England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Laddie)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th December 1998

Lord Justice Robert Walker:

This is an appeal from an order of Laddie J made on 31 July 1997 after the trial of an action for copyright infringement. Laddie J held that Carlton UK Television Ltd (Carlton) and Twenty Twenty Television Ltd (Twenty Twenty), the defendants below and the appellants in this court, had infringed the copyrights of Pro Sieben Media AG (Pro Sieben), the plaintiff below and the respondent in this court. The main infringement established was the inclusion of a 30 - second extract from a German television programme broadcast by Pro Sieben on 27 August 1996 in a programme called 'The Big Story - Selling Babies' broadcast in this country on 29 August 1996. The latter programme was made by Twenty Twenty and was broadcast by Carlton. There was another infringement in the taping of the whole of Pro Sieben's programme (which was a magazine programme called TAFF) in order to select the extract to be used.

In reaching that conclusion the Judge rejected the appellants' reliance on the defence of fair dealing under s. 30(1) or s. 30(2) of the Copyright Designs and Patent Act 1988 (the 1988 Act). Section 30 of the 1988 Act is in the following terms.

(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.

(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, broadcast or cable performance.

"Sufficient acknowledgement" is defined in s. 178 as

"an acknowledgement identifying the work in question by its title or other description, and identifying the author unless -

(a) in the case of a published work, it is published anonymously;

(b) in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry."

The following summary of facts is taken from the fuller statement in the judgment below, to which reference may be made for further detail. Although criticism has been made of the Judge for his treatment of some of the evidence bearing on the states of mind of individuals in Carlton and Twenty Twenty, there is no challenge to the accuracy of his statement of the primary facts.

Early in August 1996 it became known that Ms Mandy Allwood was pregnant with eight live embryos, as a result of fertility treatment. She was then about 17 weeks pregnant. The father was her boyfriend Mr Paul Hudson. Her pregnancy received wide publicity and her lawyers approached and engaged the services of a well-known public relations consultant, Mr Max Clifford. On his advice Ms Allwood entered into various contracts including one giving the News of the World exclusive rights in the United Kingdom in respect of interviews.

Pro Sieben is the third largest television company in Germany. It broadcasts by way of terrestrial television, satellite and cable. Its satellite broadcasts (made from Luxembourg by way of the Astra 1 A satellite) can be received with reasonable quality in parts of the United Kingdom. One of Pro Sieben's regular programmes is a daily magazine programme called TAFF which runs for about 30 minutes.

On 20 August 1996 Pro Sieben made an agreement with Mr Clifford giving it the exclusive right to broadcast in Germany an interview with Ms Allwood. She and Mr Hudson were interviewed and filmed together. The interview was conducted in English but broadcast with a voice-over in German. It did not attack or criticise Ms Allwood or Mr Hudson (who at that time were receiving mixed publicity, some favourable and some unfavourable).

The filmed interview and the other filmed material were edited so as to produce three items to be broadcast, including a nine-minute item for the TAFF programme (the TAFF report) which was broadcast on 27 and 28 August 1996. The TAFF report was not limited to film of Ms Allwood and Mr Hudson. It included film of an interview with her specialist, a distinguished obstetrician, who gave his opinion that it would be dangerous if Ms Allwood persisted in her stated intention to continue her pregnancy with all eight embryos, without any selective termination of pregnancy. One of the filmed scenes included in the TAFF report, near the beginning, was a 30-second clip of Ms Allwood and Mr Hudson visiting a toy shop to buy eight teddybears. This was filmed at a shop in Wimbledon, the locality in which Ms Allwood was being housed in seclusion. The idea of going into the shop was that of Pro-Sieben's reporter but the idea of buying teddies was Mr Hudson's.

Carlton is a well-known television company broadcasting in England. Its flagship current affairs programme 'The Big Story' was a 25-minute programme broadcast at 7.30 p.m. on Thursdays. Mr Michael Morley of Carlton was the commissioning editor for the series. Programmes in the series were made for Carlton by Twenty Twenty, an independent production company based in London. Ms Dorothy Byrne, who is the series editor of 'The Big Story' and had editorial responsibility for the 'Selling Babies' programme, worked on a freelance basis for Twenty Twenty. She was closely involved in the decision to make the programme and in making it. The programme (the Carlton programme) was made under considerable pressure of time and was broadcast on Thursday 29 August 1996.

