The Good Fairy of the Internet and her Magic Wand

Last week I attended the Index on Censorship ‘Caught in the Web’ event.  I asked a question from the floor and was put on the spot by chair David Aaronovitch about David Cameron's call for the big players to do more about child porn on the internet.  Answered along the lines of not really understanding what more Cameron thought they could do, given that the Internet Watch Foundation runs a list already; and needing to examine any proposals to see if they carry too high a price in terms of interference with freedom of expression. 

OK as far as it went, but this is what I should have said.  When politicians demand that the most visible targets (ISPs, search engines, social media platforms) should do more to stop whatever abomination is hitting today’s headlines, really they just want a good fairy of the internet to wave a magic wand and make the nastiness go away.  The trouble is that the good fairy is a myth, the magic wand rubs out good stuff and the bigger the magic wand the more of the good stuff it rubs out.  And the nastiness still doesn’t go away.

Worst of all, when each has had its turn at waving the magic wand - the child protectionists, the responsible speakers, the cultural preservationists, the extreme speech purgers, the adcensors, the promoters of the public interest, the filth filterers, the religious reverents, the porn exterminators, the benevolent regulators, the upholders of community standards, the real namers, the guardians of the general good, the copyright cops, the internet safety inspectors, the privacy protectors, the departments of public harmony, the joke jailers, the moral champions, the speech cleaners and scrubbers and all the clamouring crew of prohibitionists – what then is left?

If the fundamental human right of free speech means anything, it is that we can build search engines without fear that the State will make us convert them into suppression engines.

I am not an IP address

[Update 3 December 2014. 18 months on, this has now come alive. The 'IP address resolution' proposals flagged up in the Queen's Speech are included in the Counter-Terrorism and Security Bill introduced in Parliament on 26 November. Initial analysis here. 

The Draft Communications Data Bill Joint Committee Report in December 2012 reached some consensus around this issue: "Not all United Kingdom providers currently obtain all the data necessary to trace which subscriber is using which IP address. During the course of our inquiry we heard of various circumstances in which the lack of this data has impeded investigations. We accept that if CSPs could be required to generate and retain information that would allow IP addresses to be matched to subscribers this would be of significant value to law enforcement. We do not think that IP address resolution raises particular privacy concerns."] 

The truism that an IP address denotes a device, not a human being, is ingrained in anyone with a technical understanding of the internet.  Nothing gets a geek going like the suggestion that an IP address identifies a person.  

So when the briefing document (PDF) on last week’s Queen’s Speech said: “When communicating over the Internet, people are allocated an Internet Protocol (IP) address”, sharp intakes of IT literate breath could be heard up and down the land.  The somewhat contradictory statement a few lines later that law enforcement had a problem with being unable to match individuals to IP addresses did little to improve matters, accompanied as it was by the suggestion that addressing this issue may involve legislation.

Cybergeeks are right to be exercised about this, a technical issue but no mere technicality.

Legislating around IP addresses is a dubious idea at the best of times.  A legislative approach that embeds specific technical implementations falls foul of an important principle of lawmaking in the tech field, technological neutrality.  Professor Chris Reed explains in his book Making Laws for Cyberspace how legislating at too detailed a technical level is likely to create legal uncertainty.  Legislation that assumes or mandates specific technology is at risk of impeding new technological developments.  Technology-specific law is bad law.

Legislating at a detailed technical level also requires a sound understanding of the technology.  The Digital Economy Act was the first UK statute to mention IP addresses.  One has to wonder whether that was done with a full appreciation of IP addressing's manyfold variations.

The particular problem on which the Queen's Speech focuses is that public IP addresses are often shared, so an IP address does not necessarily identify a single end user device.  The public IP address can denote the gateway of a domestic household or of a large organisation, a point within a public network or even the gateway of an entire public network (often mobile).  So thousands of household or organisation routers and potentially millions of end user devices may sit behind a single public IP address.  This is why, when the first draft Initial Obligations Code for the Digital Economy Act was published in May 2010, port numbers (not mentioned in the Act) were included as well as IP address information.    

Ironically, one thing that DEAct did appreciate was that an IP address does not identify a copyright infringer.  Much of the opposition to DEAct was aimed at its mechanism for overcoming this by creating a presumption, which the subscriber had to rebut, that a subscriber identified from the public IP address allocated by the subscriber's ISP was responsible for repeated infringement; even though anyone with access to the subscriber’s system could have used the device identified by the IP address. 

