In search of copyright’s Goldilocks Zone

Banning things rarely produces the results hoped for by the putative suppressors.  Alice Cooper famously sent Mary Whitehouse a bunch of flowers when her complaint about School’s Out being performed on Top of the Pops launched his career into the stratosphere.

Today’s news that the US Republican Study Committee has disowned and pulled a discussion paper on copyright less than 24 hours after issuing it sent this reader, and no doubt many others, rushing to find out what was so terrible that it had to be removed from public gaze. 

Well, it’s a paper somewhat in the Hargreaves mould, though more radical.  Far removed from the ‘copyright is my castle’ school of thought, it emphasises balance and the economic effects of copyright.  Being American it starts from the US Constitution’s recitation that copyright exists not for its own sake, or for the sole benefit of creators, but in order “To promote the Progress of Science and useful Arts”.  It is good to know that a 200 year old revolutionary document can in 2012 still seem dangerously subversive.

The paper’s perspective is unashamedly classical liberal, with its analysis of current copyright legislation from the perspective of whether it is consistent with laissez-faire capitalism (answer an emphatic ‘No’).  In social welfarist UK and Europe that is likely to be a minority concern, illuminating though the discussion is.  It is as if Lord Macaulay had risen from the grave and taken forward his analysis of copyright as a necessary evil to which we must submit for the sake of the good. 

Memorably, the paper invokes the Goldilocks principle.  Just as you can have too little copyright, you can have too much copyright.  The objective is to get it just right – to find the Goldilocks Zone for copyright.  A radical idea indeed.

How tech law principles are starting to mould copyright

This has been a hectic couple of weeks for copyright.  Ten days ago the EU Court of Justice published the UsedSoft decision, which will have us thinking in a completely new way about exhaustion of rights online.  On Thursday this week the Canadian Supreme Court delivered five separate copyright judgments on subjects ranging from fair dealing to communication to the public, each in its separate way reinforcing a more user-centric, less author-centric, approach to copyright. 

The Canadian decisions could have come straight out of the pages of the Hargreaves Review.  They stressed the need in copyright for:

“a balance between promoting the public interest in the encouragement and dissemination of works of the arts and the intellect and obtaining a just reward for the creator”, which requires recognising the “limited nature” of creators’ rights (SOCAN v Bell Canada [2012] SCC 36 at [8], quoting the 2002 SCC case of Théberge.)  

This reflected:

“a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace … Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain.”

The Canadian decisions also evince, in common with the ECJ’s UsedSoft decision, a desire to mould copyright in the digital and online area so that it applies in the way that it did (and still does) to physical copies.  “The traditional balance between authors and users should be preserved in the digital environment.” ESA v SOCAN  2012 SCC 34 at [8].

It is by now a commonplace observation that, thanks originally to the accident of technology that both accessing a digital copyright work and any dealings with it require the making of at least transient copies, copyright enjoys greater reach over digital copies than over hard copies. 

This extended ambit gives us the bizarre (to anyone other than techie copyright lawyers) spectacle of courtroom debates over exactly how many fragmentary milliseconds of what kind of copyright works are held in a memory buffer at any given moment (see e.g. FAPL v QC Leisure [2008] EWHC 1411 (Ch) and ITV v TV Catchup [2011] EWHC 1874 (Pat)).

It also gives copyright owners more far-reaching control over online consumer behaviour compared with offline and provides new opportunities to extract royalties.  It was an attempt to double-dip royalties for downloaded online games that provoked the disfavour of the Canadian Supreme Court in ESA v SOCAN.   

Both the ECJ and the SCC kicked back hard against what they perceived as imbalance between hard copy and digital copyright outcomes.  The ECJ strove to achieve ‘functional equivalence’ between a fully paid permanent download and a sale on physical media.  It said that what would otherwise be a communication to the public would be converted into a distribution to the public if a ‘transfer of ownership’ (defined in economic rather than legal terms) had taken place.  The ability to rely on the first sale doctrine in order to acquire second-hand software applied in equivalent situations, regardless of whether the transactions took place on physical media or by download. 

The SCC invoked a similar concept of ‘technological neutrality’ in several of its judgments, two of which together held that the right of communication to the public applied to streaming but not to downloads.  The principle of technological neutrality:

“requires that the Copyright Act apply equally between traditional and more technologically advanced forms of the same media. … In our view, there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet.  The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user.” (ESA v SOCAN)

It is, probably, no coincidence that these user-centric decisions were made in cases concerning tariff-setting and an attempt to control further dealings in legitimately purchased items.  In these cases the rightsholders’ positions could easily be portrayed as unmeritorious attempts to reap an advantage from an over-technical application of copyright.  In piracy cases, on the other hand, rightsholders can reckon on a more sympathetic audience for pleas that expansive rights and remedies are required in order to restrain unbridled infringement. 

Tech lawyers have for many years advocated that laws affecting technology should, all other things being equal, be technology neutral and should seek to achieve functional equivalence online and offline.  

As long ago as 1999 the US UETA model law for electronic transactions was based on the notion of achieving functional equivalence between electronic transactions and their paper counterparts. 

