Online only, so far

Copyright law gets exciting

COPYRIGHT LAW is supposed to be calm - perhaps too calm when it's unenforceable. So it's worrying when gets exciting. This it did when we heard on 1 October that Prince Harry and Meghan Markle are suing the Mail on Sunday for copyright infringement as well as misuse of private information and breach of the Data Protection Act 2018.

This at least gave the opportunity for some copyright education, with the Guardian explaining that "the authors of letters retain ownership of the copyright even after the physical correspondence is in the possession of another individual."

It may set a useful precedent, too. The Prince and Duchess are not just suing for the economic value of the text - which could be substantial. They complain that the text was distorted, breaching their "moral right" to defend the integrity of the work.

This right is native to the worldwide mainstream view of authors' rights as human rights. In 1988 it was bolted on to the side of UK law, which holds the minority (English-speaking) view that copyright is a property right. Lobbying by publishers left the new right rather hard to enforce. For one thing, in UK law you can sue only for the cash value of a breach of copyright. What is the cash value of a misrepresentation that affects the author's "honour or reputation"? What is the cash value of your name?

There have been cases of lower courts awarding fairly small extra sums for breaches of moral rights, on top of economic damages. But in UK law we never really know what a law means until a case involving it has been fought all the way to the Court of Appeal, if not the Supreme Court. This has never happened for a moral rights case, precisely because of the uncertainty over what such a case might be worth. What does the moral rights law mean? We may be about to find out.

Then on 10 October Byline Investigates reported that Ben Stokes is suing the Sun for breach of intellectual property rights - almost certainly copyright. All we have is a court docket from 30 September, and the cricketer's statement condemning the Sun for engaging in "the lowest form of journalism, focused only on chasing sales" over a piece intruding into his family's private life. As the Freelance understands it, there may well be other matters on the docket.

Meanwhile in joined-up Europe...

France has already "transposed" into national law the part of the EU Directive on Copyright in the Digital Single Market that entitles newspaper publishers to ask internet corporations for a fee for re-using snippets of the news.

Google fought hard and dirty against the Directive - and lost. Its immediate response to the new French law was to announce that it would now show only headlines on - in the belief that it would not be liable for any payment. The Freelance can think of a reason or two why this belief may be false, but we're not going to alert Google just now.

Google has also launched a campaign to get website managers everywhere to opt in to it displaying "snippets" of stories - not mentioning that this seems to mean opting out of any right to payment. It may not be easy to explain to website managers - focused as they are on reporting to their boss how many people have seen the site - what it is they're giving away.

This echoes Google's cut-off-your-nose response to a similar law being passed in Spain: it closed rather than concede that it might have to pay anything, ever.

The European Federation of Journalists continues to support member unions in working to get the Directive implemented properly in each member state. In the UK the Trades Union Congress passed a motion from the Musicians' Union demanding that the government implement the terms of the Directive regardless of what else may happen between the UK and EU.