The courts know that this is an important issue.  The speculative invoicing business depended on asserting that a harvested public IP address provided grounds on which to assert a copyright claim against a subscriber identified from the IP address and the ISP's records.  In the UK this was discussed by H.H.J. Birss in the Media Cat case:

“IP addresses  are numerical references used to identify entities on the internet.

…

“Media CAT's monitoring exercise cannot and does not purport to identify the individual who actually did anything. All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router.  All Media CAT's monitoring can identify is the person who has the contract with their ISP to have internet access. Assuming a case in Media CAT's favour that the IP address is indeed linked to wholesale infringements of the copyright in question …, Media CAT do not know who did it and know that they do not know who did it.”

Numerous US courts have made the same point, summarised in May 2012 by magistrate judge Gary Brown in K-Beech:

“In sum, although the complaints state that IP addresses are assigned to “devices” and thus by discovering the individual associated with that IP address will reveal “defendants’ true identity,” this is unlikely to be the case. Most, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper.”

Port numbers (if retained) can reach beyond the public IP endpoint to an end user device.  In combination with other contextual information it may then be possible to identify a person who was using the device.  For this reason law enforcement authorities want access to information associated with IP addresses and seek ways of matching an IP address to a unique end user device.  For exactly the same reason such schemes, even if embarked upon for the worthiest and most serious of motives, have civil liberties implications. 

These were articulated most starkly in the 1960s TV series The Prisoner.  When No. 6 said “I am not a number, I am a free man”, he did more than reject a numeric tag.  He pitted his personal autonomy against an all-controlling bureaucratic embrace: “I will not be pushed, filed, stamped, indexed, briefed, debriefed or numbered. My life is my own.”  Today Patrick McGoohan could as easily have written “I am not an IP address”.

The Convergence Green Paper that the European Commission didn’t write

The new European Commission Green Paper “Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values” seems to have been a mouthful even for the Commission’s own PR department.  The press release translates it into ‘Internet on TV, TV on Internet’ - which does give a better flavour of what the Green Paper is about.

The Green Paper is a typical Commission mixture of current technology trends (dual screening gets a mention), market statistics leavened with a few anecdotes, lobbyists’ issues of the moment and hints of interventions that the Commission may have in mind for the future.  These are all underpinned by an unwavering belief in the efficacy of State-led intervention to achieve the Commission’s chosen public policy objectives.

As is de rigeur in documents such as this, the Commission has a grand vision:

“to seize the opportunity of this changing technological environment to ensure the widest possible access to European diversified content for all Europeans and, the widest choice of high quality offers”. 

That hints of a more interventionist Fortress Europe attitude than the Commission’s December 1997 Convergence Green Paper (PDF):

“This first step is intended to pave the way for the development of an appropriate regulatory environment which will facilitate the full achievement of the opportunities offered by the Information Society, in the interests of Europe and its citizens as the 21st century begins.”

Beyond the grand vision there is some fairly controversial stuff in the new Green Paper, particularly around the possibility of extending the Audiovisual Media Services Directive both in scope and to non-EU service providers. 

But I am afraid I tired of the DG-speak.  I started to imagine the 2013 Convergence Green Paper that the Commission could have written, but didn’t. 

Here it is.

“15 years ago, in December 1997, we at the Commission published a Convergence Green Paper.   We said:

“… the Commission's Communication on electronic commerce … proposed the principle of 'no regulation for regulation's sake'.   This principle applies equally to all areas of convergence.”

We tentatively suggested five key regulatory principles that should govern our activity in the field of convergence.  They included:

“Regulation should be limited to what is strictly necessary to achieve clearly identified objectives.”

Of those five regulatory principles that we suggested in 1997, this remains the most important.  We observed then that:

“public authorities must avoid approaches which lead to over-regulation, or which simply seek to extend existing rules in the telecommunications and media sectors to areas and activities which are largely unregulated today.”

The Commission recognises that the pursuit by government of general policy goals – such as media pluralism, cultural diversity, protection of consumers and minors, media literacy – carries with it the potential for unintended consequences and regulatory failure and to undo the general good that comes from freedom of private action.  The Commission appreciates that government failure is a more significant risk than market failure.    

