New copyright regulations could make life difficult for biographers and journalists writing profiles of public figures, according to media lawyers. Before the Copyright and Related Rights Regulations 2003 (which implements Directive 2001/29) came into force last month, a biographer could use extracts from letters, diaries and books without a licence provided that it was for the purposes of criticism and review, and there was sufficient acknowledgement given. But now a biographer will need to check if the documents have been published before.
“A biographer of a poet could quote from others’ reviews of the work or from letters criticising or explaining the work without permission,” explained Andrew Hobson, an intellectual property partner at Reynolds Porter Chamberlain. “Under the new rules, he will need permission from the authors of the letters or from their estates – unless he can show that they have been published previously, say in another biography, or if they are available in a library.”
The change in the law applies equally to journalists, although they may be able to show that they are reporting current affairs. “In order to publish previously unseen letters from Diana Spencer, a journalist would have to show that it was necessary to do so to report current affairs,” said Hobson. “This may be difficult to do in a general profile of her as she has been dead for some years. Previously an extract could have been quoted freely if it was being done, for example, to show her state of mind when writing another letter.”
If the biographer prints previously unpublished material then its author could demand a percentage of the biography’s royalties. In extreme situations the courts could impose injunctions requiring the withdrawal of the publication. According to Hobson: “If the courts take too interventionist an interpretation of the legislation than we run the risk of importing from Europe the lower level of transparency that exists in public life in countries such as France.”