IPO opinions – inside or outside copyright?

One concrete recommendation of the Hargreaves Review is that, in an effort to reduce uncertainty and confusion about what infringes copyright, the UK government’s Intellectual Property Office should be able publish statutory opinions. 

Hargreaves proposes that these official opinions would clarify copyright law, specifically exceptions to copyright, where new circumstances have arisen, or where there is evidence of confusion about what copyright allows.  While these opinions would not be binding, the courts would have a duty to take account of them in cases to which they are relevant.

This could be a good idea where the question of what does and does not infringe can be answered by looking no further than the copyright legislation.  The IPO would interpret the statutory provisions, a task for which it could be well suited (if it can be guaranteed lobby-proof, but that is another issue). 

However the present reality is quite different.  To answer the most difficult digital and online copyright infringement questions the courts often have to look beyond the copyright legislation.  This is largely a result of the very imbalance in copyright protection that Hargreaves has identified and says must be fixed.  The courts have to fish in other waters for ways of reining in copyright’s digital overreach or, in the other direction, of catching perceived bad online actors whose activities do not fall neatly within the copyright statutes.

Take format-shifting.  It is often suggested that millions of people in the UK infringe copyright - even if only technically – by copying legitimately acquired music tracks from CDs to MP3 players via their computers.  What could an IPO opinion usefully say about this? 

In June 2006 the BPI (the representative voice of the UK recorded music business), making submissions to the House of Commons Culture Media and Sport Committee, said that it would not pursue litigation against end-users who did this for their own private use.  An opinion would have to consider whether a forbearance to sue can amount to consent sufficient to negative infringement, and whether the BPI’s statements (both its written memorandum and its oral evidence) did amount to such consent.  The opinion might also usefully consider whether an estoppel had arisen, (a legal doctrine that would prevent the BPI withdrawing at will any consent or forbearance), and whether the estoppel was permanent or time-limited. 

This analysis is at the very edge of and, in some respects, outside the boundaries of the copyright legislation.  It is far removed from the scope of a statutory exception.  Yet in the present state of copyright legislation, the BPI statement from 2006 is one of the most relevant points to consider if someone wants to know if format-shifting is legal in the UK.  Would the IPO relish the task of taking that on?

Similarly courts considering digital copyright infringement issues in the UK and Europe have grappled with, and sometimes deployed, legal doctrines including implied consent, derogation from grant, freedom of expression under Art 10 European Convention on Human Rights and its equivalents, involuntary copying, public interest or benefit, the EU Ecommerce Directive and accessory liability.  

If and when the scope of copyright is corrected  there should be less need for the courts to look for answers outside the four corners of the copyright legislation.  The same would apply to IPO opinions.  Does this suggest that copyright scope has to be fixed before the IPO can perform a useful role in publishing statutory opinions?

Hargreaves and the copyright cake

An impressive feature of the Hargreaves report is how it challenges, in a rational and measured way, some fervently held beliefs about copyright yet without obviously appearing to do so.  

This is most evident in the report’s approach to exceptions.  There are two quite different views of copyright exceptions.  The one that holds sway today is that copyright owners have a fundamental right to prevent and control all copies of their works, of whatever type and made for whatever purpose; and that any exception derogates from that right.  On this view copyright constitutes a perfectly formed circular cake, anything more than a gnat’s bite out of which has to be compensated.

The second view is that copyright is an irregular cake, the appropriate shape of which has to be considered and determined, and that copyright exceptions are no more than another tool with which to mould the cake.  They sit alongside aspects such as the originality threshold, substantial part and the idea/expression dichotomy.

Hargreaves has filled his report with material that in substance  encourages the moulding view, without explicitly taking issue with the bite out of the cake approach.  This is evident in his references to the need for copyright to be balanced in terms of its economic and social effects, and his characterisation of fair use as a means of fixing imbalances.  So Hargreaves says at various points in his report:

“Policy should balance measurable economic objectives against social goals and potential benefits for rights holders against impacts on consumers and other interests. These concerns will be of particular importance in assessing future claims to extend rights or in determining desirable limits to rights.” 