Adhering to the principle of strict necessity, the Commission’s goal now must be to clear away all regulatory and legislative obstacles to future innovation in the audiovisual sphere.  The only permissible exception can be regulation that is conclusively demonstrated, by the most stringent criteria, to be both necessary and effective for the achievement of a generally agreed legitimate public policy objective; which carries a demonstrably minimal risk of unintended or damaging negative consequences, risk of regulatory capture or other regulatory failure; and which does not disproportionately interfere in fundamental human rights, in particular the right of freedom of speech.

The Commission recognises that the internet has brought forth the greatest flowering of individual communication and access to knowledge since the dawn of mankind.  Speech on the internet is a delicate flower which must not be damaged.  The Commission applauds the comments in the Joint Dissenting Opinion in the recent Animal Defenders case in the European Court of Human Rights:

“there seems to be an inherent contradiction in a viable democracy safeguarded by broadcasting restrictions. … A robust democracy is not helped by well-intentioned paternalism.”

Stated simply, the Commission’s role is now to clear the field of regulation and move out of the way.  This will enable the peoples of Europe to make their own viewing and listening choices at all levels: international, nation, group, community and individual.  If some people prefer Disney to Hugo, that is an expression of their individual autonomy and right to cultural self-determination.  As such it is outside the legitimate sphere of action of the Commission.

Each person in Europe must be free to choose and pursue their own personal goals.  It is not for the Commission to formulate policy goals and then to expect private actors, economic or otherwise, to pursue objectives that we set for them.  The Commission does not know what form any future innovation will take, or what the pace of innovation will be.  Nor can it ever know.  It is not the Commission’s place to attempt predictions, still less to formulate interventions based upon them. 

The Commission does not believe that it should set concrete targets to be achieved by some arbitrary future date.  We at the Commission shiver with embarrassment at the memory of the programme to ‘Complete the European Single Market by 31 December 1992’ - for all the world like some Soviet era tractor production plan.

The Commission recognises that innovation brings change.  It is no part of the Commission’s role to save legacy actors from the consequences of change, nor to try to influence future change in a particular direction.  The Commission recognises that any adverse consequences of change for particular sectoral and vested interests are outside the Commission’s legitimate sphere of action.  The Commission strongly believes that the European taxpayer should not to be compelled to subsidise historic industries in the name of cultural diversity. 

Turning specifically to the audio-visual sector, in the 1997 Green Paper the Commission said:

"… convergence may lead to less regulation in telecommunications and media sectors, and should not lead to more regulation in areas such as IT."

And

"Convergence may challenge current regulatory approaches, particularly, with regard to licensing of networks and allocation of resources, where such approaches reflect a perceived scarcity of both radio-frequency and of content."

"…in a fully digital environment, scarcity may over time become a less significant issue, calling for current regulatory approaches to be reassessed."  

Since scarcity has now all but disappeared, other than where artificially created by regulation, the time has come to reassess current regulatory approaches. 

Ideally the Commission would propose to sweep away the archaic structures of broadcast regulation, which have their roots in the government spectrum grabs of the mid 20^th century.  However we recognise that most Member States will continue to cling to these regulatory models like the man with the red flag in front of the early motor car. 

Pragmatically, broadcast regulation is likely to wither as it becomes less and less relevant.  It is however imperative, as articulated in the 1997 Green Paper, to prevent outdated broadcast regulatory models from spreading any further, especially to the internet.  We now realise that it was a serious error in the AVMS Directive to extend regulation to so-called ‘TV-like’ on-demand services.  We will roll that back at the earliest opportunity.

The cross-border aspect of the internet is becoming increasingly significant.  The AVMS Directive does not apply to services originating outside the EU.  The Commission recognises that the people of Europe are readily able to understand that incoming foreign services are created under different sets of legal standards and to appreciate those services in that context. 

In the spirit of international cultural diversity the Commission believes that the fewest possible obstacles should be put in the way of incoming non-EU services, including where they are targeted at the EU.  The Commission would regard it as an act of unwarranted arrogance for the EU to seek to apply its content laws to services originating in non-EU countries and regions. 

The choice of European citizens to access and be informed about non-EU services that may not adhere to European content laws or standards should therefore not be denied or hindered by any Member State.  The Commission especially welcomes the opportunity for European citizens to share in the rich and diverse cultural heritage of the USA.”

Does copyright control browsing? Meltwater in the UK Supreme Court.