Technological neutrality is also a desirable goal, mostly as a guiding principle for drafting legislation.  The drafter should seek a level of generality that will ensure that the legislation does not become out of date or skewed in its effect as technology develops.  While it can be dangerous to elevate technological neutrality to a principle that overrides all other considerations, the Canadian Supreme Court's invocation of the principle was appropriate in order to correct a perceived legislative skew resulting from an unforeseen accident of technology.

Courts have previously shown themselves to be willing to reach outside the four corners of copyright statutes in order to beat copyright into better shape.  We can think of implied licence, non-volitional copying, the fundamental right of freedom of expression, public interest, public benefit, derogation from grant and principles extracted from the Electronic Commerce Directive. 

Now we can add to the list two technology law doctrines, the deployment of which at the highest judicial levels perhaps, along with Hargreaves, heralds a sea change in attitudes to the appropriate scope and function of copyright.

UsedSoft - not just about software?

Tuesday's decision of the EU Court of Justice in UsedSoft has set the software industry aflutter by largely giving the green light to resale of permanent software licences, regardless of whether the original provision of the software was on a physical medium such as CD or DVD or was downloaded, so long as the original purchaser renders its copy unusable. 

The principle applied in UsedSoft is that the original transaction 'exhausts' the rightsowner's ability to control further dealings with the copy.  The Court has held that this even extends to permitting a resale of the bare licence, where the purchaser owner downloads a new copy of the software from the rightsowner's website.  For fuller details of the decision see here.

But buried in the middle of the judgment is what at first sight appears potentially to be an even more radical statement, suggesting that the same principle may apply not just to computer programs but to all copyright works.  At paragraph 52 the Court states: 

"the existence of a transfer of ownership changes an ‘act of communication to the public’ provided for in Article 3 of [the Copyright in the Information Society directive] into an act of distribution referred to in Article 4 of the [Infosoc] directive which, if the conditions in Article 4(2) of the [Infosoc] directive are satisfied, can, like a ‘first sale … of a copy of a program’ referred to in Article 4(2) of [the Software] Directive 2009/24, give rise to exhaustion of the distribution right."

The key statement is that an act of communication to the public 'changes' into an act of distribution if there is a transfer of ownership.  The court said that transfer of ownership includes a download from the internet where the rightsholder has also "conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period".

The Infosoc Directive specifically states that an act of communication to the public does not give rise to exhaustion.  But if there is no act of communication to the public because it has changed into an act of distribution, then it would seem that the 'no exhaustion' exception can be sidestepped.

In principle the broad economic test of transfer of ownership applied in UsedSoft could then also be applied to works within the Infosoc Directive, such as music and video.

This could suggest that fully paid-for permanently licensed authorised downloads under the Infosoc Directive, such as of music and video, are capable of being exhausted thus allowing purchasers to transfer them like secondhand CDs or DVDs. The bright line for exhaustion would then seem to be not between physical copies and downloads, but between downloads (when they satisfy the economic value test described above) and streaming or other service-type online offerings.  

However there are some obstacles in the way of applying exhaustion to online downloads of non-computer program works.  First, Recitals (28) and (29) of the Infosoc Directive lean very strongly in favour of a distinction between tangible and non-tangible copies:

“(28) Copyright protection under this Directive includes the exclusive right to control distribution of the work incorporated in a tangible article. The first sale in the Community of the original of a work or copies thereof by the rightholder or with his consent exhausts the right to control resale of that object in the Community. This right should not be exhausted in respect of the original or of copies thereof sold by the rightholder or with his consent outside the Community. …

(29) The question of exhaustion does not arise in the case of services and on-line services in particular. This also applies with regard to a material copy of a work or other subject-matter made by a user of such a service with the consent of the rightholder. Therefore, the same applies to rental and lending of the original and copies of works or other subject-matter which are services by nature. Unlike CD-ROM or CD-I, where the intellectual property is incorporated in a material medium, namely an item of goods, every on-line service is in fact an act which should be subject to authorisation where the copyright or related right so provides.”

This apparent distinction between tangible and non-tangible is reflected in the reference in Article 4(2) of the Infosoc Directive to the distribution right being exhausted on first sale or other transfer of ownership within the EU of an 'object'. 

The Advocate General in his Opinion discussed these provisions of the InfoSoc Directive and concluded that they did not prevent a download being regarded as a distribution capable of being exhausted. If that is right, then UsedSoft could admit of a possibility not mentioned in recitals (28) and (29), that of an online download that is not in the nature of a service.

However applying exhaustion to online non-software would also do violence to the Agreed Statement interpreting Articles 6 and 7 of the WIPO Copyright Treaty, which the Infosoc Directive implements:

"As used in these Articles, the expressions "copies" and "original and copies," being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects."

Ultimately the Court in UsedSoft based its decision on the narrower ground of the Software Directive being a lex specialis that takes precedence over the lex generalis of the Infosoc Directive.  In doing so it left open, albeit in somewhat sceptical terms, the possibility that the exhaustion of the distribution right under the Infosoc Directive concerns only tangible objects: "even supposing" that to be right "that would not be capable of affecting the interpretation of Article 4(2) of the Software Directive, having regard to the different intention expressed by the European Union legislature in the specific context of that directive".

At a more general level the distinction between tangible and non-tangible is the very distinction that the Court in UsedSoft has rejected in favour of an economic value test.

