''Hubbard v Vosper'',

972 Year 972 ( CMLXXII) was a leap year starting on Monday of the Julian calendar. Events By place Byzantine Empire * Spring – Emperor John I Tzimiskes divides the Bulgarian territories, recently held by the Kievan Rus', into six ...

2 Q.B. 84, is a leading English copyright law case on the defence of

fair dealing Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations. Fair dealing is an e ...

. The

Church of Scientology The Church of Scientology is a group of interconnected corporate entities and other organizations devoted to the practice, administration and dissemination of Scientology, which is variously defined as a cult, a business, or a new religiou ...

sued a former member,

Cyril Vosper Cyril Ronald Vosper (7 June 1935 – 4 May 2004) was an anti-cult leader, former Scientologist and later a critic of Scientology, deprogrammer, and spokesperson on men's health. He wrote '' The Mind Benders'', which was the first book on Scie ...

, for copyright infringement due to the publication of a book, '' The Mind Benders'', criticizing

Scientology Scientology is a set of beliefs and practices invented by the American author L. Ron Hubbard, and an associated movement. It is variously defined as a scam, a Scientology as a business, business, a cult, or a religion. Hubbard initially develo ...

. The Church of Scientology alleged that the books contained material copied from books and documents written by

L. Ron Hubbard Lafayette Ronald Hubbard (March 13, 1911 – January 24, 1986) was an American author and the founder of Scientology. A prolific writer of pulp science fiction and fantasy novels in his early career, in 1950 he authored the pseudoscie ...

, as well as containing

confidential Confidentiality involves a set of rules or a promise sometimes executed through confidentiality agreements that limits the access to or places restrictions on the distribution of certain types of information. Legal confidentiality By law, law ...

information pertaining to Scientology courses. Vosper successfully defended the claim under the fair dealing doctrine, with the

Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...

deciding unanimously in his favour. The judgment given by

Lord Denning Alfred Thompson Denning, Baron Denning, (23 January 1899 – 5 March 1999), was an English barrister and judge. He was called to the Bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when he w ...

clarified the scope and content of the fair dealing defence.

Background

On 9 September 1971 ''The Mind Benders'', a book critical of Scientology written by Cyril Vosper, a former scientologist of 14 years, was published by

Neville Spearman Neville Spearman Armstrong (20 October 1913 – September 2008) was a British soldier, literary agent, and publisher. In the 1940s and early 1950s he was in partnerships with others, then from 1955 he operated his own publishing company called N ...

. The Church of Scientology obtained an interim

injunction An injunction is an equitable remedy in the form of a special court order compelling a party to do or refrain from doing certain acts. It was developed by the English courts of equity but its origins go back to Roman law and the equitable rem ...

on the same day to restrain publication of the book. The book contained many extracts from the works of L. Ron Hubbard, including books such as ''Axioms and Logics'' and ''Introduction to Scientology Ethics''. These extracts were often accompanied by criticism and explanations in Vosper's book. Also included in the book was information obtained by Vosper through Scientology courses, which the Church of Scientology claimed was confidential by virtue of a declaration signed by Vosper not to divulge any of the information to outsiders - specifically to those who were not " Clear". At issue was whether the extracts in ''The Mind Benders'' constituted copyright infringement, and whether the information published in the book amounted to an actionable breach of confidence. The lower court granted the injunction to prevent publication of the book, finding that there was a strong case for infringement.

Reasons of the court

A panel of three judges in the Court of Appeal unanimously allowed the appeal, and lifted the injunction against publication of the book.

Fair dealing defence

Lord Denning, writing the leading judgment for the court, found that the defence of fair dealing applied to Vosper's book under section 6(2) of the

Copyright Act 1956 The Copyright Act 1956 ( 4 & 5 Eliz. 2. c. 74) was an act of the Parliament of the United Kingdom which received its royal assent on 5 November 1956. The Copyright Act 1956 expanded copyright law in the UK and was passed in order to bring copyri ...