[Updated with CJEU judgment of 5 June 2014]
Back in July 2011 I commented on the Court of Appeal judgment in NLA v Meltwater and explained how the reach of digital copyright had accidentally been increased beyond that in the offline world.  That was as a result of accepting that transient and temporary copies created in computer memory count as copies for copyright purposes.  This potentially extended copyright control to all user activities involving a computer, including browsing the web. 

The Public Relations Consultants Association subsequently appealed the Meltwater decision to the UK Supreme Court, which has now referred to the EU Court of Justice the question of whether browsing a website requires the permission of the copyright owner.

Technically, the question is whether browsing falls within the 'temporary copies' exception of Article 5.1 of the EU Copyright in the Information Society Directive.  Lord Sumption, who gave the judgment of the UKSC, concluded that browsing did fall within the exception, and so did not require the permission of the copyright owner.  However he recognised that the issue has a transnational dimension and has important implications for many millions of people across the EU making use of the internet.  That made it desirable that the decision be referred to the CJEU, so that the critical point might be resolved in a manner that would apply uniformly across the EU.

From a broader perspective the judgment is of particular interest for the extent to which the Supreme Court recognised the disparity, if browsing does require the copyright owner's permission, between the reach of copyright offline and online.  The judgment opens by pointing out that:

"Broadly speaking, it is an infringement to make or distribute copies or adaptations of a protected work. Merely viewing or reading it is not an infringement. A person who reads a pirated copy of a protected book or views a forgery of a protected painting commits no infringement although the person who sold him the book or forged the painting may do."

It goes on to explain that in the course of the ordinary use of the internet:

"[the user's] object is to view the material. The copies temporarily retained on the screen or the internet cache are merely the incidental consequence of his use of a computer to do that. The question which arises on this appeal is whether they are nonetheless infringing copies unless licensed by the rights owner."

Lord Sumption observed that the question:

"potentially affects millions of non-commercial users of the internet who may, no doubt unwittingly, be incurring civil liability by viewing copyright material on the internet without the authority of the rights owner, for example because it has been unlawfully uploaded by a third party. Similar issues arise when viewers watch a broadcast on a digital television or a subscription television programme via a set-top box."

Having analysed the relevant EU caselaw and concluded that browsing fell within the temporary copies exception, Lord Sumption addressed the consequences of his conclusion.  He said:

"We were pressed with the argument that if the viewing of copyright material on a web-page did not require a licence from the copyright owner, he would be exposed to large-scale piracy of a kind which would be difficult to detect or prevent.

I am not persuaded by this argument. … it has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form. This state of affairs, which is recognised in the enumeration of the copyright owner's rights in articles 2, 3 and 4 of the Directive, has never been thought inconsistent with a high level of protection for intellectual property.

All that article 5.1 of the Directive achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding that the technical processes involved incidentally include the making of temporary copies within the electronic equipment employed.

… [I]f it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes."

…  [I]f merely viewing a web-page is not an infringement, that does not leave the copyright owner without effective remedies against pirates. It simply means that his remedy must be found against others who on the face of it are more obviously at fault. Nothing in article 5.1 impairs the copyright owner's right to proceed against those who unlawfully upload copyright material onto the internet, just as the copyright owner has always been entitled to proceed against those who make or distribute pirated copies of books, films, music or other protected works."

These passages exhibit a strong policy interest in achieving functional equivalence: for copyright to apply to the internet as far as possible in the same way that it did to physical copies before the digital revolution.  In that sense the Supreme Court judgment has similarities to the Canadian Supreme Court Copyright Pentalogy and the CJEU decision in Usedsoft v Oracle.

The approach articulated by Lord Sumption is the opposite of that stated by Proudman J at first instance: "The exception cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music." Lord Sumption, albeit with the benefit of later CJEU decisions in FAPL v QC Leisure and Infopaq II that were not available to Proudman J or the Court of Appeal, has made a clear statement that there is no policy reason why mere watching and listening (as opposed to downloading or printing) should be regarded as an infringement in the online world any more than in the offline world.  We now await finding out whether the CJEU agrees. [Yes, it does.]

Ten ways in which copyright engages freedom of expression

"If the protection of expression is itself a restriction on freedom of expression, then we have entered a metaphysical Wonderland that stands logic on its head, and undermines core, shared global values about personhood." Recording Industry Association of America, October 2014.

"... some restriction on expression is the inherent and intended effect of every grant of copyright". US Supreme Court, Golan v Holder, January 2012. 