The Judge heard oral evidence, particularly from Mr Morley and Ms Byrne, as to their intentions (and those of others in Carlton or Twenty Twenty) in making the Carlton programme. However as that evidence, and the Judge's treatment of it, are matters of controversy on this appeal, it is better to proceed at once to a summary of the programme itself. The Judge saw a video of the Carlton programme and the relevant part of the TAFF report in open court and had the video (as well as transcripts of the two sound tracks, one in translation) available for reference while he was considering his judgment. This court has had the same facilities.

The programme was presented by Mr Dermot Murnaghan, who introduced the programme as follows,

"Tonight, how to make big money selling your private life to the press. Your relatives' private lives. The private lives of your friends or former partners. Our secret cameras go on the trail of the people cashing in on the life of Mandy Allwood. Like her former husband who, for ten thousand pounds is ready to dish the dirt."

There followed a brief clip from a secretly filmed interview with Mr Simon Pugh, Ms Allwood's former husband; a longer clip of the same interview was used later in the programme. Thus the programme focused at once on Ms Allwood but it also featured some other individuals whom Mr Murnaghan referred to as

"ordinary people who, when something extraordinary happens in their lives, now see it as a way of making huge sums of money."

The other persons interviewed were a man who had been struck by a racehorse at Ascot after he had had too much drink and wandered onto the course; the mother of a baby which had been abducted from St Thomas' Hospital in London and eventually recovered after being missing for 17 days; the parents of sextuplets born in Cleethorpes in 1993; a woman walker who in 1994 was rescued after surviving very severe weather conditions in the Cairngorms (she received money for interviews but gave it to rescue services); and a holidaymaker who was attacked by a shark in the Red Sea and was saved (after suffering serious injuries) by a school of dolphins. Interviews with these persons were interspersed with material relating to Ms Allwood.

In three places in the Carlton programme its makers contrasted their position with that of the practitioners of 'cheque-book journalism' at whose activities the programme was directed. Near the beginning Mr Murnaghan spoke to the camera,

"Over the last ten days lots of people have been making lots of money out of Mandy Allwood and her eight babies.

We're not going to try to interview Mandy, her Doctor doesn't think the media circus is good for her."

Halfway through the programme was a short interview with Ms Allwood's sister who, Mr Murnaghan said, had agreed to talk to the programme "for free". Near the end of the programme, by way of introduction to the 30-second extract from the TAFF report, he said,

"We proudly present to you for free this first British showing of Mandy and Paul's exclusive which cost German television fifty thousand pounds.

After ten days of muck-raking, a sanitised version of the truth, tightly controlled by Max Clifford."

The 30-second extract was shown partly with Mr Murnaghan's comments as a voice-over, and partly with a snatch of the original English soundtrack of Mr Hudson counting teddybears as they were put on the toyshop counter. It should be noted in passing that there are two factual errors in the first sentence quoted above. The original broadcast of the TAFF report was capable of being received in many parts of England, by those who had the right type of dish and cared to listen to a German-language programme. And Mr Clifford actually received £30,000 or thereabouts from Pro-Sieben, but he had told Twenty Twenty that he received £50,000.

The Carlton programme ended with a filmed interview between Mr Murnaghan and Mr Clifford, who was asked if he had ever lied and replied

"Frequently, of course, I'm a PR. We lie all the time. You know, that's, that's what it's about lying, corruption, deceit."

The interview continued in that vein until the end of the programme. A theme running through the programme was that its makers were carrying out a 'sting' operation against Mr Clifford and others who were interested in making easy money from their connections with Ms Allwood or Mr Hudson.

The extract from the TAFF report was shown with the name TAFF appearing prominently in the bottom right-hand corner of the picture and (less prominently, especially against the background to those particular scenes) the logo of Pro Sieben in the top right-hand corner. That logo is a stylised figure 7, reflecting the fact that the plaintiff's name is the German equivalent of Channel Seven. It is accepted that the appearance of 'TAFF' was a sufficient acknowledgement of the title of the work, but there is an issue as to whether the logo amounted to identification of Pro Sieben as the author of the work. The respondent's notice does not rely on the expression 'accompanied' to which the judgment makes a passing reference.

