Thursday, October 28, 2010

Wikileaks case: The Intellectual Property Aspect

Lately, with the release of classified US document wrt the Iraq and Afghanistan Wars there have been a lot of musing about whether Wikileaks can legally do so. One of the issues which does come up is that of State sovereignty- public release of classified documents of the State indeed raises the question whether sovereignty of the State has been infringed. However, assuming even though such infringement has happened, the problem which one faces is the persecution of Wikileaks, and it is this question of jurisdiction that has largely been in discussion considering Julian Assange has been elusive. Though another aspect which has largely been ignored is the intellectual property rights infringement aspect.
It is clear that some insider in the Pentagon has been leaking these documents via the Wikileaks forum- the question is, whether this insider when caught can be prosecuted on the basis of copyright infringement of the documents which the US State essentially had rights in. In this regard, one can look at English case of Fraser v. Evans [1969] 1 All ER 8(CA), wherein the defendant had made some papers public , which he was given access to, in confidence, by the Greek government. Lord Denning herein, remarked that copyright infringement could not be held in a "matter of public concern", and "only making a fair comment in public interest". So in the instant case, the point of determination is whether the documents released were indeed in public interest- one might a well argue so. However, comes the question of "fair comment in public interest." In the instant case, it was a direct reproduction of the documents, rather than a fair comment...would that make a difference?
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