Reader Alert: this is a very long (3,750 word) post.  If you would prefer to cut to the chase, here are my ten axes along which copyright and freedom of expression intersect:

1.      Expression to Ideas

2.      Expression to Opinion

3.      Originality to Facts

4.      Dissemination to Reference

5.      Zero to Perpetuity

6.      Suppliers to Users

7.      Participation to Facilitation

8.      Copying to Communicating

9.      Pennies to Prison

10.   Targeted to Scattergun

Slideshow presentation to ORGCon 2013 based on this post:

Who wins when copyright and free speech clash? from Graham Smith

The recent Donald Ashby (sub nom Ashby Donald) decision of the European Court of Human Rights has revived interest in the relationship between copyright and freedom of expression. The litigation arose because two of the defendant photographers had put on their US website pictures taken by the third at the Paris fashion shows. Under French law that requires the permission of the couture houses. The highest French Court had confirmed their conviction for criminal copyright infringement.

The photographers lost their appeal to the Human Rights Court. But despite the loss the Court’s decision does finally explode any residual myth that copyright has no impact on freedom of expression.

Article 10 of the European Convention on Human Rights protects freedom of expression as a qualified right. In Ashby the Court explicitly held that the appellants’ activities fell within the exercise of the right of freedom of expression and that the conviction interfered with that. It was therefore necessary to consider whether the interference was justified. However the Court held that in this particular case it could not find that either the photographers’ conviction or the financial penalties were a disproportionate interference. Particular account had to be taken of the Contracting State’s broad margins of appreciation for both commercial speech and the protection of rights of others. 

In the subsequent case of Neije and Sunde the ECtHR found that the appellants' criminal convictions for operating the Pirate Bay site interfered with their right to freedom of expression, since they had put in place the means for others to impart and receive information within the meaning of Article 10 of the Convention.  In this case the Court found that there were weighty reasons for the interference and held the complaint to be manifestly ill-founded and inadmissible.

Ashby provides a good opportunity to review the various ways in which copyright and freedom of expression can interact. Some have asserted that copyright and freedom of expression exist on different planes which do not intersect at all. In 2000 Mance L.J. said in Hyde Park Residence Ltd v Yelland: “Copyright does not lie on the same continuum as, nor is it the antithesis of, freedom of expression.”

18 months later Lord Phillips, giving the judgment of the whole Court of Appeal in Ashdown v Telegraph Group Ltd, said the opposite: “Thus copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.”

The US Supreme Court in Golan v Holder has recognised that “some restriction on expression is the inherent and intended effect of every grant of copyright.”

Some have argued that, even accepting that copyright does interfere with freedom of expression, the necessary balance between that and other legitimate interests is struck entirely internally within copyright legislation. Copyright is therefore not susceptible to external human rights scrutiny.

In England that argument was put to rest in Ashdown. If any doubt remained at a European human rights level, Ashby has put paid to it. As a matter of EU law, the CJEU in SABAM v Scarlet has stated that intellectual property rights are neither inviolable nor must be absolutely protected, but must be balanced against other fundamental rights including freedom of expression.

Ashby on its facts was an obvious interference with the photographers’ Article 10 rights, even if the ECtHR was unable to find the interference disproportionate. The defendants had put the photographs of the Paris catwalk shows on their public website. The fashion houses were using copyright to try to limit and control public dissemination of images of the shows. The engagement with the right to receive and impart information is clear.

Copyright can engage freedom of expression more subtly. Depending on the scope of copyright and the nature of the remedies against infringers (or in some cases even against non-infringers), when applied to any particular set of facts there are many ways in which copyright can step over the line and disproportionately interfere with Article 10 rights.

It is difficult, perhaps impossible, to identify clear dividing lines between proportionate and disproportionate interference. This is partly because copyright is itself regarded, at least in European human rights law, as a property right that has to be weighed in a balancing exercise with other rights such as freedom of expression. It is also because the degree of interference may result not just from one aspect of copyright, but from the combination of several; and because the impact depends on the factual circumstances of each individual case.

Different features of copyright can engage freedom of expression on different axes. In this sense copyright can perhaps be likened to a mixing console, on which each aspect of copyright that potentially engages freedom of expression is represented by a slide control. One control set to maximum may itself be disproportionate, either per se or in its application to a particular set of facts. Equally the combined effect of several controls set to less than maximum could also be disproportionate.