The Judge's comprehensive reserved judgment began with a factual introduction (which, as already noted, it not challenged). It then proceeded with some general observations on the law of copyright, and an analysis of s. 30 of the 1988 Act and the questions of construction which it raises. The second half of the judgment (headed 'Application to the facts of this case') included the Judge's assessment of the oral and documentary evidence which the Judge had heard and seen (including, of course, the video of the TAFF report and the Carlton programme) and the Judge's conclusions on the various issues before him.

Apart from minor issues not raised in this court, the issues which the Judge had to decide were

(1) Did the Carlton programme make use of the TAFF report for the purpose of criticism or review ?

(2) If so, was that a fair dealing ?

(3) If so, was there a sufficient acknowledgement ?

(4) Did the Carlton programme make use of the TAFF report for the purpose of reporting current events ?

(5) If so, was that a fair dealing ?

In each case these questions have to be answered within the meaning of s. 30 of the 1988 Act, and bearing in mind the independent approach to construction enjoined by s. 28(4).

In order to avoid liability for copyright infringement the appellants had to obtain affirmative answers on issues (1), (2) and (3) (on s. 30(1)) and/or issues (4) and (5) (on s. 30(2)). The Judge resolved issue (3) (sufficient acknowledgement) against the appellants (page 10 of the transcript). He then considered issue (1), because it had been fully argued, and concluded (page 15) that the appellants had failed to discharge the onus of proving that the 30-second extract was included in the Carlton programme for the purpose of criticism or review of the TAFF report. The Judge did not therefore consider issue (2) (fair dealing under s. 30(1)).

The Judge then went on to consider issues (4) and (5) on s. 30(2). He concluded (page 16) that the use of the extract in the Carlton programme was not for the purpose of reporting the "minor but newsworthy event" that Mr Clifford had sold an interview with Ms Allwood to German television. In case he was wrong on that, the Judge said that he was in no doubt that the use made of the extract was not fair in all the circumstances.

So the Judge resolved all four issues on which he expressed a view against the appellants. They have appealed by way of a lengthy notice of appeal running to 30 paragraphs. From these it is possible to extract, without too much over-simplification, five main grounds of appeal : the Judge's general approach (paragraphs 1 and 2); his construction and application of the fair dealing defences under both s. 30(1) and s. 30(2) (paragraphs 3 to 4 and 28 to 30); his approach and conclusions on "purpose of criticism or review" (paragraphs 5 to 18); his approach and conclusions on sufficient acknowledgement (paragraphs 19 to 24); and his approach and conclusions on reporting current events (paragraphs 25 to 27). A respondent's notice (to affirm) contends that the test of purpose under s. 30 should be the objective, and that the Judge's construction of "reporting current events" was too favourable to the appellants.

However as often happens when there is a lengthy notice of appeal, the main thrust of the appellants' case only became apparent from their counsel's written and oral submissions. Part of the appellants' written argument headed 'General submissions on the judgment' begins as follows

"It is in his assessment of the nature of the defendants' programme that the judge appears to have made his gravest errors. The judge formed his own view of the nature and merits of Selling Babies. He formed an unjustifiably adverse view of the defendants' witnesses. In particular, he wrongly rejected Ms Byrne's evidence as to the nature of the criticism of Ms Allwood and Mr Clifford and the interview given to Pro Sieben. The appellants' evidence was clear. The purpose for including the 30 second extract included the purpose of criticism and for reporting current events.

Although upon reading the judgment, the judge's conclusions seem reasonable, once one has watched the appellants' programme, it is submitted that the judgment wholly fails to reflect the tenor of the programme. The judge's characterisation of the comment accompanying the offending shot as "throw away" is entirely misplaced: the whole thrust of the programme is that chequebook journalists do not get the truth."