The Court in UsedSoft did make a distinction between computer programs and works under the Infosoc Directive.  It said:  "The use of a computer program, unlike the use of other works protected by copyright, generally requires its reproduction." 

It is unclear whether the Court meant this to favour or oppose the possible application of exhaustion to non-program downloads.  If anything the implicit lack of need to take account of the reproduction right would suggest that it would be conceptually easier to apply exhaustion. 

However in fact the enjoyment of other works on a computer does, as with computer programs, involve transient reproduction.  So it would seem that in the way that the Court invoked the Article 5(1) 'lawful acquirer' provisions of the Software Directive in Usesoft to bypass the reproduction right, in order to achieve the same result it would have to find a way of doing the same with the Article 5(1) 'lawful use' provisions of the Infosoc Directive.

We can speculate that UsedSoft may open up the path to genuine file-shifting of all sorts of copyright works - not the type of illegitimate file-sharing that multiplies and proliferates infringing copies by uploading to public sites, but person to person transfers where the original purchased copy is deleted: the functional equivalent of passing on second hand CDs or DVDs.  Whether this is the direction that is in fact signposted by UsedSoft will have to await further debate and court rulings.

[Updated 29 June 2013 to include reference to WIPO Copyright Treaty Agreed Statement.]

Socks, shoes and feet – dissecting a copyright analogy

Many, many people have tweeted this video snippet of Canadian Member of Parliament Dean del Mastro on the subject of format shifting.  This is what he said:

“When you purchase something, you purchase it for a specific purpose.   … He’s making the argument that you should be allowed to format shift that piece of copyrighted material, even though you didn’t pay for that right.  That’s what he’s saying Madam Speaker.  …

It’s like going to a clothing store and buying a pair of socks and going back and saying ‘By the way I’ve decided it wasn’t socks that I needed, what I really wanted was shoes.  So I’m just going to take these, I’m going to format shift from socks to shoes and I’m not going to pay anything because it was all for my feet’, Madam Speaker.”

Let’s examine why this is such a poor analogy.

First, there is the hidden premise that a retailer or manufacturer can, as a matter of property rights, restrict the purposes for which a purchaser can use a tangible product. 

You may indeed purchase a product with a specific purpose in mind, or the product may be advertised for a particular purpose.  That will affect the manufacture or retailer’s liability if you suffer injury as a result of using it for a different purpose.  But that does not give either the manufacturer or the retailer the right to prevent you doing so.  The property has passed to the purchaser, who can do what he likes with it.  A right to prohibit use for a particular purpose would have to be created by an express contractual obligation, which might or might not be enforceable.    

Second, even if the initial premise were sound the conclusion does not follow.  His example is patently not about using a purchased product for a different purpose, but instead is about taking a different product that might suit the changed purpose better.  Commenters on the video lost no time in pointing this out:  the socks/shoes/feet analogy was more like having to pay again for:

-         Using the socks as gloves (MrNatums)

-         Buying blue socks and dying them red (ChadEnglishPhD)

-         Buying a hammer and using it as a doorstop (ChadEnglishPhD)

-         Buying a screwdriver to fix some pipes, then using it to fix a PC (Ooabloka)

Third, he has inverted the product and the format.  Changing socks for shoes is like swapping a Lily Allen track for a Beethoven sonata.  That is not format shifting from socks to shoes, it is changing one product for another.  Format shifting is, if we must adopt the analogy, taking one product (either socks or shoes) and swapping it from one foot to another.

None of which gets us much nearer an answer to the question of whether it is appropriate for copyright to include the right to prevent format-shifting, and if not what types of format shifting should be excluded from copyright.  The argument that ‘you are doing something without paying for it’ presupposes that the copyright owner should have the right to prevent it, which is precisely the issue that is up for debate.  The argument assumes the conclusion.  Flaw number four.

What the Defamation Act 2013 means for the internet

[Note: This post has been updated following Royal Assent to the Defamation Bill on 25 April 2013.  The Bill is now the Defamation Act 2013.  Most of the Act is not yet in force.  None of the provisions discussed below will apply to Scotland.  The Act does not apply to Northern Ireland.]

The Defamation Bill Act 2013 published last week after the Queen’s Speech contains four clauses five sections of especial significance for the internet:

-           Clause Section 5: a new defence for website operators in respect of third party posts.  In essence this significantly enhances website operators' protection for posts by identifiable posters; and is also designed to encourage website operators voluntarily to disclose to defamation complainants identity and contact details of the author of an anonymous defamatory post.

-          Clause Section 8: a single publication rule for purpose of time-barring defamation actions.  This will protect internet republications and archives.  Some legislative action in this area was inevitable following the 2009 decision of the European Court of Human Rights in the Times v UK case.

-          Clause Section 9: a forum bar on defamation actions against defendants domiciled outside the EU or EEA, unless of all places in which the statement has been published, England and Wales is clearly the most appropriate place in which to bring an action.  While this is framed as a general restriction on forum-shopping, it will have especial impact on actions founded on the mere accessibility of a foreign internet publication in England and Wales.

-          Clause Section 10: a bar on defamation actions against secondary publishers unless it is not reasonably practicable to proceed against the author, editor (if any) or commercial publisher (if any).  Although mainly presented as a defence for booksellers, this clause will also benefit online intermediaries.

