Meghan’s copyright reminder

07/12/2021

The Court of Appeal’s dismissal of an appeal against the High Court’s ruling in favour of Meghan, Duchess of Sussex has received widespread media coverage, and raised a number of specific legal points. However, it has also offered a timely reminder of the fundamentals of copyright and its interaction with rights established in the Human Rights Act.

New evidence

A substantial part of the Associated Newspapers appeal was based on new evidence surrounding the 5-page handwritten letter written by the Duchess in August 2018 to her father, Thomas Markle.

Originally the case was heard based on the Duchess not knowing if, and to what extent, the Kensington Palace Communications Team were involved in briefing the prospective publishers of the book “Finding Freedom”, a book co-authored by Omid Scobie and Caroline Durand, and to People magazine. However new evidence subsequently emerged that the Duchess knew that the communications team was providing such information which, Associated Newspapers contended, included contents of the letter.

Following much deliberation the judge decided to admit the new evidence.

Human Rights Act

Article 10 of the European Convention on Human Rights guarantees the right to transmit and receive information and ideas without state interference. But this is a “qualified” right in that interferences are justified only if they are prescribed by law and are necessary and proportionate in pursuit of a legitimate aim. It was such rights to freedom of expression exhibited by Thomas Markle and Associated Newspapers which the Court had to balance against Meghan’s copyright in the letter.

In doing so the Court relied on previous judgements which concluded that giving effect to the right of freedom of expression will be protected if there is a right to publish information and ideas set out in another’s literary work, without copying the very words which that person has employed to convey the information or express the ideas. In other words, it would be possible for the essence of the letter to be conveyed without using the precise text that it contained.

Fair proportion

In delivering judgement the Court of Appeal explained that whilst it might have been proportionate to disclose and publish a very small part of the letter to rebut inaccuracies contained in the People article, it was not necessary to deploy half of the letter as published by Associated Newspapers.

Lessons learned

This judgement is a timely reminder of the rights of an author of works to its copyright. Although there is relatively little new law here, the level of costs incurred by the parties and the time taken to reach judgement serve as a warning that matters of intellectual property are rarely clear cut.

To read the full judgment, click here.

More information

For expert advice about protecting your intellectual property rights please contact the Pinney Talfourd commercial team.

This article was written by Edward Garston, Partner in our Company & Commerical Team. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of December 2021.

07/12/2021

Authors

Edward Garston

Partner

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