The appellants' case really begins with some fairly limited criticism of the Judge's general observations on the statutory provisions which he had to apply. It then goes to criticise, more extensively and severely, his approach to the evidence, his assessment of it, and his conclusions on what are referred to above as issues (1), (2), (4) and (5). Issue (3) (sufficient acknowledgement) is largely self-contained but the Judge's conclusion on that is also criticised. That is the most convenient order on which to take the matter.

I see little if any force in the criticism of the Judge's general observations at pp 3 and 4 of the transcript. The Judge had well in mind that (quite apart from the special defences in Part I, Chapter III of the 1988 Act) there has to be unlicensed use of a substantial part of a copyright work before there can be liability for infringement. He also had well in mind that the wide variety of uses of copyright material permitted by the 49 sections comprised in Chapter III (acts permitted in relation to copyright works) are all directed to achieving a proper balance between protection of the rights of a creative author and the wider public interest. He must, I think, have had in mind that free speech is a very important part of that wider public interest. The Judge was however rightly concerned to point out that he had no general discretion to dispense with copyright protection, and that where use is made of a substantial part of copyright, any defence under Chapter III must be brought squarely within one or more of the sections. Some of those sections were first introduced in the 1988 Act. Others, including s. 30, can be traced back (though in a different form) to s. 6 of the Copyright Act 1956, s 2 of the Copyright Act 1911 and the doctrine of 'fair use' which emerged in earlier case-law.

There is another general point which should be mentioned, that is the approach which this court should take on appeal against a judge's ruling, after a full trial, on an issue of fair dealing. It is an issue on which the Judge had to come to a judgmental conclusion after taking into account a number of factors. In such a case the correct approach for an appellate tribunal was described as follows by Hoffmann LJ in Re Grayan Building Services 1995 Ch 241, 254 (the case was not cited in argument but it is well known),

"The judge is deciding a question of mixed fact and law in that he is applying the standard laid down by the courts ( [in that case] conduct appropriate to a person fit to be a director) to the facts of the case. It is in principle no different from the decision as to whether someone has been negligent or whether a patented invention was obvious: see Benmax v Austin Motor Co.Ltd [1955] A.C. 370. On the other hand, the standards applied by the law in different contexts vary a great deal in precision and generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision."

Hoffmann LJ then referred to the observations of Lord Bridge in George Mitchell (Chesterhall) v Finney Lock Seeds [1983] 2 AC 803, 815-6 (a case on the Unfair Contract Terms Act 1977) and those of Buckley LJ in Re Coventry [1980] Ch 461, 495-6 (a case on the Inheritance (Provision for Family and Dependants) Act 1975). That is the right approach on this appeal. The Judge's conclusions, especially on fair dealing, should not be disturbed unless they proceeded from some error of principle or are clearly unsustainable.

There has been little if any dispute in this court about the general principles applicable on the issue of fair dealing, whether under s. 30(1) or s. 30(2). It is a question of degree (Lord Denning MR in Hubbard v Vosper [1972] 2 QB 84, 94) or of fact and impression (Ungoed-Thomas J in Beloff v Pressdram [1973] RPC 765, 786). The degree to which the challenged use competes with exploitation of copyright by the copyright owner is a very important consideration, but not the only consideration. The extent of the use is also relevant, but its relevance depends very much on the particular circumstances (in Hubbard v Vosper Megaw LJ, at page 98, contemplated a case in which the quotation of an entire short work might be fair dealing). If the fair dealing is for the purpose of criticism that criticism may be strongly expressed and unbalanced without forfeiting the fair dealing defence; an author's remedy for malicious and unjustified criticism lies (if it lies anywhere) in the law of defamation, not copyright. The position was summarised by Henry LJ in Time Warner Entertainments v Channel Four Television [1994] EMLR 1, 14, in rejecting the submission that unrepresentative excerpts should lose the benefit of the fair dealing defence,

"As Lord Atkin said in a different context 'The path of criticism is a public way: The wrongheaded are permitted to err therein ...' (Ambard v A.-G for Trinidad and Tobago [1936] AC 322 at 335). 'Fair dealing' in its statutory context refers to the true purpose (that is, the good faith, the intention and the genuineness) of the critical work - is the programme incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another's copyright in the guise of criticism, and so profit unfairly from another's work ? As Lord Denning said in Hubbard v Vosper ( [1972] 2 QB 84 at 93): 'It is not fair dealing for a rival in the trade to take copyright material and use it for his own benefit.'"