-         [Update] Section 13: the court is empowered, where it gives judgment for the claimant in a defamation action, to order the operator of a website on which the defamatory statement is posted to remove the statement; and to order certain secondary publishers to stop distributing, selling or exhibiting material containing the statement.  This section was introduced during passage of the Bill through Parliament.  The terms of any proposed order against a website would have to be considered in the light of the prohibition in Article 15 of the Electronic Commerce Directive on placing general monitoring obligations on hosting intermediaries.

The most controversial and difficult of these provisions is Clause section 5, which according to the government’s consultation response on the draft Bill was to deliver a greater degree of protection against liability for intermediaries. 

To achieve this aim, the Clause section 5 defence would have to be significantly more attractive to online intermediaries than the defences already provided by S1 of the Defamation Act 1996 and (other than for injunctions) by the conduit, caching and hosting safe harbours under the Electronic Commerce Directive. 

For identifiable posts Clause section 5 does provide significantly greater protection than existing defences, since the defence is not defeated by any degree of knowledge so long as the operator can show that it did not post the statement [Update] and the claimant cannot show that the operator acted with malice in relation to the posting. However this may raise a question (which would also apply to non-identifiable posts) as to when moderation (which under section 5(12) does not of itself defeat the defence) strays from knowledge into participation in posting.

For anonymous or pseudonymous posts, on the face of it Clause Section 5 mostly offers no more than the existing defences, and in some important respects is less attractive.  A proper assessment of the effect of Clause section 5 on anonymous and pseudonymous posts is hindered by the unsatisfactory device of leaving significant elements to be prescribed by secondary legislation.  The clause section reads as if the drafters gave up half way through and punted off the most difficult aspects to a statutory instrument. 

[Update] Despite calls for the government to publish draft regulations during the passage of the Bill, this did not occur.  Indications of the government's thinking can be gleaned from the informal consultation among interested parties conducted by the Ministry of Justice at the start of 2013.

Identifiable posts apart, the most significant increase in protection for online intermediaries is in fact delivered by Clause Section 10, which should make it much more difficult to proceed against online intermediaries rather than the primary perpetrators of the libel.

Apart from its impact on website operators, Clause section 5 is controversial in singling out anonymous and pseudonymous speech for special treatment.  The justification for this is said to be that people who defame others should not be able to hide behind a cloak of anonymity. 

However, taken in isolation this is mere sloganeering.  Any serious policy-making has to take into account the benefits of anonymous and pseudonymous speech, including speech which someone aggrieved (and let’s not forget that libel claimants can be notoriously thin-skinned) may consider to be defamatory, even with the new threshold of ‘serious harm to reputation’.  Anyone who heard Rowan Davies of Mumsnet speak at the Westminster Legal Policy Forum on 15 March 2012 could hardly doubt the value of anonymous speech.

At a detailed level there are more reasons to be concerned about Clause section 5.  Here are some that are immediately apparent.

Effect on common law publication

Clause Section 5 applies where an action for defamation is brought against a website operator in respect of a statement posted on the website.  It provides for a defence where the website operator can show that it did not post the statement on the website.

[Update] Section 5(11), introduced during the passage of the Bill, provides that the defence is defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned.  The Explanatory Notes to the Act give the example of where the website operator had incited the poster to make the posting or had otherwise colluded with the poster.

Since the provision is cast as a defence, it presupposes that a website operator would otherwise be at risk of liability for publishing a third party post.  However this is contrary to the trend of the most recent defamation caselaw on liability for publication, namely Tamiz v Google.    

That case (which is understood to be under appeal) held found on appeal that (at least prior to notification of the existence of the defamatory statement) Google was not a publisher of comments to a blog hosted on its Blogger platform.  Not only is someone who is not a publisher in no need of a defence, but a defence reverses the burden of proof.  It is for the claimant to prove that the defendant published the statement, whereas an affirmative defence places the burden on the defendant.

Clause Section 5 shares this vice with S1 of the Defamation Act 1996, which is structured in similar terms and provides a defence for various secondary publishers, some of whom (such as conduits) would almost certainly not have been regarded as publishers at common law.  It is true that no-one to date has argued that the terms of the 1996 Act broadened or should influence the class of those taken to be publishers at common law, but then until Tamiz v Google in the Court of Appeal the recent law in this area had been built almost entirely on claims by litigants in person. 

It would be most unfortunate if the effect of Clause section 5 were to render website operators or other intermediaries potentially liable for publication of statements for which they may currently be able to argue that they are not publishers at common law.  At least it should be have been explicitly stated that Clause Section 5 does not affect any question of whether the defendant has published the statement at common law; and it would do have done no harm to take the opportunity to insert a similar provision in the 1996 Act.  It is doubtful whether Clause 14 Section 15, stating that publish and publication have the meaning they have for the purposes of defamation law generally, is sufficient.

What is a website operator?

Clause Section 5 is silent as to what is meant by a website, or the operator of a website.  This is understandable to an extent, since attempts to define such terms are liable to be overly technology-specific and to create uncertainty through excessive precision (see Professor Chris Reed’s new book Making Laws for Cyberspace for an excellent discussion of these pitfalls).  However the terms ‘website’ and ‘operator’ are themselves hardly models of precision or certainty.

