Hubbard v Vosper
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE MEGAW,LORD JUSTICE STEPHENSON,LORD JUSTICE SALMON,LORD JUSTICE STAMP |
| Judgment Date | 19 November 1971 |
| Neutral Citation | [1971] EWCA Civ J1119-4 |
| Judgment citation (vLex) | [1971] EWCA Civ J1119-1 |
| Date | 19 November 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J1119-1
The Master of The Rolls (Lord Denning)
Lord Justice Megaw and
Lord Justice Stephenson.
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from order of Mr. Justice Kilner Brown on 4th October, 1971.
Mr. LEONARD CAPLAN, Q. C., and Mr. S. LEVENE (instructed by Messrs. Davidson Doughty & Co.) appeared on behalf of the Appellant Defendants.
Mr. PETER PAIN, Q. C., and Mr. A. MARTIN (instructed by Messrs. Lawrence Alkin & Co.) appeared on behalf of the Respondent Plaintiffs.
On 9th September a book was published called "The Mind Benders. It was written by Mr. Cyril Vosper and published by Neville Spearman Ltd. It was very critical of the cult of Scientology.
On the same day the Church of Scientology of California issued a writ. They went to the Judge and obtained ex parte an interim injunction to restrain the publication of the book. Later on Mr. Lafayette Ronald Hubbard was added as plaintiff. After hearing both sides, Mr. Justice Kilner Brown continued the injunction, but, as the matter involved the public interest, he hoped it would be taken to appeal.
"Scientology" is a word invented by Mr. Hubbard himself. He has invented a lot of other words too which he has set out in a Dictionary of Scientology. He defines it in this way:
"SCIENTOLOGY: An applied religious philosophy dealing with the study of knowledge, which, through the application of its technology can. bring about desirable changes in the conditions of life.
In addition to the Dictionary, he has written many books about this philosophy or cult. They include Axioms and Logics", "Introduction to Scientology Ethics", "Scientology 8-80", Scientology 8-8008", and "Scientology - A History of Man". All of them contain a large number of his invented words. They cannot be understood by anyone who is not versed in the cult. In addition, Mr. Hubbard has written numerous bulletins and letters which have been circulated to members of the cult. These give is many descriptions of the workings of Scientology.
Mr. Hubbard and his adherents occupy a big house near East Grinstead called Saint Hill Manor. They hold courses for those who wish to study Scientology and to acquire proficiency in it. Some of these course, on their own admission, "can be dangerous in untrained hands.
Mr. Vosper was a member of the Church of Scientology for 14 years. He worked at Saint Hill Manor as Secretary, and such like. In 1967 he put his name down for a course which the authorities regarded as confidential. It was called the Saint Hill Special Briefing Course. He paid a fee of £150 and signed an undertaking "relating to higher levels of knowledge. He undertook (a) to use this knowledge for Scientology purposes only: (b) to refrain from divulging level VI materials to those not entitled to receive them or to discuss them within the hearing of such persons.
Mr. Vosper did not, however, complete the course. He became disillusioned with Scientology. Those in authority thought that he was actively seeking to suppress or damage Scientology. So in September 1968 they declared him to be a "suppressive person, which meant that he was considered "fair game": and they declared him to be in a condition of "enemy". In order to understand what that mean, you have to look at the books. It means that in the eyes of Scientologists, Mr. Vosper had no right to self, possessions or position": and that any scientologist could take any action against him with impunity.
So Mr. Vosper left Saint Hill Manor. He wrote "The Mind Benders". It said on the jacket that it was: The first ever investigation into the cult of Scientology by an ex-Scientologist of 14 years' service". It is this book of which the plaintiffs now seek to prevent publication. They do it on two grounds: first, infringement of copyright: secondly, breach of confidence. I. INFRINGEMENT of COPYRIGHT.
Whatever one may think of Mr. Hubbard's books, letters and bulletins, they are the subject of literary copyright. His name appears as author on every book, letter and bulletin. So he is presumed to be the owner of the copyright in them.
