Online only, so far

Two right royal rows over copyright loom

WE ARE getting used to copyright - the law that ultimately underwrites freelances' ability to charge for your work - facing crunch points. Now there are two, and between them they encompass every nook and cranny of the UK's unwritten constitution except, as far as we can tell, the Church.

In Parliament, Jo Stevens, Labour MP for Cardiff Central, wrote to ask the Secretary of State for Business, Energy and Industrial Strategy "what plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law".

On 21 January Chris Skidmore, Conservative MP for Kingswood, a (very) junior government minister - currently Minister of State (Department for Business, Energy and Industrial Strategy) (Universities and Science) - delivered an answer:

The deadline for implementing the EU Copyright Directive is 7 June 2021. The United Kingdom will leave the European Union on 31 January 2020 and the Implementation Period will end on 31 December 2020. The Government has committed not to extend the Implementation Period. Therefore, the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.

The NUJ is talking with other organisations representing creators to see about changing the government's mind. We must be aware, though, that it is talking of a trade deal with the US government; and that these very often include clauses committing the other government to adopt US-style copyright principles and measures friendly to the US-based internet giants. There may be trouble ahead.

However, on the same day Nigel Adams, the Minister for Sport, Media and Creative Industries, did say in a Westminster Hall debate:

We support the overall aims of the Copyright Directive, but our imminent departure from the EU means that we are not required to implement it in full. It is imperative that we do everything possible to protect our brilliant creators, as well as the rights of consumers and users of music. I look forward to working with the music industry to ensure we achieve that and, as I have said on many occasions, I will work to ensure that we stop the exploitation of our artists here in the UK.

Further, Kerry McCarthy, the Labour MP for Bristol East has several interesting further questions awaiting answer as we write.

The Court in court

We now turn to the monarchy, the courts and the "fourth estate" that is the Press. We heard in 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 - in publishing extracts of a private letter to Meghan's father (October Freelance online).

Now the paper has filed an outline of its defence to the claim. It is a most remarkable document. Paul Wragg, Associate Professor of Law at the University of Leeds, gives a very thorough analysis here, continued here.

The part that has the strongest implications for us is this claim by the MoS lawyers:

The Letter purports to recite pre-existing facts both past and present... As recited in words those pre-existing facts and admonishment are neither the Claimant's own intellectual creation nor original... Accordingly, it is denied that the Letter comprises the Claimant's own intellectual creation and therefore it is denied that the Letter is an original literary work.

As noted Twitter lawyer David Allen Green (@davidallengreen) observes, this is an argument "that because in her letter she was stating pre-exisiting facts, her letter cannot qualify for copyright protection as an 'original' work." This is a "remarkable submission for a news organisation... If the MoS submission on this is correct then presumably no news organisation - or non-fiction writer - can enjoy copyright protection for their work... I think this paragraph may be the most extraordinary submission I have ever seen in any media law case, and it deserves a prize for its audacity."

The MoS also argues that if - as is surely the case - Meghan Markle does hold copyright in her letter, the paper had a right to break that because "the public have always had a legitimate and natural interest in the lives of members of the Royal family and particularly about new members of the family." Wragg observes: "I do know the court will use its favourite expression to remind [the company] of the difference between public interest and what interests the public."

The Freelance shares the view that the MoS defence of the Sussex copyright, privacy and data protection claims is desperate. It's also what lawyers call "arguing in the alternative" - as in "my client did not steal the car, and if she did she had lawful excuse". That's a sure sign of a lost cause.

So the actual strategy for defeating the Royals' claim is to threaten to put Mr Markle on the stand - under privilege. That, as anyone with the rudiments of media law will know, means that whatever he said in court could be reported in full at the time. That may be quite some threat to the claimants.

And, as we observed in October, any eventual judgement in this case could define UK law on your right to defend the integrity of your works - one of the so-called "moral right". And it's likely to lead to a veritable excrement-storm of anti-copyright campaigning. Prepare to be denounced as a royalist for defending rights in your work.