We can think of a core set of examples that will fall within the provision.  A business website with a discussion forum would be one.  A site such as Mumsnet would also be a good candidate.  But what about, say, the Blogger platform considered in Tamiz v Google and Davison v Habeeb?  Is the Blogger platform a website?  Is an individual blog hosted on the platform a website?  If so who is the operator: Google, the blogger, both?  Is Facebook a website?  Is Twitter a website?  Is World of Warcraft a website?  We could go on.  The clause section gives no hint of what the thinking behind the drafting may have been.

[Update]  During the passage of the Bill an amendment was tabled in the House of Lords to replace 'website' with 'electronic platform'. Responding for the government, Lord Ahmad of Wimbledon said on 15 Jan 2013: “The purpose of Clause 5 is to provide a defence to website operators that host third party content over which they exercise no editorial control. ... If in further discussion in Committee or at Report a form of technology is brought to our attention that is akin to a website and serves the same purpose in hosting third-party content, and a suitable form of words can be found adequately to describe that in legislation, the Government are open to considering that point further.” No change was made.

Defeating the defence – inability to identify the poster

The section 5 defence is defeated if the claimant can show three things:

1.       That it was not possible for the claimant to identify the person who posted the statement

2.      The claimant gave the website operator a notice of complaint (containing various specified information); and

3.      The website operator failed to respond to the notice of complaint in accordance with regulations to be made under secondary legislation

So if the claimant is able to identify the person who posted the statement, then the defence cannot be defeated regardless of whether the operator had knowledge of the defamatory or actionable nature of the posting. This is a significant enhancement over existing defences since it avoids website operators being put in the invidious position of acting as judge and jury over third party statements alleged to be defamatory.

[Update]  The introduction of the malice exception in Section 5(11) may render this less of a 'bright line' defence, since there may be room for debate about where the lines are between participation in a post, moderation of posts and malice in relation to a post.

Presumably the inability of the claimant to identify the person posting the statement is to be assessed by reference to the information available on the site, rather than taking into account e.g. the possibility of making a Norwich Pharmacal application against the website operator to ascertain this.  However nothing is said about what constitutes ‘identity’.  Does a pseudonym or an alias qualify?  Or does the clause only bite on anonymous speech?  But what if the identity behind a pseudonym is apparent, to some degree of certainty, from material available elsewhere on the internet?

[Update] Section 5(4), introduced during the passage of the Bill, provides that it is possible for a claimant to 'identify' a person only if the claimant has sufficient information to bring proceedings against the person.

Defeating the defence – notice of complaint

A notice of complaint in respect of a post by a non-identifiable poster has to specify the complainant’s name, specify where on the website the statement was posted and contain such other information as may be specified in regulations (why leave this to secondary legislation?). 

Most importantly, the notice must set out the statement concerned and explain why it is defamatory of the complainant. 

Under Clause section 5 the complainant has only to explain why the statement is defamatory, not why it is actionable.  Actionability brings into play possible defences such as (as reframed under the Bill Act) truth, honest opinion, responsible publication on matters of public interest and so on.  

Since this is a notice to which a website operator has to consider how to respond, why should the notice not be required to address the whole context?  It is unclear why a website operator should potentially be encouraged to reveal identity details or take down a post, even an anonymous post, on the basis of only half the story.

In this respect the provision repeats a feature of the 1996 Act secondary publisher defence, but which is absent in the Electronic Commerce Directive hosting exception which refers to knowledge of illegality. 

On the other hand it appears that prior knowledge of the defamatory or illegal nature of the post would not defeat the Clause section 5 defence, so long as the website did not post the statement (see comments above regarding moderation [and malice]) and upon receipt of a notice complying with the Clause section 5 requirements [or possibly in some cases a non-compliant notice] follows the procedure laid down in Clause section 5 and the regulations.  

[Update] See update comments above regarding the introduction of section 5(11) concerning malice.  The regulation-making powers were expanded during passage of the Bill to allow the regulations to address circumstances in which the website operator receives a notice that does not comply with the specific requirements of a notice of complaint.  This is thought to be so that regulations can 'require' (i.e. as a condition of being able to rely on the defence) a website operator to revert to the giver of the notice and explain what is required for a valid notice.  

Defeating the defence – the website operator’s response

The government consultation response proposed that on receipt of a notice of complaint in respect of a non-identifiable poster, the intermediary would have to contact the author of the material or, if this did not prove possible, take the posting down.  If the matter remained in dispute after an exchange of correspondence, the intermediary would be required to provide details of the author to the complainant, who would then have to sue the author to secure removal of the material and could not pursue an action against the intermediary.

One attraction of this proposal to intermediaries would have been that, having initially acted as a liaison and then having provided identity and contact details to the complainant, the intermediary was out of the picture even if the disputed posting stayed on the website.  The existing defences under the 1996 Act and the Electronic Commerce Directive hosting exemption provide no route to safety other than taking down the allegedly offending material.

However, rather than clearly implement this escape route the Bill Act leaves it to secondary legislation, giving the government an unsettlingly wide range of future options.  The Bill Act merely provides that Regulations may make provision including “as to the action required to be taken by an operator of a website in response to a notice of complaint (which may in particular include action relating to the identity or contact details of the person who posted the statement and action relating to its removal)”.  There is no suggestion here that taking down the posting would occur only if the intermediary could not contact the poster of the material.

Why is a new route to disclosure of identity needed at all?

