Copyright in a murder case

Some unusual discussions on copyright infringement were raised last month following the sad case of murdered infant Declan Hainey in Scotland.

Declan’s body was found in March 2010, having been hidden for some months by his mother Kimberley Hainey. In December 2011 Kimberley Hainey was convicted of her son’s murder, and last month she was given a life sentence with a minimum term of 15 years. 

Declan Hainey

In reporting the story the BBC wanted to use photographs of Declan which had been produced at trial. However, of the seven photos which the BBC wished to use in whole or in part, all were taken by Kimberley Hainey, who therefore owned the copyright in them. One of the issues surrounding their use was, therefore, that her permission would normally be required to publish them. 

The BBC applied and was refused permission from the Scottish authorities to publish the photographs. It applied again, relying on two clauses in the Copyright, Designs and Patents Act 1988 (CDPA). The first was s45, which states:

"(1) Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.

(2) Copyright is not infringed by anything done for the purposes of reporting such proceedings; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings."

Second was s171(3):

"Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright on grounds of public interest or otherwise."

The judge found that the BBC’s intended use of the images for illustrating reports of ‘judicial proceedings’ was legitimate under s45. Additionally it found that such publication was in the ‘public interest’ and therefore that s171 also applied. 

However, the judge denied the BBC permission to publish images of Declan with his grandmother Elizabeth Rodden. He stated that in that instance Rodden’s right to privacy under Article 8 of the European Convention on Human Rights must take precedence over the BBC’s Article 10 right to freedom of expression, despite the BBC’s argument that ‘publication of a photograph of the child with his grandmother would heighten legitimate public interest in case’.

Read more about the case on the IPKat blog here.