Take the example of an “originality” slide control. If the slider were set at a level that restricted the use of high level ideas as well as detailed expression, then the interference with the Article 10 right might be disproportionate in itself; but even if not, the interference would be that much the greater if the remedy for infringement were an injunction preventing publication as opposed to a small amount of monetary compensation that permitted continuing dissemination.

Rather than attempt to identify a clear line between proportionality and disproportionality, or examine how rights should be balanced against each other, this article aims to do no more than describe the mixing console: identify each slider whose movement up or down the scale is capable of engaging Article 10 rights to a varying degree.

The focus of this article is on engagement with freedom of expression and nothing else. Arguments of all kinds can be deployed for and against particular aspects of copyright. No given argument necessarily has anything to do with freedom of expression. If it does not, it won’t feature here.

We should not forget some less prominent creatures of statute such as legislation prohibiting circumvention of copyright protection measures, and EU database right (which is turning out in some respects to be more restrictive than copyright). However for the sake of simplicity this article is limited for the most part to copyright. It is written largely from a UK perspective. Copyright in other countries may differ.

The copyright and freedom of expression mixing console

Article 19 of the Universal Declaration of Human Rights states:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

In short, the fundamental right of free speech relates to the free flow of ideas, opinion and information.

Our first group of slide controls concerns the extent of copyright and its interaction with each of these three aspects of freedom of speech.

Slider 1: From Expression to Ideas

It is a truism, if not always an illuminating one, that copyright protects expression and not ideas. Jacob J. (as he then was) cautioned in IBCOS Computers Limited v Barclays Mercantile Highland Finance Limited [1994] FSR 275 that while merely taking a sufficiently general idea does not infringe, to take a detailed “idea” may do so. It is a question of degree.

Wherever and however fuzzily this line may be drawn, one reason why it exists is the recognition that all expression, however original, owes something to what has gone before –and the more general the previous knowledge the more likely it is to do so. To insist that all expression should embody only completely original ideas, shorn of anything that has gone before, would be to require silence. If we were to push the expression/idea copyright slider too far, the babble of voices would gradually diminish to nothing. Well of course it wouldn’t, since such a law would lose all legitimacy long before silence fell. But the serious point is that the idea/expression slide control engages freedom of expression more intensely towards the ideas end of the scale.

The proposition that the idea/expression dichotomy engages freedom of expression was recognised in, for instance, the US Supreme Court decision in Eldred v Ashcroft:

“… copyright law contains built-in First Amendment accommodations. … First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. … As we said in Harper & Row, this idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression. … Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.”

At the other end of the scale it may be said that if expression is protected too narrowly, then creativity is inhibited through lack of sufficient incentive to multiply its fruits. This is a common enough argument. Copyright was described in the Harper & Row decision of the US Supreme Court as ‘the engine of free expression’. This argument engages a fundamental right of freedom of expression only if one regards the State as having a positive obligation to promote freedom of expression, as opposed to simply refraining from interference with it.

Slider 2: From Expression to Opinion

The right of freedom of expression is most robustly protected by international human rights law when opinion, especially political opinion, is at stake. So European human rights law has developed a hierarchy in which individual political expression is more robustly protected than, say, commercial speech. As reiterated in Ashby, the ECHR allows Contracting States a greater margin of appreciation (i.e. allows them more latitude to interfere) with commercial speech.

The potential for copyright to interfere on the opinion axis is high, even when an element of expression is taken. Hence the existence of various exceptions for activities such as criticism and review and for parody. These define circumstances and conditions in and under which it is legitimate to take some element of expression. However, specific exceptions are not always adequate. In the USA the more flexible fair use defence is recognised as an essential part of copyright’s accommodation with the First Amendment:

“We then described the “traditional contours” of copyright protection, i.e., the “idea/expression dichotomy” and the “fair use” defense. Both are recognized in our jurisprudence as “built-in First Amendment accommodations.” (Golan v Holder)

In Europe, for political expression direct recourse has sometimes successfully been made to external Article 10 considerations. In the Netherlands the Nadia Plesner Darfurnica case, although it concerned Community design right rather than copyright, is an example of freedom of political expression trumping the exercise of an intellectual property right.

Slider 3: From Originality to Facts

Works of authorship – literary, artistic, dramatic and musical works - attract copyright only if they are original.

Originality is closely related to infringement. For instance the infringement test as formulated by the EU Court of Justice in Infopaq is whether a part of the author’s own intellectual creation has been taken.