“We simply invite Government to consider that as copyright becomes increasingly economically important, it is vital that economic considerations are fully weighed in the balance. This is especially so given the role, noted in the previous chapter, that copyright is acquiring of regulating the permissibility of technologies, such as consumer recording devices and web search engines. If the current imbalance in the debate on copyright is allowed to continue, the economic price will be high.”

“Economists regard copyright as a trade off between the positive effects of the incentives provided to creators and commercialisers of content [and] the negative effects of establishing monopoly rights for those parties, which have the potential to restrict supply and to inflate transaction costs.”

And the Report’s supporting law and economics paper observed (albeit among various references to exceptions as permitted private ‘takings’ of property):

“From a general perspective, the task may be well described as drawing monopoly as narrowly as possible so as to maintain incentives for creative activity while simultaneously using exceptions to avoid unacceptable impacts on objectives such as free speech and to avoid incurring overwhelming transactions costs.” (Dnes)

Against this repeated emphasis on the need for copyright to be in balance, paragraph 5.5 of the report acknowledges that the three step test embodied in EU law reflects the bite out of the cake stance.  The report seems to regard this more as a legal impediment to achieving balance than necessarily a soundly based approach. 

In this the report echoes Sir Hugh Laddie’s famous Stephen Stewart lecture in 1995, in which not only did he draw attention the benefits of flexible fair use such as future-proofing, but roundly criticised “bite out of the cake”:

“Rigidity is the rule.  It is as if every tiny exception to the grasp of the copyright monopoly has had to be fought hard for, prized out of the unwilling hand of the legislature and, once conceded, defined precisely and confined within high and immutable walls.  This approach also assumes that Parliament can foresee, and therefore legislate for, all possible circumstances in which allowing copyright to be enforced would be unjustified.” (Laddie, Copyright: Over-strength, Over-regulated, Over-rated?)

Both Laddie and Hargreaves, in their insistence on balance and that the scope of copyright should extend no further than strictly necessary, contain echoes of an even more famous commentary on early UK copyright legislation:

“For the sake of the good, we must submit to the evil.  But the evil ought not to last a day longer than is necessary for the purpose of securing the good”

“It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated and the least objectionable way of remunerating them is by way of copyright” (Lord Macaulay, speech to the House of Commons, 1841)

Far from being regarded as a (to a limited extent) necessary evil, copyright now has been elevated to a sacred object of worship.  Those who question it even slightly risk being reviled as heathens and heretics by the guardians of the pure and eternal (or at any rate life plus 70 years) flame of copyright. 

Hargreaves’ decision not to recommend fair use, largely it appears as being legally too difficult, could be seen as rather tame.  However it is certainly understandable if the goal was to bring evidence, economics and rationality to the fore - which sparking off a doctrinal storm would not have helped achieve.  In that context Hargreaves may have laid the ground for a more radical approach, once the implications of its analysis have sunk in.

As to the perceived legal impediments to fair use, the report might have observed that the rights industry lobby is not slow to secure changes in international copyright law when it thinks its interests are threatened by technological change.  In any event, EU Directives are only secondary EU legislation.  Like the EU, the USA has signed up to Berne, TRIPS and the three step test, yet it has retained its fair use provisions.  So why not boldly do the same? 

After all, fair use is not an alien US import.  It was originally developed in English law, and only superseded (if indeed it was) by specific fair dealing exceptions as a result of the codification of UK copyright in the 1911 Copyright Act.  It would be a fitting way to mark the 100^th anniversary of the 1911 Act to acknowledge the error and put UK copyright back on track.

