Prince Charles and Fair Use

For those who take offense at the University of Chicago facebook project, there is always Prince Charles, who threw over Princess Diana for Camilla. Some would say it shows the power of true love over youth, but whatever the truth, the Prince was the plaintiff in a successful copyright - right of privacy suit brought over journals recounting his official trips. The decision, which was handed down on March 17th is by Justice Blackburne of the High Court of Justice, Chancery Division.Here is a link to it.

The defendant was the publisher of the newspaper The Mail on Sunday. Defendant published articles that contained excerpts of a journal Charles had written on his trip to Hong Kong from June 27 to July 3, 1997 on the occasion of the turnover of the territory. Charles claimed that his journals set out his private thoughts and impressions of the trip. He didn't keep them to himself, though. There is a dispute about the number of people he shared them with, the number ranging from 60 to 75, all in government positions (see paragraphs 22-26 of the opinion), and a dispute about their confidential nature. The journals themselves are a mix of the mundane: complaints about sitting in club class airplane seats rather than first class; to sage advice he felt compelled to give to Tony Blair; to the controversial, especially a remark about "the group of appalling old waxworks" among the Chinese delegation. This final remark served as the front page headline of the defendant's article, which trumpeted: "Scathingly candid remarks Prince Charles has made about the Beijing leadership can be revealed today."

There is no doubt the article dealt with questions of public interest, but in granting the equivalent of summary judgment to Charles on both the privacy and copyright claims, the court felt that irrelevant; to the court, it was Charles' personal impressions and "musings" that were significant. One wonders why those impressions and musings were not also a matter of public interest. Britain's fair dealing provision has a current news reporting provision and a criticism and review provision, but neither were held applicable, the former because the court read into it the violation of the breach of privacy, the latter because of the unpublished nature of the journals.

Judge Leval has written that in some circumstances, the unpublished nature of a work may be weighed in favor of fair use because unauthorized disclosure may be the only way the material will see the light of day. I doubt a U.S. court would come out differently, but I think the question would be closer.