This court has by contrast heard quite lengthy submissions as to whether the words "for the purpose of" in s. 30(1) and s. 30(2) import a subjective or an objective test. The Judge did not discuss this point at length, but (at page 4) rejected the submission made on behalf of Pro Sieben that even if the critic had the necessary purpose, the defence is not made out unless the purpose was understood by the audience.

In this court Mr Martin Howe QC (appearing with Miss May for the respondent Pro Sieben) has argued for an objective test. Mr Michael Silverleaf QC (appearing with Mr Vanhegan for the appellants) has argued that his clients' case satisfies the requirement however it is formulated, but argues in favour of a subjective or semi-subjective test. Both sides agreed that there is no helpful guidance in authority, either in cases on s. 30 of the 1988 Act or in cases on s. 6 of the Copyright Act 1956 or s. 2 of the Copyright Act 1911 (both of which used the plural form 'purposes').

The fact that there is no authority on the point after nearly 90 years suggests that the issue may not be of much practical importance; indeed, that it may not be a significant point of construction at all. In Sweet v Parsley 1970 AC 132 the House of Lords emphasised the importance of construing a composite phrase rather than a single word. It seems to me that in the composite phrases " for the purposes of criticism or review" and "for the purpose of reporting current events" the mental element on the part of the user is of little more importance than in such everyday composite expressions as "for the purpose of argument" or "for the purpose of comparison". The words 'in the context of' or 'as part of an exercise in' could be substituted for ' for the purpose of' without any significant alteration of meaning.

That is not to say that the intentions and motives of the user of another's copyright material are not highly relevant for the purposes of the defences available under s. 30(1) and s. 30(2). But they are most highly relevant on the issue of fair dealing, so far as it can be treated as a discrete issue from the statutory purpose (arguably the better course is to take the first 24 words of s. 30(1), and the first 16 words of s. 30(2), as a single composite whole and to resist any attempt at further dissection). It is not necessary for the Court to put itself in the shoes of the infringer of the copyright in order to decide whether the offending piece was published 'for the purposes of criticism or review'. This court should not in my view give any encouragement to the notion that all that is required is for the user to have the sincere belief, however misguided, that he or she is criticising a work or reporting current affairs. To do so would provide an undesirable incentive for journalists, for whom facts should be sacred, to give implausible evidence as to their intentions. The point is illustrated by two cases to which the court was referred, Hindley v Higgins and News Group Newspapers (23 August 1983, C.A.) and Associated Newspapers v News Group Newspapers 1986 RPC 515.

The court heard submissions on several other points of statutory construction (apart from the 'sufficient acknowledgement' issue which is addressed at the end of this judgment). It is not helpful to go far into those submissions except by reference to the facts of this particular case, and the way in which the Judge dealt with the evidence before him. But some general observations are called for.

'Criticism or review' and 'reporting current events' are expressions of wide and indefinite scope. Any attempt to plot their precise boundaries is doomed to failure. They are expressions which should be interpreted liberally, but I derive little assistance from comparisons with other expressions such as 'current affairs' or 'news' (the latter word being used in the Australian statute considered in De Garis v Neville Jeffress Pidler (1990) 18 IPR 292). However it can be said that the nearer that any particular derivative use of copyright material comes to the boundaries, unplotted though they are, the less likely it is to make good the fair dealing defence.

Criticism of a work need not be limited to criticism of style. It may also extend to the ideas to be found in a work and its social or moral implications. So in Time Warner Entertainments v Channel Four Television this court (in allowing an interlocutory appeal and discharging an injunction) accepted that a television programme criticising the withdrawal of the film 'A Clockwork Orange' from distribution in the United Kingdom amounted to criticism of the film itself, since the content of the film and the decision to withdraw it were inseparable ([1994] EMLR 1, 15 (Henry LJ) and see also Neill LJ at page 13). The appellants relied on that case. Pro Sieben on the other hand pointed out that s. 30(1) requires use for the purpose of criticism or review "of that or another work", and that the Judge (at page 15 of the transcript) was not persuaded that criticism of the TAFF report, as opposed to the decision to pay for an interview, was in Ms Byrne's mind when the Carlton programme was made or broadcast.

