
Public interest considerations have also featured heavily in debates concerning the appropriate duration for copyright protection. In 1841, Thomas Macaulay, giving one of his most famous speeches on copyright, cautioned against the extension of the term of protection beyond the life of the author (as was the statutory position at the time) in the following terms:
The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated: and the least objectionable way of remunerating them is by means of copyright … It is good, that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.
The exceptions and limitations found in copyright law, particularly the fair dealing exceptions relating to permitted uses of works for research and private study, criticism and review, quotation, education, parody, caricature and pastiche, and the reporting of current events, are underpinned by public interest considerations. In recommending the enactment of the adoption of a general fair dealing exception, the 1977 Whitford Committee took the view that:
Any sort of work is likely to be of public interest, and the freedom to comment and criticise, to discuss and debate, ought not, in principle, to be restricted … There must, however, be some protection for the interests of copyright owners … a copyright owner is surely entitled to complain if his market is being cut into, in the sense that other people are selling the work rather than their views on the work.[1]
In addition, the courts have on very rare occasions permitted a defendant to successfully resist a claim of copyright infringement on the ground that the use of the protected work is justified ‘in the public interest’ (Lion Laboratories v Evans (1984); Ashdown v Telegraph Group (2001)). This is despite the lack of an express statutory provision to that effect. To the extent that a statutory basis can be found for such an approach, it is section 171(3) of the Copyright, Designs and Patents Act 1988, which has been interpreted to mean that the courts retain some discretion to refuse to enforce copyright on public interest grounds (Hyde Park Residence v Yelland (2000)).
A case in which the public interest defence was successfully deployed is Lion Laboratories v Evans (1984), where the manufacturers of a breathalyser device which had been authorised by the Home Office for use by the police, sought to prevent the Daily Express from publishing extracts of an internal memorandum that called into question the accuracy of the device. In doing so, the Court of Appeal emphasised the need to distinguish between ‘what is interesting to the public’ (to which the defence would not apply) and ‘what it is in the public interest to make known’, noting that the public ‘are interested in many private matters which are no real concern of theirs and which the public have no pressing need to know’. The Court of Appeal also observed that the media ‘are peculiarly vulnerable to the error of confusing the public interest with their own [private] interest’ in publishing ‘what appeals to the public and may increase their circulation or the numbers of their viewers or listeners’.
The courts have also, on other rare occasions, relied on the same principle in declining to enforce copyright in works that are obscene, blasphemous or immoral. This includes works created in circumstances that might be understood as ‘immoral’. In the Spycatcher case (1988), the House of Lords took the view that had the author, former MI5 officer Peter Wright, sought to enforce his copyright in his memoirs, any court in the UK would have refused to allow him to do so, as the book had been written and published in breach of the duty of confidence Wright owed to the Crown.
Finally, public interest considerations have also been given significant weight in legislative discussions around the feasibility and desirability of collective licensing schemes. In order addressing the problems arising from the availability of photocopiers — which were beginning to come into widespread use — the 1977 Whitford Committee recommended the adoption of a blanket licensing scheme on the following basis:
…it seems to be generally accepted that society in general, and education in particular, should be able to enjoy the fullest possible measure of benefit from modern reprographic devices and that the solution of the problems posed by photocopying should lie not in any suppression of the use of modern technology but in the adoption of arrangements which ensure that authors and publishers continue to enjoy sufficient financial incentives to write and publish. Negotiated blanket licences are seen as the only practicable solution by the majority of interested parties.
Striking a balance
A consistent theme that emerges from the case law and commentary is the notion of copyright as having the role of striking an appropriate balance between the exclusive rights of the author and the interests of the public. At the same time, the grant of copyright protection is itself seen as something which is necessary in the public interest. The precise nature of the public interest may shift considerably depending on the issue at hand.
In applying the fair dealing defences on criticism and review and reporting of current events, the courts frequently link the public interest with freedom of expression (as one might expect). In Pro Sieben Media v Carlton (UK) Television (1998), a case involving the unauthorised use of an extract of an interview with Mandy Allwood (who had been dubbed the ‘Octomum’ by the tabloid press), the Court of Appeal described free speech as ‘a very important part of [the] wider public interest’.
