Tuesday 20 September 2011

Rebalancing copyright - Hargreaves, thumbnails and a handbag

The Hargreaves Review may have stopped short of recommending fair use, but the report still represents a turning point in the development of UK and even European copyright.  For the first time an official review has said in terms that digital copyright has overreached and, not least in the interests of restoring legitimacy to copyright, should be rebalanced.

Legislation will not follow immediately.  That will have to await the consultation and lobbying that will start this autumn.  However the courts need not sit on their hands.  They have shown themselves quite capable of stepping outside the four corners of the copyright legislation to find tools with which to rein back overreaching copyright – or indeed to go in the opposite direction to catch palpably bad actors.  A copyright lawyer has to be aware of the variety of tools that courts can deploy to mould copyright into better shape.

These tools are numerous.  Implied licence, estoppel, public interest, non-derogation from grant, countervailing fundamental rights and accessory liability are some that come to mind, not to mention that if you want to understand the copyright liability of online platforms and carriers you have to look at the ECommerce Directive, not at copyright legislation.

Some recent examples illustrate the point.  The first is the decision of the Paris Court of Appeal in SAIF v Google on 27 January 2011, in which the court held that the image thumbnails that are a necessary part of Google Image Search do not infringe copyright.  In finding that Google’s service was that of a neutral intermediary the court seems to have drawn inspiration from the Ecommerce Directive.  The text also suggests that the court took a policy view that the service was of sufficient public benefit that the use of thumbnails should be tolerated.  The court evidently did not feel confined by the strict boundaries of the copyright statutes in getting to the right answer.

In a different context, but equally significant, was the decision of the Hague District Court in May 2011 in the Darfurnica case, holding in a preliminary judgment that the artist Nadia Plesner’s right of freedom of artistic and political expression outweighed Louis Vuitton’s Community design right in a handbag that the artist had included in her painting Darfurnica.    

In the UK the courts have so far mostly only dipped their toes into the deep waters beyond the IP statutes.  The last time they plunged bravely in was probably BL v Armstrong [1986] UKHL 7, the mid-1980s spare parts case in which the House of Lords, using the common law principle of non-derogation from grant, discovered a previously unknown right to repair motor vehicles which overrode the interests of copyright owners.   (A recent attempt to argue non-derogation from grant in NLA v Meltwater [2011] EWCA Civ 890 received short shrift.) 

However the ground has been laid for new excursions, mainly in the recognition of the public interest defence to copyright infringement in Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142 and the comments of Lord Justice Buxton concerning the conflict between copyright and freedom of expression in the ‘Lawyer’s Letter’ case, Musical Fidelity v Vickers [2002] EWCA 1989.  Most recently, Mr Justice Arnold in SAS Institute v World Programming Ltd [2010] EWHC 1829 (Ch) accepted that he should construe the “fair dealing for purposes of criticism or review” copyright exception liberally, in the light both of previous authority and the right of freedom of speech under Article 10 of the European Convention on Human Rights.

Now that the Hargreaves report, since endorsed by the UK government, has legitimised the view that copyright has to be rebalanced, the UK courts would have good reason to make more use of the tools available to them should the need arise.

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