A troubling aspect of the provisions regarding non-identifiable posts is why, when there is already a widely used judicial route (the Norwich Pharmacal order) to obtaining the identity of anonymous posters of defamatory material, any of this is necessary at all.  The court is uniquely able to balance competing considerations of reputational harm, privacy and freedom of speech.  So, for instance, in Sheffield Wednesday Football Club Ltd and Others v Hargreaves the court refused to order disclosure of identities for posts that it regarded as bordering on the trivial, saloon-bar moanings, or mild abuse, even if arguably defamatory. 

The procedure under Clause Section 5 would, on the face of it, throw this balancing exercise back on website operators, or encourage them to reveal identity and contact details without regard to broader considerations, simply in order to preserve their own liability position.  It is difficult to see how this can serve a wider interest.  It may also not comply with EU law as interpreted in the Promusicae and Bonnier Audio ECJ decisions, even allowing for the generous latitude to Member States granted by those decisions. 

The government consultation response stated that there would “be a need to ensure that appropriate safeguards were in place relating to the releasing of details of the author of the material to the complainant, taking into account concerns such as those expressed by the Committee in relation to whistleblowers.”  None of this is contained in Clause Section 5.  If it is intended to be addressed in secondary legislation, is that the right place to deal with issues of such importance?

What does ‘required’ mean?

As set out above, Clause Section 5 provides that Regulations may make provision as to action ‘required’ to be taken by a website operator in response to a notice of complaint in respect of a non-identifiable poster.   Since this is all in the context of defeating the defence provided by Clause Section 5, it is to be hoped that ‘required’ means no more than ‘required in order for the operator to rely on the defence’.  However [Although] this is not explicitly stated, it does appear from the MoJ informal consultation on the possible content of regulations that .  If the intention is that the only consequence is that the operator be unable to rely on the Clause Section 5 defence, then ‘required’ is ambiguous and should be revisited. 

If the intention is that a website operator should be subject to other sanctions if it does not do what is required, then that should be made explicit so that it can be fully debated and, it is to be hoped, rejected. 

The notion that a website operator could be compelled to disclose third party identity and contact details, or face sanctions for not doing so, merely through receipt of a notice alleging defamation, with no opportunity for a court to review the full circumstances and exercise its discretion, would [have been] be highly controversial and quite likely contrary to Promusicae and Bonnier. 

It is questionable whether a website should even be encouraged voluntarily to disclose such details through the threat of losing the benefit of this new defence.  At any rate the operator’s ability to rely on other existing defences, and to argue that it has not published at common law, would need to be fully preserved.

How does Clause 5 interact with Clause 10?

Clause 10 provides that a court does not have jurisdiction to hear and determine an action for defamation against a person who is not the author, editor or publisher (i.e. commercial publisher - all as defined in the 1996 Act) of the statement unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or commercial publisher. 

It is interesting to speculate on whether a website operator’s decision not to respond to a notice under Clause 5 would be held against it in the court’s evaluation of reasonable practicability, even though it is open to the claimant to pursue a Norwich Pharmacal application against the website operator to disclose the identity of the author.  Given all the problems with Clause 5, it is to be hoped not.

[Updated 11.30pm 13 May 2012 to add material re identifiable posters and prior knowledge; further polishing at various times on 14 and 15 May 2012; updated following Royal Assent on 4 May 2013.]

Dire traits – a curious case of copyright extradition

In an English copyright extradition case last year (Sitek v Swidnica Circuit Court, Poland [2011] EWHC 1378 (Admin)), the court’s decision to permit the appellant’s extradition to Poland turned on the assertion in a European Arrest Warrant that various audio and music files had “the traits of illegal copying”.   Mr Justice Lloyd Jones ordered extradition for those items, but refused it for games and software in respect of which the warrant made no similar assertion.   

Under our minimalist European extradition procedures, the prosecution were not required to state what the alleged traits consisted of, let alone provide supporting evidence.  Troublingly, it was sufficient for the warrant to make a bare formulaic assertion at a level of generality free of any concrete detail. 

Why did the alleged traits make the difference between extradition or not?  This brings into focus another significant aspect of the case.  The defendant Sitek was charged in Poland with copyright offences based on his acquisition of the computer games, software, audio and music files.  To qualify for extradition the prosecution had to show that the conduct alleged in the warrant would amount to an offence in England.  It was not suggested that the offence fell within the list of 32 EAW offences for which dual criminality is abolished. 

However the prosecution did not argue that the conduct alleged against Sitek would have constituted a copyright offence in England.  Clearly it would not have done, since the allegation was of mere acquisition and possession.   Instead, they relied on the Proceeds of Crime Act 2002.  This makes it a criminal offence to acquire or possess criminal property.  Property is criminal property if it constitutes a person's benefit from criminal conduct or represents such a benefit, and the alleged offender knows or suspects that it constitutes or represents such a benefit.

So the prosecution had to show that if the alleged conduct had occurred in the UK, then:

(a)  Someone up the distribution chain would have committed a criminal offence

(b)  The copies alleged to be in Sitek’s possession would have constituted or represented someone’s benefit from such criminal offence; and

(c)   Sitek would have known or suspected that to be the case.