Twitter will notify users of disclosure applications

Interesting to see Twitter saying at e-G8 that they will notify users if they are the subject of a court application against Twitter to disclose their identities.  As pointed out in a previous post, that is possible under the English Norwich Pharmacal procedure, and was suggested by Aldous L.J. in Totalise v Motley Fool, but rarely if ever happens.  Maybe now it will catch on. 

More ATVOD decisions - one in three under appeal.

ATVOD has published two more scope determinations.  On 29 March 2011 it added Formula 1 Video and Telegraph TV to the list of services that it has decided are TV-like.  The Telegraph TV decision is being appealed to OFCOM, as are previous newspaper and magazine decisions against Sun Video, News of the World Video, Sunday Times Video Library and Elle TV.  In total seven of ATVOD's 22 published decisions to date are currently under appeal to OFCOM.

Meanwhile the Periodical Publishers Association has complained to ATVOD that the intention of the Audiovisual Media Services Directive is being ignored and that ATVOD is interpreting the implementing regulations in an unreasonable manner.

TV-like regulator pursues the national press

ATVOD, the newest UK content regulator, has started to test the limits of its powers to require providers of TV-like video on demand to notify their services and pay it a fee, currently £2,900 per service per annum. It has published 20 ‘scope determinations’, each one deciding that the service in question is in scope and subject to ATVOD regulation.


The determinations include three especially high profile decisions about national newspapers, all of which ATVOD says are expected to be appealed to OFCOM, the overall UK communications and broadcast regulator. ATVOD asserts that the video content on the Sunday Times video library, Sun and News of the World websites are TV-like video on demand services and fall within its jurisdiction. It has made a similar determination for Elle magazine. If ATVOD is right then the services must conform to stricter content rules than an ordinary website and are subject to ATVOD’s complaints procedure.

Seeking to bring national newspapers within scope is particularly controversial when the EU Audiovisual Media Services Directive, which determines the limits to ATVOD’s jurisdiction, states that it should not cover electronic versions of newspapers and magazines. The press has never had broadcast-style content regulation or rules imposed on it. To do so would rightly be seen as a gross intrusion on press freedom. That is why the carveout is in the Directive.

Unsurprisingly, the newspapers have argued to ATVOD that the video content on their websites is not a separate service and, among other objections, that it falls within the Directive’s exclusion for electronic versions of newspapers and magazines. ATVOD is undeterred:

"ATVOD has no desire or remit to regulate the press – whether online or offline – but we do have a duty to be even-handed and apply the new statutory regulations in a fair and consistent manner.

Where video content appears as an integral part of an online version of a newspaper, for example alongside a text based story, then the service falls outside our remit: it is indeed excluded by law. Many services provided by newspapers and magazines fall exactly into this category and can expect to hear nothing from ATVOD.

But that is not what happens in these particular services. In each case a catalogue of ‘TV like’ programmes is offered as a discrete service, comparable with many others. There are clear differences between these services and on-line versions of newspapers. It would make no sense to exclude viewers from regulatory protection simply because an on demand programme service shares a website with an online newspaper or magazine."

So it’s OK to have video on your newspaper site, but woe betide anyone who provides a discrete list of the video content.

When the then Secretary of State for Culture, Media and Sport Andy Burnham introduced the regulations that put this regulatory system in place, he said this about scope:

"The definition is narrow and covers only mass media services whose principal purpose is to provide television-like programming to users."

It is not easy to see these sentiments reflected in ATVOD’s current approach to newspaper sites. The outcome of the expected OFCOM appeals will be awaited with interest.

RIPA and read e-mails (reprise)

One aspect of the saga over whether RIPA applies to e-mails or voicemails after they have been read is the weight that has sometimes been given to Lord Woolf's comment in the R (NTL) v Ipswich Crown Court case:

"Subsection (7) has the effect of extending the time of communication until the intended recipient has collected it."

