Hyde Park Residence Ltd v Yelland

Fair dealing for reporting current events is assessed objectively from the publication’s context and likely impact. Relevant factors include motive, extent and purpose, necessity, and whether the work was unpublished or uncirculated. A use intended to expose or vilify a person, rather than report current events, will not satisfy section 30(2) of the Copyright, Designs and Patents Act 1988. Copyright protects the form of a work, not information recorded in it. The public interest in publishing information therefore does not ordinarily justify reproducing the work. The inherent jurisdiction preserved by section 171(3) permits refusal to enforce copyright only where enforcement would offend the policy of the law. The photographs were neither fair dealing nor within that limited exception.

Hyde Park owned copyright in security-camera film recording Diana Princess of Wales and Dodi Fayed visiting Villa Windsor. The Sun published still images from the film without consent in an article attacking Mohamed Al Fayed’s account of the visit. Hyde Park brought copyright proceedings and sought summary judgment under O.14 and 14A of the RSC.

Mr Justice Jacob upheld pleaded defences of fair dealing and public interest and dismissed the copyright claim. Hyde Park appealed, challenging both defences and the order dismissing the claim before trial. The central issue was whether the defendants had a bona fide defence on the assumed facts.

Appeal allowed. The Court of Appeal unanimously gave judgment for Hyde Park. Stuart-Smith LJ agreed with Aldous LJ’s reasons. Mance LJ agreed with the result and most of the reasoning, but expressed reservations about the wider scope of the public-interest jurisdiction.

1. On an O.14 application, judgment could be entered only if the defendants had no bona fide defence. The procedure could not resolve disputed facts or conduct a trial on affidavit evidence. The pleaded and evidential facts were therefore assumed unless admitted or incapable of controversy.
2. Under section 30(2) of the Copyright, Designs and Patents Act 1988, the purpose of the use had to be assessed objectively from the relevant parts of the publication and its context. The approach in Pro Sieben AG v Carlton UK Television Ltd [1999] 1 WLR 605 required attention to likely impact, rather than reliance on asserted intention alone.
3. Fair dealing required an objective assessment by reference to the motives of the user, the extent and purpose of the use, whether the extent was necessary, and whether the work had been published or circulated. The stills had been dishonestly obtained, were unpublished, were reproduced excessively, and were used to expose and vilify Mr Al Fayed. The relevant timing information could have been reported without reproducing the stills and was already publicly available. The defence therefore failed.
4. Section 171(3) preserved an inherent jurisdiction to refuse enforcement of copyright where enforcement would offend the policy of the law. It did not create a general public-interest balancing defence equivalent to that applicable to confidential information. Copyright protected the form of the work, not the information recorded in it.
5. The driveway stills were not immoral, scandalous, injurious to public safety or the administration of justice, or inciting such conduct. No public-interest exception applied. Mance LJ considered that the categories of exception were probably incapable of precise definition and that ownership or assignment might sometimes be relevant, but this did not affect the result.

• Court of Appeal: On 10 February 2000, allowed the appeal, gave judgment for Hyde Park and refused permission to appeal to the House of Lords. [2000] EWCA Civ 37
• Chancery Division: Mr Justice Jacob upheld the fair-dealing and public-interest defences and dismissed the copyright claim, granting leave to appeal.