BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY (Ch)
INTELLECTUAL PROPERTY ENTERPRISE COURT
7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| RAJINDER TUMBER
|- and -
|(1) INDEPENDENT TELEVISION NEWS LIMITED
(2) ITV PLC
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
MS. CHRISTINA MICHALOS (instructed by Charles Russell Speechlys LLP) for the Defendants
Crown Copyright ©
HIS HONOUR JUDGE HACON :
"14.4 The claimant granted an implied licence to ITN to publish the Work in connection with any news broadcast or article about the Claimant by sending the Work to ITN and thereby impliedly authorising ITN to publish the Work. The Claimant granted an implied licence by sending the Work without qualification to Ms. Nunn when he well knew (a) Ms. Nunn was a journalist employed by ITN; (b) Ms. Nunn had requested a copy of the poem for and on behalf of ITN; and (c) ITN intended to write an article and/or create a news broadcast about the Claimant and the Work."
14.6 says this:
"14.6 It is admitted that Ms. Nunn did not expressly state that ITN intended to reproduce the Work or part of the Work in the Article or Broadcast. ITN will rely on custom and practice that if material is sent to a news organisation without qualification or reservation, it is understood it is for publication. This is evidenced by the custom and practice legal letters to media organisations being routinely marked 'not for publication'."
"Ms. Nunn made no representation that the reason for her request was solely to assist in preparation for the Interview and/or the Article. Ms. Nunn would have merely asked the Claimant to send a copy of the Work which the Claimant agreed to do."
"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."
"In Ashdown Lord Phillips cited with approval at  the following summary of the law in Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs (3rd edition, 2000) at 20.16:
'It is impossible to lay down any hard-and-fast definition of what is fair dealing, for it is a matter of fact, degree and impression. However, by far the most important factor is whether the alleged fair dealing is in fact commercially competing with the proprietor's exploitation of the copyright work, a substitute for the probable purchase of authorised copies, and the like. If it is, the fair dealing defence will almost certainly fail. If it is not and there is a moderate taking and there are no special adverse factors, the defence is likely to succeed, especially if the defendant's additional purpose is to right a wrong, to ventilate an honest grievance, to engage in political controversy, and so on. The second most important factor is whether the work has already been published or otherwise exposed to the public. If it has not, and especially if the material has been obtained by a breach of confidence or other mean or underhand dealing, the courts will be reluctant to say this is fair. However this is by no means conclusive, for sometimes it is necessary for the purposes of legitimate public controversy to make use of 'leaked' information. The third most important factor is the amount and importance of the work that has been taken. For, although it is permissible to take a substantial part of the work (if not, there could be no question of infringement in the first place), in some circumstances the taking of an excessive amount, or the taking of even a small amount if on a regular basis, would negative fair dealing."
"Article 14 of [the Enforcement Directive] precludes national legislation providing flat-rates which, owing to the maximum amounts that it contains being too low, do not ensure that, at the very least, page 13 of 15 that a significant and appropriate part of the reasonable costs incurred by the successful party are borne by the unsuccessful party.
Article 14 of [the Enforcement Directive] must be interpreted as precluding national rules providing that reimbursement of the costs of a technical adviser are provided for only in the event of fault on the part of the unsuccessful party, given that those costs are directly and closely linked to a judicial action seeking to have such an intellectual property right upheld."