The Privy Council decision in Maharaj v Petroleum Company of Trinidad and Tobago Ltd,  UKPC 21 (20 May 2019) has shone a Guaracara-esque spotlight onto Petrotrin’s decision to abandon its $97 million USD claim against Malcolm Jones.
According to the Court, based on the evidence available to them, ‘there are some grounds for thinking that the decision to abandon the claim against Mr Jones may have been influenced by political factors’. (ibid., para. 47)
That five Law Lords would make such a statement is remarkable and telling.
Unsurprisingly, the Government has since sought to distance itself from that decision. However, as the observation about possible political interference was made by an objectively ‘disinterested’ entity, the usual tit-for-tat with the Opposition could not work this time. A new strategy was required.
In a press conference held earlier yesterday, the AG sought to chastise an edited version of the Privy Council proceedings being shared on social media. The edited version highlighted the oral arguments at the Privy Council concerning the possible political interference at play.
The AG indicated that ‘as a lawyer with a masters in copyright law’ he intended to report the video to the Privy Council as being a breach of the terms and conditions set out on the Privy Council site. Namely:
“Video footage of past proceedings is made available on specific terms which users accept before they first access a video from the archive. The video footage is made available for the sole purpose of the fair and accurate reporting of the judicial proceedings of the UK Supreme Court and the Judicial Committee of the Privy Council.
“The re-use, capture, re-editing or redistribution of the video footage in any form is not permitted. You should be aware that any such use could attract liability for breach of copyright or defamation and, in some circumstances, could constitute a contempt of court.”
The AG also stated that ‘every time you re-publish [the edited video] you take authorship of the breach of copyright’.
With respect, I must disagree with the AG’s reliance on copyright law and the Privy Council’s terms and conditions to squelch dissent and circulation of the edited video, even if such dissent is politically motivated.
First, the terms and conditions on the Privy Council’s site are so-called ‘browse-wrap’ terms. One does not have to affirmatively click ‘I accept’ before acceding to them. The enforceability of such terms is not clear in the foreign jurisprudence.
Second, even if such terms were enforceable, a thorny conflict of laws situation arises. Trinidad and Tobago’s Copyright Act expressly states that “no protection shall extend… to political speeches and speeches delivered in the course of legal proceedings.” (ibid., sub-section 7 (1) (c)). It is therefore arguable that the exchanges between counsel and their Lordships are not protected by copyright.
Furthermore, Article 2 (8) of the Berne Convention for the Protection of Literary and Artistic Works—which Trinidad and Tobago has long acceded to—also provides that the “protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.”
The proceedings arguably qualify as ‘news of the day’, particularly as they relate to ongoing allegations of political interference and/or access to information.
Third, even if it could be said that the proceedings are subject to copyright. It could be argued that the edited version of the proceedings is justified under the news reporting provisions of the Copyright Act.
Sub-section 13 (b) provides that “the following acts shall be permitted in respect of a work without the authorisation of the owner of copyright… for the purpose of reporting current events, the reproduction and the broadcasting or other communication to the public of short excerpts of a work seen or heard in the course of such events, to the extent justified by the informatory purpose.”
Put simply, the proceedings were edited to specifically show possible suggestions of political interference and therefore tailored to that ‘informatory purpose’.
In the end, modern copyright law was designed to promote the ‘encouragement of learning’ (see, the Statute of Anne 1710) and to balance the interests between authors and users. It was never designed as a tool of censorship, especially on matters of serious public importance and current debate.