SureIt is suggested that in such cases, the courts should refuse to grant an injunction to prevent publication of the material but still order the copier to pay damages (which would be akin to a licence fee) to compensate the copyright owner.
Their reasoning was that, despite such cases being self-evidently those where freedom of expression is paramount, the copying is likely to be in a "commercial" context and so the copyright owner should be compensated for the loss of the right of exploitation. Part of their reasoning was that the use of extracts from the minute gave "significant commercial value" to the Sunday Telegraph (no doubt it also considered the potential loss of commercial value to Ashdown in being deprived of the newsworthiness of the minute if he intended to include it with the publication of his diaries).