As to (a) the judge held that it could be inferred from the allegations in the EAW that someone up the chain had either made the copies for sale or hire, or distributed the copies in the course of a business or otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright.  The judge drew attention to the value placed on the items in the description of the offences: “while not on a massive scale, these are, with the exception of Offence 4, not insubstantial quantities of infringing articles”.   

The loss caused to distributors by the audio and music files on which Sitek was ultimately ordered to be extradited was alleged to be as follows: p2p  audio files recorded into MP3: PLN 1,804; audio files with the repertoire of Polish and foreign music: PLN 407.97.  At the exchange rate prevailing at the time of the alleged offences, the total alleged loss to distributors on those items was about £370 (PLN 2,212).

The items on which Sitek was not extradited were alleged to have caused losses of PLN9,482.

The judge also held that it could be inferred that the person dealing up the chain knew or had reason to believe that the article was an infringing copy, since each of the descriptions in the warrant alleged that the appellant "should and could have assumed" in the circumstances that it had been obtained by means of a prohibited act in contravention of licence. Thus the same should and could have been equally obvious to any other person dealing in the items.   There was therefore sufficient basis to infer that someone up the chain would have committed a criminal copyright offence.

As to (b) the judge held that mere possession of the items by a person prior to the acquisition by the appellant would be sufficient to constitute a benefit.

As to (c), the prosecution had to show that Sitek would have had not just objective grounds on which he ought to have assumed that the items were infringing, but would in fact have known or suspected that to be the case.  The allegation that he “should and could have assumed” in the circumstances that the items were infringing fell short of alleging subjective knowledge or suspicion.  The case of dual criminality in relation to computer games and software therefore failed. 

However, the allegations in relation to the audio and music files contained the additional assertion that they had “the traits of illegal copying”.  This was enough to tip the balance and enable the judge to infer subjective knowledge or suspicion:

“While no further particulars of these allegations are provided, these are to my mind statements of primary fact from which conclusions may be drawn, albeit stated once again at a level of considerable generality. I consider that this description of the files is a matter which is capable of sustaining the necessary finding of knowledge or suspicion for the purpose of the relevant Offence in English law, in particular when considered in conjunction with the other more general allegations contained in all four statements of Offence.”

The Sitek case illustrates both the minimal level of detail which is required to be included in an EAW and the extent that the courts can make inferences based on quite general allegations. 

It also demonstrates that dual criminality in a copyright case may be based not just on a corresponding copyright offence, but on a catch-all statute such as the Proceeds of Crime Act 2002.  This can render conduct criminal (such as in this case mere possession) which is not an offence under the copyright legislation itself.

Council of Europe search and social media recommendations - political agendas dressed up as human rights

When human rights become just another vehicle for channelling the political agendas of the hour, you suspect that something has gone wrong.  When a group of government ministers issues, under the human rights banner, a shopping list of pet policies designed to drive government intervention - then you know it.

The recent Council of Europe “Recommendation of the Committeeof Ministers to member States on the protection of human rights with regard to search engines” and its twin Recommendation for social media platforms are just such documents. 

You might think that a human rights evaluation of search engines and social media would be primarily devoted to securing the rights of users to receive information free of government censorship and snooping.  For all the latter-day emphasis on horizontal rights between individuals, the primary role of human rights is and always will be to protect individuals from the excesses of the State.

But no, after a ritual nod in paragraph 2 to the importance of search engines in promoting freedom of expression, the game is given away in the third paragraph of the search engine Recommendation:

“Suitable regulatory frameworks, compliant with human rights requirements, should be able to give adequate responses to legitimate concerns in relation to referencing by search engines of content created by others. Further consideration is necessary as to the extent and the modalities of application of national legislation, including on copyright, to search engines as well as related legal remedies.”

So it seems this document is not going to be about securing the position of search engines as engines of free expression and the dissemination of knowledge, but about heaping as much regulation on them (to the benefit of other concentrated interests) as Ministers think they can get away with while remaining nominally human rights-compliant.

And so, in the main, it proves.  The ground is laid in paragraph 2, where the Committee of Ministers “considers it essential that search engines be allowed to freely crawl and index the information that is openly available on the Web and intended for mass outreach”.  This carefully worded sentence makes no mention of users having unimpeded access to the index. Crawling and indexing do little for the freedom of expression of users unless they can access search results.

When we move on to the meat of the recommendation it becomes clear that the omission is deliberate.  The document includes not just a list of recommended interferences with search engines’ freedom to operate their businesses (disclosure of information about search result methodologies, various requirements in the name of protecting personal data and ensuring accessibility to people with disabilities, member States apparently encouraged to offer public service search engines), but also of impediments to user access: non-indexing or de-ranking of content "not intended for mass communication (or for mass communication in aggregate)".

Even the single recommendation that might go some way to promoting freedom of expression is cast as a potential regulatory intervention:  that member States should encourage search engine providers to discard search engine results only in accordance with ECHR Art 10(2) and that users should be informed as to the origin of the request to discard the results, subject to respect for private life and protection of personal data.

One wonders whether a committee of Ministers would even have thought of this if search engines such as Google hadn’t already been doing it, in conjunction with websites such as Chilling Effects.  Anyway being informed of the origin of the request is a poor second to seeing a result that should never have been removed in the first place.