It is important to see what the appellants' pleaded case was on this point. The Judge referred (at page 11) to the defence relying on s. 30(1) in very general terms, and to the particulars supplied after a request by Pro Sieben. The relevant requests were as follows,

"7. Please state, so that the Plaintiff may understand the Defendants' case, which work or works are alleged to have been the subject of criticism or review.

8. Please provide full particulars of all facts and matters relied upon in support of the allegation that such work or works were the subject of criticism or review."

The replies were as follows,

"7. The Plaintiff's Film and /or the Plaintiff's Broadcast and/or other media exploitation.

8. Not entitled. The pleading adequately particularises the nature of the Defendants' case. Without prejudice to the generality of the foregoing the Defendants will contend that the Defendants' Film sought to criticise and comment upon the decision to make the Plaintiff's Film and to broadcast it as the Plaintiff's Broadcast and also to pay a substantial sum of money to Ms Allwood and/or Mr Max Clifford in order to make such a film and/or to broadcast it." (italics supplied)

The Judge (at page 11 of the transcript) quoted the italicised part of paragraph 8 of the replies but did not refer to paragraph 7. He did not therefore comment on the words "and/or other media exploitation". It may be said that those words are very vague, especially as part of a reply to a request for further and better particulars. Nevertheless the Judge should in my view have taken as his starting point that the appellants' pleaded case was that the Carlton programme was criticising various works representing the fruits of chequebook journalism, of which the TAFF report was one. The others (which might have been more particularised if Pro Sieben had pressed) were daily or weekly newspapers mentioned as having run stories on Ms Allwood or her partner or one or more of the other "ordinary people" to whom "something extraordinary happens in their lives". Four newspapers - the News of the World, the Sun, the Daily Mirror and the Daily Mail - were mentioned frequently in the Carlton programme, with shots of mastheads, headlines and parts of articles in those papers. Other newspapers (and one British television programme) received passing references.

As I have noted, the Judge did not accept that the Carlton programme's use of the TAFF report was for the purpose of criticism or review of the TAFF report, and he did not consider the possibility that it might have been for the purpose of criticism or review of the TAFF report and the newspaper material mentioned above, taken collectively as a genre of the fruits of chequebook journalism. Instead he concluded (page 14 to 15) that

"The overriding purpose of including the TAFF extract was to show that others in the media were prepared to pay large sums for interviews but Carlton television was not."

And at page 15,

"The primary purpose was to proclaim that the defendants were above chequebook journalism and to scoff at an anonymous German broadcaster for having paid money for an interview."

Having viewed the whole of the TAFF report and the whole of the Carlton programme several times, I have formed a quite different impression both of the Carlton programme as a whole and of its use of the 30-second extract from the TAFF report. The strongest message which I derive from the Carlton programme (which is, as the Judge noted, skilfully made) is that chequebook journalism is deeply inimical to truth. It divides the media into the 'haves' (those who have bought an exclusive story and think that that entitles them to present it as they think fit) and the 'have nots' (the rest, who resort to spoilers designed to upset their rivals, regardless of any hurt to individual feelings). Truth is likely to be an early casualty in these battles, which can be very traumatic for the "ordinary people" involved, even if they make some money out of it. The programme did however have an element of balance; one of the persons interviewed, the man who had been saved from the shark, had no complaints about his treatment at the hands of the media, and was glad that they had contributed to the cost of his treatment in hospital.

I ask myself how and why the Judge, who is very experienced in all matters relating to intellectual property, came to form such a very different impression of the Carlton programme as a whole, and in particular of its use of the extract from the TAFF report. I consider that the Judge erred in principle in focusing too much on the actual purposes, intentions and motives of Ms Byrne and the others who were involved in the planning and production of the Carlton programme, and in focusing too little on the likely impact on the audience (which the Judge considered, but only as evidence of the makers' purposes).

