Recent disputes between journalists and news organisations about stories being lifted and re-jigged highlight one of the oddities of copyright law – that what copyright protects is not news, or the information in a news report, but the manner or form in which the information a report contains is imparted, writes Mike Dodd, left.
It was said more than a century ago, in Springfield v Thame ((1903 89 LT 242) that “there is no copyright in news itself, although there is copyright in the form in which it is conveyed”.
This view still appears to be good law.
In Springfield v Thame a journalist sent a newspaper a report of an incident in which a man drowned. A sub-editor re-wrote the piece, reducing the 83-line original to an 18-line account, and thus making it a different report.
The defendant, who ran a different newspaper, had copied the report which appeared in the first newspaper, and published it after making only slight further alterations.
Springfield sued the defendant – and lost, because it was held that the author or the first published article was the sub-editor at the first newspaper who had re-written his work, and that in any event there was no copyright in the news itself.
This approach was followed in Express Newspapers Ltd v News (UK) Ltd ( 1 WLR 1320;  3 All ER 376;  FSR 36;  FSR 359).
In this bizarre tit-for-tat copyright battle, the Daily Express sued the now defunct Today newspaper over its lifting of quotes from an exclusive interview with Pamella Bordes, an escort girl who at the time had been involved in a political and social scandal.
Today, in its turn, sued Express Newspapers over a story which appeared in the Daily Star and had been pirated from its own exclusive interview about the Royal family with Miss Marina Ogilvy.
Sir Nicholas Browne-Wilkinson, the Vice-Chancellor, declined to find that copyright could subsist in the substance of a news story, but said there would have been an infringement of copyright if a substantial part of the original reporter’s words had been taken verbatim.
“I would hesitate a long time before deciding that there is copyright in a news story which would be infringed by another newspaper picking up that story and reproducing the same story in different words,” he said.
“Such a conclusion would strike at the very root of what I think is the practice of the national press, namely to search the columns of other papers to find stories which they have missed and then using the story so found in their own newspaper by re-writing it in their own words.
“If it were the law that such practice constituted breach of copyright, the consequences, as it seems to me, would be that a paper that obtained a scoop from a confidential source would obtain a monopoly on that piece of news.
“That would not be in the public interest as it would prevent the wider dissemination of the news to the public at large.”
He added: “I think, therefore, that it is very improbable that the courts would hold that a newspaper could, by reason of the law of copyright, obtain a monopoly on a news story as opposed to copyright in the actual words used by its reporter in reporting that story.”
Given the principle that there is no copyright in news, the decision reached by District Judge Ivan Ranson at Manchester County Court in the Manchester Evening News case seems hard to explain.
In neither of these cases had the publications actually copied the words of the original stories.
The Rochdale Online website conceded that it was not claiming that the MEN copied the article verbatim – it has said that “it would be a very foolish reporter who did so” – but that the key points were used to write a piece that “mimics” its original.
Rochdale Online argued that the breach occurred because the key points of its original story were used, without permission.
But, if one follows the decision in the Express Newspapers case, that is irrelevant – the question for the court would not be whether information was taken, but whether the information was conveyed in the same manner as in the original article.
Rochdale Online had cited Mrs Justice Proudman’s decision in Newspaper Agency Ltd v Meltwater Holding BV ((2010) EWHC 3009 (Ch)) drawing on the ruling by the European Court of Justice ruling in Infopaq International A/S v Danske Dagblades Forening (Case C-5/08;  FSR 20) that a single extract of 11 consecutive words from a newspaper article could be protected by copyright “if that extract contains an element of the work which, as such, expresses the author’s own intellectual creation”.
It also cited Ladbroke v William Hill ( 1 All ER 465), in which the House of Lords stated that a “substantial part” was a “qualitative not a quantitative” test, and that it was a matter of fact and degree, arguing that even copying a small piece of text could be infringement if that part was important in relation to the whole work.
But central to the decision in the Infopaq case was the “copying” of a single 11-word extract.
It was notable, however, that the order District Judge Ranson made states that he had not heard from the MEN or Trinity Mirror, its owner.
The fair dealing defence in section 30 (2) was considered in PCR Ltd v Dow Jones Telerate Ltd ( EMLR 407;  FSR 170; (1998) 21(4) IPD 21037), in which the defendant news agency was held to have infringed the plaintiff’s copyright in three reports it had produced on the cocoa market.
Mr Justice Timothy Lloyd said the defendant’s reporter had copied a substantial part of the plaintiff’s reports, taking the “most important and interesting parts”, as well as quotations.
The fair dealing defence depended, among other things, on how much material was taken, and its significance.
The test of fairness required a balance to be struck between the rights of the copyright owner and those of the news reporter. The reporter in this case had taken more than was reasonable and appropriate – too much to satisfy the test of fairness, he said.