In writing "The Mind Benders. Mr. Vosper has made free use of Mr. Hubbard's books, letters and bulletins. He has taken very little from some, but from others he has taken very substantial parts. For instance, he has taken quite big extracts from the "Introduction to Scientology Ethios", and put them into his book. He has also taken substantial parts of the letters and bulletins. The parts taken are so substantial that Mr. Vosper will be guilty of infringement of copyright unless he can make good his defence. And his defence is that his use of them is fair dealing within section 6(2) of the Copyright Act, 1956. This says that:
"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."
The last words of the section are satisfied. At the end of his book, Mr. Vosper said: "Criticisms are used from the following books by L. Ron. Hubbard - setting them out.
The question is, therefore, whether Mr. Vosper's treatment of Mr. Hubbard's books was a "fair dealing" with them "for the purposes of criticism or review". There is very little in our law books to help on this. Some cases can be used to illustrate what is not "fair dealing". It is not fair dealing for a rival in the trade to take copyright material and use it for his own benefit. Such as when the "Times" published a letter on America by Rudyard Kipling. The St. James Gazette took out half-a-dozen passages and published them as extracts. This was held to be an infringement, see Walter v. Steinkopff (1892) 3 Ch. 489. So also when the University of London published examination papers. The Tutorial Press took several of the paoers and published them in their own publication for the use of students. It was held to be an infringements see University of London v. University Tutorial Press. 1916 2 Ch. 601.Likewise when a band played 20 bars of "Colonel Bogey" - to entertain hearers-it was not fair dealing: see Hawkes v. Paramount Films 1934 Ch, 593.
In this case Mr. Vosper has taken considerable extracts from Mr. Hubbard's works and has commented freely upon them. I will give some illustrations. On page 28 of Mr. Vosper's book, he gives a quotation from Mr. Hubbard's "Axioms and Logics". I will underline the words taken:
"Scientology Axium One is the assumption upon which the rest of the subject stands. Life is basically a static" and this is further defined - " a Life Static has no mass", no motion, no wavelength, no location in space or time. It has the ability to postulate and to perceive."
Hubbard has redefined in modern, scientific-sounding terms the ancient Hindu Vedanta concept of a soul or spirit that, whilst appearing to inhabit the physical universe is of a distinctly separate order."
Another illustration is on page 141 of Mr. Vosper's books
"Hubbard in his book Introduction, to Scientology Ethics, 1968' states: A Suppressive Person or Group becomes "Fair Game". By Fair Game is meant, without right for self. possessions or position, and no Scientologist may be brought before a Committee of Evidence or punished for any action taken against a Suppressive Person or Group during the period that person or group is 'fair game'
Would a Scientologist who takes it into his head to murder a declared Suppressive Person be regarded by - Scientologists as fully within his rights? That murder has not occurred as far as is known, is not to the credit of L. Ron Hubbard's Ethics but more to the credit of police and courts of the old-fashioned, repressive type."
Those illustrations enable me to state the conflicting arguments. Mr. Pain for Mr. Hubbard says that what Mr. Vosper has done Is to take important part of Mr. Hubbard's book and explain them and amplify them. That, he says, is not fair dealing. Mr. Caplan for Mr. Vosper says that Mr. Vosper has, indeed, taken important parts of Mr. Hubbard's book, but he has done it so as to expose them to the public, and to criticise them and to condemn them. That, he says, is fair dealing.
It is impossible to define what is "fair dealing"- It must be a question of degree. You oust 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.
Mr. Pain took, however, another point. He said that the defence of "fair dealing" only avails a defendant when he is criticising or reviewing the plaintiff's literary work. It does not avail a defendant, said Mr. Pain, when he is criticising or reviewing the doctrine or philosophy underlying the plaintiff's work. In support of this proposition, Mr. Pain relied on the words of Mr. Justice Romer in British Oxygen Co. Ltd. v. Liquid Air Ltd. (1925) 1 Ch....
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