In some cases that error might make little, if any, difference to a trial judge's impression of the matter as a whole, and to the success or failure of the defence of fair dealing. But in this case it did make a big difference, because the Judge clearly formed a very unfavourable view of the evidence of Ms Byrne. The Judge quoted (at pages 11 and 12 of the transcript) from her witness statement and from what she said during cross-examination (when, the Judge said, she warmed to the topic of what a false picture the TAFF report gave). The passage set out on page 12 seems to be an accurate summary of what appears on the official transcript of evidence (Day 2, pages 39 to 40) as about six separate answers interrupted by the Judge asking the witness to speak more slowly (the point was made to us that the Judge did not have the benefit of a daily transcript of evidence).

The Judge clearly regarded Ms Byrne's evidence (given, he said, in a tone of indignation) as going far beyond any criticism of the TAFF report which was either expressed or implied in the Carlton programme. She described the TAFF report as ludicrous, grotesque and ridiculous. As a justification for her criticism of the TAFF report as unreal she frequently referred to the impossibility of all eight babies being born alive and surviving; she accepted that that point was not made in the Carlton programme but she said that it was by then common knowledge in England. She made imputations about Ms Allwood (as to the circumstances in which Ms Allwood's second pregnancy had come to an end) of which there was not even a hint of criticism in the Carlton programme. She said that Ms Allwood and Mr Hudson "were described as a 'magical couple' when they were a nightmare couple". At that point counsel and solicitors acting for the appellants might have been forgiven if they began to think that Ms Byrne was a nightmare witness whose evidence was rapidly dissipating the Judge's sympathy. I can only think that it was the Judge's unfavourable view of Ms Byrne's evidence, and in particular the marked disparity between the strident criticisms which she expressed in her oral evidence, and the much more muted criticisms of the TAFF report expressed or implied in the Carlton programme, which led the Judge to reject the defence of fair dealing for the purpose of criticism or review.

Bearing in mind the cautious approach enjoined in Re Grayan Buildings Services, and with great respect to the Judge (not only because of his great experience in intellectual property law, but also because he was obviously very sensitive towards the human issues involved in this case) I have nevertheless come to the conclusion that the Judge did err in principle in his approach to this defence. It is open to this court to take a different view and for my part I would hold that the defence succeeds.

The Carlton programme as a whole was in my judgment made for the purpose of criticism of works of chequebook journalism in general, and in particular the (then very recent) treatment by the media of the story of Ms Allwood's multiple pregnancy. Mr Clifford, the News of the World and Pro Sieben were on the side of the 'haves'; other newspapers were 'have nots' and the programme vividly depicted how payments to peripheral figures (such as Ms Allwood's former husband and one of Mr Hudson's former girlfriends) could produce material for 'spoilers'. The criticism of the TAFF report was relatively mild because the report itself was (to use one of Ms Byrne's milder expressions) bland. (Mr Clifford said in his evidence that he was going to make sure that Ms Allwood was not going to be confronted or given a hard time in the Pro Sieben interview, and Ms Byrne made an implied comparison with an interview in 'Hello' magazine.) Nevertheless the criticism was not, in my view, limited to what the Judge called the "throw away" comment

"After ten days of muck-raking, a sanitised version of the truth, tightly controlled by Max Clifford."

The programme had already shown shots of Pro Sieben personnel (described as a German cable channel) at work in Mr Clifford's office preparing for the interview with Ms Allwood. Those shots came immediately after film of Mr Clifford climbing the stairs to his office and saying as he did so

"These are the stairs that many a famous foot has trod. Or even an infamous foot has trod. And sometimes they're not famous when they come up the stairs, but by the time they walk down, they're already on the way to being world famous."

Mr Clifford's involvement with the TAFF report was therefore featured prominently, rather than being limited to the single "sanitised version" remark which came at the end of the 30-second extract showing the teddybears. The element of criticism was also strengthened by the final part of the Carlton programme, immediately after the extract, in which Mr Clifford made the very candid remarks which I have already quoted ("We lie all the time. You know, that's, that's what it's about, lying, corruption, deceit").

