[Editor's note: What follows is a detailed summation of a case from a non-US jurisdiction. The degree of detail is intended to reflect the technical nature of the decision.]
The Court of Appeal of the Hague ruled against the Church of Scientology in its copyright infringement suit against a Dutch writer and her ISP, XS4ALL. The writer, formerly a practicing Scientologist, posted to a website parts of confidential church documents, and the church sued under the Dutch Copyright Act of 1912. In 1999, the district court ruled in favor of the defendants, citing freedom of speech concerns. However, that court also ruled that ISPs should be held liable for posted materials that might violate existing copyrights. The Court of Appeal affirmed the first ruling, but reversed the second, holding that ISPs were not liable for posted materials. The documents at issue in this case became available as a result of a separate lawsuit in U.S. federal district court by the church against one of its former members in the early 1990’s. In that earlier case, the former member submitted an affidavit that included confidential excerpts from documents stating church doctrine and detailing the organization of Scientology. The writer in the current case initially published the entire affidavit on her web site in 1995, but removed it in early 1996 after legal action by the church. However, she then posted her own account about Scientology that included quotations from the confidential and copyrighted documents.
As a defense to the church’s copyright claims, the defendants invoked the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The ECHR directs courts to take into account considerations such as “the public interest,” “freedom of information,” and “rights in a democratic society” when reviewing a copyright infringement claim.
The court ruled that Scientology owned the copyrights to the works that were quoted on the web site, but that the interests of the defendants as well as the general interest of freedom of information outweighed the church’s interests. In doing so, the court noted that the defendant “intended to provide information about the doctrine and organization of Scientology and at the same time warn against abuse.” In addition, the court pointed out that she did not have any commercial objective.
The court went on to state that the Church of Scientology had “no scruples about rejecting democratic values in their doctrine and organization” and one of the objectives of keeping some of the confidential information secret was “to exercise power over members” and “thwart discussion of the doctrine and practices of the Scientology organization.” In concluding the above, the court noted testimony that the church had policies to harass or harm anyone who challenges the church.
The court noted that the information at issue had been distributed within Scientology from the 1950’s onward, and that approximately 20,000 to 25,000 members read the information, but members did not have permission to distribute the works without restrictions. However, since the U.S. court made the affadivit publicly available for two years, the court ruled that the information had become part of the public domain.
While the court said that the information became part of the public domain, it appears that it might have meant something somewhat different. The court acknowledged that Scientology owned copyrights on the works, so that would mean the information was not part of the public domain. It appears that the court is suggesting that the church’s interests were harmed earlier when the document became part of the public record for two years, so the defendant’s republishing did not cause significant further injury to the church.
Since the defendant did not cause the principal harm, the interest of the church in this situation did not outweigh the defendant’s interest in referencing the works and the general interest in freedom of information. As a result, the court allowed the writer to continue posting the information. The court also ruled that the writer’s ISP could not be held liable for the writer’s posting of the information and hyperlinks to it, stating that “the mere provision of physical facilities for making or enabling a communication” cannot be a basis for infringement liability. The court also awarded fees to the defendants.