Copy that, copy cat

The only usual intersection between family lawyers and copyright is the wail of annoyance you get when you are drafting a document with bullet points (a)-(f) and you find that at the third point, the c wants to turn into a little copyright symbol.

Well, that and memories of doing your schoolwork and noting someone peeking over at your work you write a quick © on it to prevent someone copying it. Generally this is accompanied by the chant of ‘copycat, copycat, don’t know what you’re looking at’ (this is generally frowned upon in Court)

But I’ve seen a couple of judgments coming onto Bailli, where the rubric asserts Crown Copyright, for example this one (not singling this one out, it is happening quite a bit at the moment)

http://www.bailii.org/ew/cases/EWHC/Fam/2018/2658.html

This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

(the judgment itself is interesting, and there are all sorts of things within it which would be worthy of discussion, but who wants to go off and get a licence to be able to quote from a Crown Copyright document? Not me, that’s for sure)

That sounds very much as though you are not allowed to quote from it unless you have a licence, or express consent to do so. That’s a bit of a problem for journalists, or bloggers, or any advocate who wants to quote it in a skeleton or case summary, or Judge who wants to quote it in a judgment, or litigant in person or MacKenzie Friend who wants to quote it in a case.

I think this is being wrongly added to judgments, and it should stop. I don’t know whether it is a conscious decision or just some cut and paste being done without thinking it through.

I’m afraid I’m just about to hit you with some Copyright law, but the tl;dr bit is that in this paragraph

This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

I think only the first four words are right.

So first, what is Crown Copyright?

Crown copyright is a form of copyright claim used by the governments of a number of Commonwealth realms. It provides special copyright rules for the Crown, i.e. government departments and (generally) state entities.”Copyright protects original expression in literary, dramatic, musical and artistic works”. Each and every single Commonwealth realm has its own distinct Crown copyright regulations….Crown copyright applies “where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties”. The Crown can also have copyrights assigned to it.

I think the document is CAPABLE of attracting Crown Copyright, being a work created by an officer of the Crown (a Judge) in the course of their duties. There is original expression, and a judgment is a literary work. Some of them might have more literary merit than others, but they are all literary works.

The legislation is the Copyright, Designs and Patents Act 2008

163 Crown copyright.

(1)Where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties—

(a)the work qualifies for copyright protection notwithstanding section 153(1) (ordinary requirement as to qualification for copyright protection), and

(b)Her Majesty is the first owner of any copyright in the work.

(2)Copyright in such a work is referred to in this Part as “Crown copyright”, notwithstanding that it may be, or have been, assigned to another person.

(3)Crown copyright in a literary, dramatic, musical or artistic work continues to subsist—

(a)until the end of the period of 125 years from the end of the calendar year in which the work was made, or

(b)if the work is published commercially before the end of the period of 75 years from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published.

(4)In the case of a work of joint authorship where one or more but not all of the authors are persons falling within subsection (1), this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

So the copyright provisions on a judgment published in 2018 last until 2143. I suppose there might still be an interest in a judgment 125 years from now (we do still cite very old cases from time to time) but that’s certainly no use for a topical blog. There’s absolutely no chance that readers in 2143 will be interested in my pop culture references of the 1980s and 1990s, even if I do get my brain preserved in a jar so that I can keep writing.

However, there are two valid exceptions in the copyright provisions, which mean that I think that applying for a licence or permission to quote from a published judgment is not necessary.

Section 30 of the Copyright, Designs and Patents Act 2008 says there’s no copyright in fair use for review or reporting

30 Criticism, review, quotation and news reporting.

(1)Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement [F2 (unless this would be impossible for reasons of practicality or otherwise)] [F3 and provided that the work has been made available to the public].

[F4 (1ZA)Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that—

(a)the work has been made available to the public,

(b)the use of the quotation is fair dealing with the work,

(c)the extent of the quotation is no more than is required by the specific purpose for which it is used, and

(d)the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).]

[F5(1A)

For the purposes of [F6subsections (1) and (1ZA)] a work has been made available to the public if it has been made available by any means, including—

(a)the issue of copies to the public;

(b)making the work available by means of an electronic retrieval system;

(c)the rental or lending of copies of the work to the public;

d)the performance, exhibition, playing or showing of the work in public;

(e)the communication to the public of the work,

but in determining generally for the purposes of [F7those subsections] whether a work has been made available to the public no account shall be taken of any unauthorised act.]

(2)Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.

(3)No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film [F8 or broadcast where this would be impossible for reasons of practicality or otherwise].

[F9(4)To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of subsection (1ZA), would not infringe copyright, that term is unenforceable.]

If you are writing about a judgment for the purpose of sharing news, critiquing it or reviewing it, you can quote from it, as long as you acknowledge who the author was, and your use of quotations is fair in conveying what you are discussing. (That’s what lets book reviewers put quotations from the book in the review, but stops them just printing large chunks of it unless the publication pays the author for the serialisation rights)

That doesn’t help with advocates wanting to cite the case and highlight certain passages though, so more importantly, it also seems to me that section 45 of the Copyright, Designs and Patents Act 2008 means that no such licence or express consent is needed

45 Parliamentary and judicial proceedings.

(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.

For example, in the Dan Brown Da Vinci Code case where it was alleged that Dan Brown had stolen his ideas from another book, neither of the authors could claim that the Judge, in setting out quotations from the book was breaching their copyright. S45 (1), but for our purposes s45(2) means that reporting such a judgment is not infringing any copyright. And what you are doing when you cite a passage from a case is giving a report of the decision the Court made and the factors that influenced that decision. Hence, reporting.

The second part of s45(2) says in effect that if someone writes a dazzling analysis of a piece of judgment or a fabulous analogy about adoption law and passive aggressive post-it notes on a student fridge, and then someone else chooses to lift all of that dazzling analysis into their submissions or skeleton without crediting the original author, THAT can be a breach of copyright.   (For my part, I’m happy for people to steal any of my stuff, as long as they name-check me, and I’ve never come across any example of people not doing that)

So, you* can continue as you were, unless you are responsible for that Crown Copyright rubric being added, in which case I’d prefer that the practice stops, because I think it adds nothing and has the potential to make people who intend to use them for perfectly legitimate aims .

(* By ‘you’ there, I mean ‘me’, because I’m not giving you legal advice about copyright law and I would not claim for an instant that I was in a position to do so. I’m NEVER giving legal advice to any individual on this blog, but sometimes it is just worth reiterating that)