, which said:

No fair dealing with a literary, dramatic or musical work shall constitute an infringement of the copyright in the work if it is for purposes of criticism or review, whether of that work or of another work, and is accompanied by a sufficient acknowledgment.

In clarifying the doctrine of fair dealing, Lord Denning considered previous case law, and described a

legal test In law, a test is a commonly applied method of evaluation used to resolve matters of jurisprudence. In the context of a trial, a hearing, discovery, or other kinds of legal proceedings, the resolution of certain questions of fact or law may hinge ...

for determining what would constitute a valid use of the defence:

It is impossible to define what is "fair dealing." It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide. In the present case, there is material on which the tribunal of fact could find this to be fair dealing.

Upon consideration of the evidence, Lord Denning found that the book was a fair dealing of the source material, rejecting the argument that Vosper was criticizing not the works ''per se'', but was instead criticizing the underlying subject matter. He found that criticism of the book and criticism of the subject matter were indistinguishable, and that this would not in itself cause the fair dealing defence to fail. Lord Megaw agreed, and added in his concurring judgment that it may be possible to invoke the fair dealing defence even if a substantial part or the entirety of the original work was reproduced, noting that the proportion of the work taken must be weighed against the nature and purpose of the reproduction.

Breach of confidence

The Court of Appeal rejected the argument that confidential information was unfairly used in Vosper's book. Lord Denning noted that there was very little evidence pointing to the use of such confidential information, but that even if the information was used, there may be some circumstances such as these where the public interest may outweigh the confidentiality of the information.

Aftermath

A further attempt by the Church of Scientology to appeal the case to the

House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...

was dismissed on 9 February 1972. The

hardcover A hardcover, hard cover, or hardback (also known as hardbound, and sometimes as casebound (At p. 247.)) book is one bookbinding, bound with rigid protective covers (typically of binder's board or heavy paperboard covered with buckram or other clo ...

edition of the book was released after the ruling, while a

paperback A paperback (softcover, softback) book is one with a thick paper or paperboard cover, also known as wrappers, and often held together with adhesive, glue rather than stitch (textile arts), stitches or Staple (fastener), staples. In contrast, ...

edition, titled '' The Mind Benders: The Book They Tried to Ban'' was published in 1973, including a reference to the litigation in the appendix. The Church of Scientology also attempted to ban the book in

Canadian Canadians () are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of their being ''C ...

libraries by threatening the sue for

libel Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions ...

. Several libraries were subsequently sued when they refused to remove the books.
html version

Significance

The case, and especially the judgment of Lord Denning, has been frequently cited as the leading interpretation of the fair dealing defence in the

United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...

. In Canada, Denning's test for fair dealing was substantially adopted and expanded by the

Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...

in ''

CCH Canadian Ltd. v. Law Society of Upper Canada ''CCH Canadian Ltd v Law Society of Upper Canada'', 0041 SCR 339,''CCH Canadian Ltd. v. Law Society of Upper Canada'', 0041 SCR 339 'CCH''/ref> 2004 SCC 13, is a landmark Supreme Court of Canada case that established the threshold of originality a ...

''.''CCH Canadian Ltd. v. Law Society of Upper Canada'',

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1 SCR 339 Chief Justice

Beverley McLachlin Beverley Marian McLachlin (born September 7, 1943) is a Canadian jurist and author who served as the 17th chief justice of Canada from 2000 to 2017. She is the longest-serving chief justice in Canadian history and the first woman to hold the ...

separated the fair dealing test into six factors based on Denning's judgment: # The purpose of the dealing # The character of the dealing # The amount of the dealing # Alternatives to the dealing # The nature of the work # The effect of the dealing on the work

References

{{Reflist, refs= Hubbard v Vosper

2 QB 84

External links

Full judgment of the Court of Appeal

1997 Electronic edition of ''The Mind Benders''
1971 in case law United Kingdom copyright case law 1971 in the United Kingdom Scientology litigation