Copyright as Censorship
The implications for US media are complex. American copyright law is clear, according to Floyd Abrams, a leading First Amend ment attorney, that the federal government has no copyright on its documents. "The theory of copyright protection is to encourage people to creativity by protecting their creations," he said. "It's an inducement the government does not need." If, for example, Nixon had claimed that his "enemies list" was copyrighted and that the newspapers that published it owed him damages, he wouldn't have been able to collect.
On the other hand, American media might be vulnerable to claims of copyright infringement by the British government. How ever, "it's unlikely an Amer ican court would support such a claim," Abrams says, "because it seems at odds with First Amendment principles. A number of courts here have refused to enforce British libel judgments for that reason. It's even less likely that this kind of copyright judgment would be enforceable."
But assuming the British courts accept the argument that their government documents are copyrighted, Abrams says, "they would certainly have a pretty good shot at getting most countries to enforce their judgments." Thus while the French, for example, have refused to extradite Shayler for criminal prosecution, they are much more likely to enforce the civil claim that Shayler must pay damages--in this case, to the British government.
American publications distributed in Britain--like The Nation--could be sued by the British government for copyright violation in that country. Even if there is no distribution of a foreign publication in Britain, a US publication with a website--like thenation.com--could be sued in Britain for copyright violation on the website if authorities could find a way to serve the owners of the website with legal process. Under US law, a claim of copyright violation merits prior restraint of publication--one of the very few exceptions to the First Amendment prohibition on prior restraint.
Shayler is being defended by Liberty, the British counterpart to the ACLU, and Liberty director John Wadham. Because Brit ain lacks a Bill of Rights guaranteeing freedom of speech and the press, Wadham argues, Shayler is protected by Article 10 of the European Convention on Human Rights, guaranteeing free dom of expression. It will become enforceable under British law in October.
The British press has been outspoken in condemning Tony Blair's government for the latest moves against Shayler. One of the most eloquent voices has been that of Peter Preston, who was editor of The Guardian from 1975 to 1995 and is currently chairman of the British office of the International Press Institute. Preston denounced the legal "harassment" of the press, which he said was intended to "make other reporters and other papers put David Shayler on the spike of forgetfulness," and was intended as a "general retribution to deter once and future whistleblowers." He pointed to repressive regimes around the world that imprisoned or killed dozens of reporters last year for revealing official crimes--"And what do they say when our ambassadors or visiting delegations of protest come to call? That why, dear sir, are you so upset? That we are doing nothing that you do not do yourself."
When Shayler first claimed MI6 had planned a 1996 assassination attempt on Qaddafi, Foreign Secretary Robin Cook dismissed the claim as "pure fantasy." But the Sunday Times of London proclaimed Shayler vindicated in February when a website published top-secret documents showing that MI6 had advance knowledge of the attempt, in which several innocent bystanders are believed to have been killed.