Restricting government access to user information is addressed weakly, in a way that (astonishingly for a human rights document) puts private and government access to personal data on an equal footing:  “ensure that suitable legal safeguards are in place when access to users’ personal data is granted to any public or private entity…”.

While a detailed appendix to the Recommendation pays greater attention to freedom of expression, for instance in its treatment of filtering and de-indexing and of access to data by governments, it also contains more specifics about what the Ministers expect search engines to be asked to do.  

The social media Recommendation follows a similar structure, stripped of the specifics about search results but with many additional recommendations about protecting users from harm and treatment of personal data.  However the appendix to the social media Recommendation looks much more like a detailed manual for implementation of the main recommendations than does that for search engines.

We are accustomed to reading politically driven policy agendas in documents emanating from the European Commission. What is so difficult about these documents is that they purport to be human rights recommendations, published under the auspices of the Council of Europe.

If human rights are now so debased and diluted that political agendas like these can be dressed up in the clothes of human rights, then human rights are in danger of losing their real value. 

That is perhaps not surprising, human rights having been diluted and eroded from all corners of the political compass.  What are in reality claims on others channelled via the coercive agency of the state are added to the list of rights; ever-increasing horizontality detracts from the significance of rights as protection against the state; and the specious assertion that rights and freedoms must be exercised responsibly ignores the fact that those who disagree with us will always seek to paint our actions as irresponsible. 

Still, perhaps we should expect little better when we charge a Committee of Ministers with responsibility for human rights.  We can hardly expect a bunch of politicians, even when wearing human rights hats, to do anything other than act politically.

See me, sue me?

When the internet swam into our vision (in my case in 1993), one of the first questions was whether putting up online content that is legal in one country risks exposure to the laws and enforcement of some other country in which the content might be illegal. 

That has happened.  The 1995 CompuServe raid, following which local German country manager Felix Somm was prosecuted and eventually acquitted on appeal, was an early example.  Others followed, such as the 2000 French litigation against Yahoo! Inc. and ultimately unsuccessful criminal prosecution of its then CEO Timothy Koogle, both over Nazi memorabilia on its US auction sites. 

Fast forward to today and we still have to ask the question.  Every so often someone in authority feels the urge to put on blinkers, engage tunnel vision and, casting the internet as chief villain, decide to view the rest of the world as an offshore haven that exists for the sole purpose of subverting his home laws.  This even happens at policy level.  EU and US authorities have both gained deserved reputations for trying to forcefeed other countries, and each other, with their pet legislative agendas.    

In the UK you could argue that we asked for it.  Our libel courts willingly adopted the startlingly parochial doctrine, first espoused in the Australian case of Gutnick v Dow Jones, that any website in the world that can be read and comprehended in the UK is published here.   Asserting our libel laws against the rest of the world on the basis of minimal UK publication provoked the US to pass the SPEECH Act, preceded by New York’s Libel Terrorism Prevention Act.

So is it any surprise if US authorities feel little compunction in trying to enforce their criminal copyright laws against UK-operated websites – even though in common with the USA we have one of the strongest sets of intellectual property laws in the world?  But in this jurisdictional race it is not judges and prosecutors but the everyday citizen who ends up in metaphorical or even real shackles.

Blinkers and tunnel vision come at a cost, most concretely the injustice suffered by unfortunate individuals who fall foul of overzealous local law enforcers in other countries.  The obvious defence is to build firewalls, cutting off the rest of the world from your content.  Even if that were possible it is the worst outcome, inhibiting every kind of discourse across borders.  The geolocation firewall does not discriminate.   

For the first time, thanks to the internet, the promise of Article 19 of the 1948 Universal Declaration of Human Rights – “to seek, receive and impart information and ideas through any media and regardless of frontiers" – has been made good.  That is to be treasured and protected, not destroyed by building walls in cyberspace.

But won’t the least restrictive jurisdictions win out and, in practice, export their values to every other country?  Won’t everyone set themselves up in the country with the fewest laws? 

Some may, and if they do it in order to evade the laws of a particular country, then it may be no surprise if that country’s legal system tries to do something about them.  But even then there is a case for restraint if, as is often the case, the suggested cure is worse than the complaint.  And within Europe, the ECommerce Directive recognises that it is more important to encourage online trade between EU states than to allow member states to enforce many types of national law against websites based in other EU countries.

But the essence of the internet is individual speech and publication.  The hundreds of millions of people who blog and tweet and contribute to discussion forums and set up innovative little websites are not about to migrate en masse to some exotic content haven.  They will stay exactly where they are in their student attics and their homes, with their schools and jobs and families and operate under their local laws.   That is exactly what they should reasonably expect to be able to do, without the fear of the police coming knocking on their door at the behest of some foreign government, and without the fear of being sued because someone somewhere else in the world can see a website that they think contravenes their own country's local law.

So does that mean that people in one country should, if they choose, be able to access material from other countries that might be unlawful at home?  Certainly.  That is the world created by the internet, there is no going back and the sooner governments recognise it the sooner we can bring some sense to all this. 

The important word is ‘choose’.  We can value the ability to choose; or every country can attempt forcibly to export its laws to every other country, resulting in a chaos of conflicting jurisdictions and perceived injustices.  It is one thing for people to have access to a choice of material created under different sets of laws.  It is quite another to extend state power across borders in an attempt to coerce people into complying with every other country’s content laws.