I have also come to the conclusion that the use of the extract was fair dealing within s. 30(1) (the issue on which the Judge expressed no view). The extract shown was quite short, and it did not include any words spoken by Ms Allwood (the only spoken words audible from the original English soundtrack were Mr Hudson counting, quickly superseded by a voice-over in German). It did not in any realistic sense represent unfair competition with Pro Sieben's exploitation of the rights which it had acquired. It was not (in the words of Henry LJ in Time Warner Entertainments v Channel Four Television) an attempt to dress up infringement of another's copyright in the guise of criticism.

In order to make good the defence under s. 30(1) the appellants have to succeed on the 'sufficient acknowledgement' point also. That is a short, but not an easy point. In my judgment the appellants are entitled to succeed on that point also.

The definition in s. 178 of the 1988 Act has to be read into s. 30(1). What it requires is identification of the author (which is agreed to be Pro Sieben); it is common ground that 'TAFF' shown on the screen throughout identified the title of the work. These requirements are less elaborate than those in s. 77 of the 1988 Act (identification as author or director in respect of moral rights) but I do not derive any real assistance from the contrast.

Mr Silverleaf accepted that identification of an author would normally and naturally be achieved by communicating (by spoken words or writing or both) his correct name or (if the author wrote under a pseudonym) the name by which he was known as an author. But Mr Silverleaf submitted that the television transmission of a logo could also constitute identification for the purposes of s. 178, especially if the logo was the means by which the author of a television programme was accustomed to identify itself, and if the use of the correct name was unlikely to have any particular significance to the bulk of the audience. In this case there was evidence (from Mr Michael von Dessauer, a vice president of Pro Sieben) that his company used the logo (of a stylised '7') as an identification. The fact that the company's correct name and postal address was used on business communications is unsurprising and does not detract from that evidence. There was also evidence that the normal audience for Pro Sieben programmes in England is, for obvious reasons, very small and not representative of the general body of Carlton viewers. I would accept Mr Silverleaf's submissions and hold that the appellants succeed in making good a defence under s. 30(1).

The preceding discussion is directed to the inclusion of the 30-second extract from the TAFF report in the making of the Carlton programme as broadcast on 29 August 1996. Pro Sieben also alleged a separate infringement in the unauthorised copying (and possession of a copy) of the whole of the TAFF report (see paragraphs 11, 15 and 16 of the statement of claim). The defendants adduced no evidence about the circumstances in which the 30-second extract was available to them for use, and Ms Byrne's evidence about this during cross-examination was vague and evasive. The Judge made no finding on this point. It has been submitted for Pro Sieben (but not, I think, strongly pressed) that the defendants have failed to discharge the burden of establishing the purpose for which the whole TAFF report was copied, and so must fail to make good any defence under s. 30 in respect of that infringement. But although the direct evidence is tenuous, I consider that on the balance of probabilities the Judge would have concluded that the TAFF report was copied simply in order to make it available to Ms Byrne so that she could consider using an extract from it. It was therefore copied for the same ultimate purposes as those for which the Carlton programme was made and broadcast.

That is sufficient to lead to the conclusion that this appeal should be allowed. But if it were necessary I would also allow the appeal under s. 30(2). I consider that Ms Allwood's multiple pregnancy, its progress and its eventual outcome were on any view current events of real interest to the public. The volume and intensity of media interest was sufficient to bring the media coverage itself within the ambit of current events. The fact that Mr Clifford had sold an interview (whether sanitised or not) to German television for £30,000 (misstated in the Carlton programme as £50,000) was an event of limited and ephemeral interest, but it was in my view a current event. The Judge seems to have come to a different view, and to have rejected it as fair dealing, because of the firm view which he had formed as to "the message Ms Byrne was trying to get over in her programme." I differ from the Judge. Substantially for the same reasons as I have given in relation to s. 30(1), I consider that the use of the extract was fair dealing and that the defence under s. 30(2) should succeed.

I would therefore allow this appeal.

Lord Justice Henry:

I agree.

Lord Justice Nourse:

I also agree.

Order: appeal allowed with the costs of the appeal and the action (to include the costs of the inquiry), to be taxed if not agreed; judge's order discharged and action dismissed; order made for payment out together with accrued interest; appellant defendants released from their undertaking; leave to appeal to the House of Lords refused; counsel to lodge an agreed minute of order.