Trade

Copyright in typographical arrangement - facsimile copies made of individual articles in newspapers - copies not infringing publisher's copyrightNewspaper Licensing Agency Ltd v Marks and Spencer plc: HL (Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord Hoffmann, Lord Hope of Craighead and Lord Millett): 12 July 2001The defendant subscribed to an agency which provided cuttings of newspaper articles.

The agency was licenced by the claimant to provide cuttings on a commercial basis.

The defendant made further copies of the same cuttings and distributed them to individuals within its organisation.The claimant sought an injunction to restrain the defendant from doing so on the ground that the defendant had no licence to make such further copies and, by doing so, was infringing the claimant's copyright in the typographical arrangement of the articles.

The judge granted the injunction but the Court of Appeal reversed his decision.

The claimant appealed.Geoffrey Hobbs QC (instructed by Herbert Smith) for the claimant; Michael Silverleaf QC and Mark Vanhegan (instructed by Heather MacRae) for the defendant.

Held, dismissing the appeal, that when determining what constituted the 'published edition' for which copyright in the typographical arrangement subsisted, pursuant to section 8 of the Copyright, Designs and Patents Act 1988, the frame of reference was the language of the publishing trade; that, accordingly, the 'published edition' was the product which the publisher offered to the public which in the case of a newspaper was the whole newspaper not the individual articles appearing in it; that when determining whether a 'substantial part' of the 'published edition' had been copied for the purposes of section 16(3)(a) of the Act the question was whether there had been copying of sufficient of the relevant skill and labour which had gone into the edition's typographical arrangement; that in the case of a modern newspaper, the skill and labour devoted to typographical arrangement was principally expressed in the overall design; that it was difficult to think of the skill and labour which had gone into the typographical arrangement of a newspaper being expressed in anything less than a full page; that, accordingly, a facsimile copy of an article from a newspaper which gave no indication of how the rest of the page was laid out was not a copy of a substantial part of the newspaper; and that, since none of the cuttings copied by the defendant sufficiently reproduced the layout of any page, there was no infringement of the claimant's copyright in the typographical arrangement of the newspapers.

(WLR)