Debates around the duration of protection, meanwhile, tend to frame the public interest in terms of ensuring public access to a wide range of works on relatively affordable terms. On some occasions, the identity of the public as ‘consumers’ has been highlighted. In rejecting the 1977 Whitford Committee’s recommendation that a levy should be introduced on the sale of equipment (including blank media) for private audio and video recording, the government took the view that any financial benefit of the scheme to rightholders would be outweighed by its adverse effects on individual consumers, particularly blind and visually impaired people who made extensive use of such equipment. It concluded that this was ‘a question of balance, and on this question we have come down on the side of the consumer’.
In cases where the courts have declined to enforce copyright on the ground that the work in question is obscene, blasphemous or immoral, emphasis has been placed on the deleterious effects of such works on the moral character of members of the public. In Glyn v Weston Feature Film Co (1915), Younger J, in refusing to enforce the copyright in the erotic romance Three Weeks by Elinor Glyn, expounded at some length on what he perceived as its dangerous effects on the psyche of young women:
…a glittering record of adulterous sensuality masquerading as superior virtue, as it does in this book, [is] calculated, with consequences as inevitable as they are sure to be disastrous, to mislead into the belief that she may without danger choose the easy life of sin many a poor romantic girl striving amidst manifold hardships and discouragements to keep her honour untarnished.
How seriously is the public interest taken?
While public interest considerations underpin much of copyright law, and have been taken into account both at the initial legislative stage and in subsequent judicial decision-making, there are questions as to whether existing processes enable it to be given adequate weight. While the public interest has historically been central to discussions about the duration of protection, it was barely a footnote in the Parliamentary debates surrounding the most recent term extension. This was intended to give effect to the EU Term Directive, which harmonised the term of copyright protection across all EU states at the life of the author and seventy years following their death. While the extension of the term of protection was, in a sense, a fait accompli, Parliament could nevertheless have considered reforms to other aspects of copyright law — such as introducing more exceptions and making the existing ones more flexible, which it eventually did nearly ten years later — in order to maintain the existing balance between protection of rightholders’ exclusive rights and the interests of the public.
There are also questions as to whether individual users and indeed individual authors are adequately represented in policy debates, particularly where digital media and digital modes of disseminating works are concerned. In the present day, these tend to devolve into contests between ‘Big Publishing’ (major book publishers, record labels, Hollywood etc) and ‘Big Tech’ (Google, Amazon, Meta, Microsoft etc), whose interests may overlap to some extent with those of individual users and/or authors, but are certainly not dictated by them. The same pattern is repeated in copyright litigation as well. Applications for website blocking injunctions — an order directing an Internet service provider (‘ISPs’) to block or remove its subscribers’ access to specified websites containing infringing material — brought by rightholders are generally not opposed by ISPs, provided that they do not impose particularly onerous responsibilities (such as a requirement to monitor live Internet traffic for potential infringements). This makes sense from the ISP’s point of view: why engage in costly litigation from which it stands to gain no discernible material benefit rather than implement a low-cost technical measure which it already has ample experience of doing? However, website blocking injunctions potentially constitute a serious interference with Internet users’ freedom of expression and their freedom to receive and impart information and ideas — yet they are uniformly unrepresented in these proceedings.
It is true that, in such cases, judges conscientiously remind themselves about the importance of striking an appropriate balance between copyright protection and the public interest, but given the stakes, this is hardly an effective substitute for well-articulated and fully-worked-out submissions, and there is a real risk of it becoming a mere tick-box exercise. In recent years, the courts have been willing to grant website blocking injunctions that are more and more expansive in their manner of operation (in Sky v British Telecommunications (2023), the court was willing to grant an injunction which allowed the rightholder to choose both when and for how long the blocking measures were to be applied, a significant departure from previous practice), which exacerbates the risks to the public interest.
Conclusion
Public interest considerations have played a key role in shaping copyright law since its inception. However, the precise nature of the public interest sought to be taken into account is ever-shifting and somewhat protean, and much depends on the context in which it is invoked. Sometimes, the grant of copyright is itself seen as being in the public interest, as it provides an incentive for authors to engage in the production of creative works. On other occasions, the public interest has served as a mechanism for protecting values as various as freedom of expression, public morality, and the ability of consumers to access copyright works on affordable terms. However, there are long-running questions as to whether existing processes allow it to be given weight both at the legislative stage and in subsequent judicial decision-making, as well as whether the interests of individual authors and users are adequately represented in such proceedings.
[1] Report of the Committee to Consider the Law on Copyright and Designs (Cmnd 6732, 1977), [676].