On the face of it this could lend support to the view that sub-section (7) extends the time of communication no further than collection, so that it would not be an interception to hack into stored e-mails after they have been read by the intended recipient. However, in the NTL case the e-mails were not kept for any significant time after they were read:

"NTL has a computer system which automatically stores e-mails from the relevant internet provider. In the present case those e-mails were routinely overwritten (in other words destroyed) one hour after being read by the recipient. An unread e-mail is kept for a limited period."

When Lord Woolf referred to collection, he did so against the factual background that the e-mail would be deleted shortly after reading. His comment did not address a scenario in which the e-mails were retained after reading. That context is reinforced by the full quotation:

"Subsection (7) has the effect of extending the time of communication until the intended recipient has collected it. It is essential on the evidence in this case that if NTL are to preserve the material, they take action before the intended recipient has collected the e-mail."

So it was the position before collection, not after, with which Lord Woolf was concerned.  Understood in its factual context, the NTL case sheds no light on the question of whether RIPA applies to an e-mail or voicemail after it has been read, but is still in the inbox.

Mass file-sharing claims - the Norwich Pharmacal fallout begins

A significant step towards changes in the practice governing mass identity disclosure orders in copyright infringement cases has been taken with His Honour Judge Birss QC's judgment in Media Cat Ltd v Adams, a P2P filesharing case, published on 8 February 2011. 

The judgment in substance concerned an unsuccessful attempt by Media Cat to discontinue copyright infringement proceedings against 27 defendants whose internet connections Media Cat claimed had been used for P2P copyright infringement.  After the hearing the court was informed that Media Cat had ceased trading due to insolvency and that its lawyers, ACS Law, were closing permanently on 31 January 2011.  

In the course of his judgment Judge Birss commented on some broader issues surrounding the "Norwich Pharmacal" procedure.  Media Cat used this procedure to obtain court orders against ISPs requiring them to disclose the identities of its customers corresponding to the internet protocol (IP) addresses via which Media Cat believed that unlawful filesharing had taken place. 

The weakness of the Norwich Pharmacal procedure is that the only parties usually present at the hearing are the rightsowner applicant and the judge hearing the application.  The ISP may be present if it chooses, but does not have to be.  The person apart from the rightsowner with a real interest in the application - the customer whose identity will be disclosed - is normally unaware that the application is taking place. 

Judge Birss commented, after explaining the importance of Norwich Pharmacal orders:

"Nevertheless there is a potential difficulty with the Norwich Pharmacal process which is put in focus by the cases before me.  The respondent to the Norwich Pharmacal application for disclosure - while obviously wishing to ensure that an order is not made when it would be inappropriate to do so - has no direct interest in the underlying cause of action relied on." 

This echoes comments made some years ago by Aldous LJ in Totalise v Motley Fool (see here):

“It is difficult to see how the court can carry out this task if what it is refereeing is a contest between two parties, neither of whom is the person most concerned, the data subject; one of whom is the data subject's prospective antagonist; and the other of whom knows the data subject's identity, has undertaken to keep it confidential so far as the law permits, and would like to get out of the cross-fire as rapidly and as cheaply as possible.”

Judge Birss went on to comment:

"in my judgment when a Norwich Pharmacal order is sought of the kind made in this case, it may well be worth considering how to manage the subsequent use of the identities disclosed.  Perhaps consideration should be given to making a Group Litigation Order under CPR Part 19 from the outset and providing a mechanism for identifying test cases at an early stage before a letter writing campaign begins.  ... Perhaps a court asked for a Norwich Pharmacal order of the kind made here should consider some similar form of supervision [to that in a search and seize order] from an experienced neutral solicitor."

My previous post on this topic suggested some other possible safeguards: that a technical assessor might sit with the judge hearing the application for disclosure of identities; and that the customers whose identities stood to be disclosed might be notified of the application and permitted to make anonymous representations to the court hearing the application.  Whatever the measures adopted, we may now seeing the beginning of a move towards introducing greater safeguards, at least in mass application cases.