So the level at which the threshold for originality is set affects not only whether a work is protected at all by copyright, but what kind of use of the work the copyright owner can prevent. The degree of use that can be prevented is also affected by whether the infringement threshold is, for instance, the taking of any part or the taking of a substantial part.

Where the work contains factual information, a low originality threshold can protect not just the author’s form of expression, but the facts themselves. Facts are at the most basic level of information that humans may wish to impart or receive. The extract from Eldred v Ashcroft quoted above makes clear the engagement with freedom of expression.

A low originality threshold may overly restrict the ability to recommunicate facts imparted through the means of a copyright work. The potential for this consequence is why exceptions exist such as fair dealing for the purpose of reporting current events. These may be quite limited. For instance in UK law the exception does not apply to photographs.

Beyond copyright the ability to recommunicate facts is increasingly restricted by database right, which is specifically aimed at protecting otherwise unprotectable collections of data. Database right has few exceptions, an investment rather than an originality threshold and (as currently interpreted by the courts) hair trigger infringement criteria.

Slider 4: From Dissemination to Reference

Copyright has always sought to prevent the dissemination of infringing copies. It has typically stopped short of preventing people from referring to the existence of infringing material, whether in a library index, in a footnote to an article, in a newspaper or whatever.

When copyright, in its enthusiasm to prevent the spread of infringing copies, seeks to prevent people from acknowledging their existence or pointing to where they may be found, it engages the right of freedom of speech.

In the digital and online world it does so most clearly when it seeks to characterise linking and similar acts as infringement, or bears on the creation and use of search engines. For activities such as image or video search the engagement may take on further aspects, for instance if effective referencing depends on the ability to make and store a thumbnail of the image or of a frame of video.

Slider 5 From Zero to Perpetuity

It is difficult to identify any particular duration of copyright that triggers engagement with freedom of expression; although if it is accepted that any copyright protection necessarily affects freedom of expression, then the longer the duration the greater the interference. The longest durations of copyright tend to give rise to significant orphan works issues - an especially visible engagement with the freedom to receive information.

Attempts in the USA to challenge copyright extensions on First Amendment grounds have not fared well. In Eldred v Ashcroft term extension to life plus 70 years involving resurrection of expired copyright for some works was held not to offend against the First Amendment. In Golan v Holder introduction of copyright for foreign works previously in the public domain was held not to violate the First Amendment.

Our second group of slide controls concerns who infringes and by doing what.

Slider 6 From Suppliers to Users

The wider the net of infringement is thrown, the greater the scope for copyright to engage with freedom of expression.

Traditionally copyright tended to concentrate on plagiarists or creators who ‘overborrowed’ from the work of others and on manufacturers and distributors.

Copyright bit hard on those at the head of the duplication supply chain: the owners and operators of printing presses, vinyl pressing plants, CD manufactories. It bit less hard on the middlemen between them and the final purchaser. In general they infringed only if they knew they were dealing with infringing copies.

At the point of retail sale it was not an infringement to purchase an infringing item. Even less was it an infringement to read or view an infringing item. Pre-digital, the burden of determining what was and was not infringing was thought not appropriate to place on the user of copyright works.

Digital technology has changed all that. The ubiquity of temporary and transient copies within user devices has provided the opportunity to argue that mere enjoyment of copyright works can infringe, and on a strict liability basis at that.

Enjoyment as infringement is in broad terms the issue currently before the UK Supreme Court in Meltwater (sub nom Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Limited and others). It is a telling indication of how far things have moved in the digital era that the judge at first instance in that case was able to say that the temporary copies exception “cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music.” (emphasis added)

Users and consumers are the least well equipped to determine whether something is protected by copyright, whether the purpose for which it is to be used requires authorisation, and if so whether it is authorised or not. In human rights terms, placing such a liability burden on the user may chill the right of freedom of expression. since the user may be deterred from legitimately accessing information and knowledge.

Slider 7 From Participation to Facilitation

This issue concerns the degree of participation in an infringing activity necessary to be regarded as an infringer. Imposing liability on those who volitionally do the act or cause it to be done is (questions of strict versus fault-based liability apart) uncontroversial. But if liability is extended to those who merely facilitate or enable an infringement, that is likely to have an impact on legitimate activities which otherwise promote the dissemination of lawful material. The right of freedom of expression is consequently engaged.

Similar issues arise where accessory liability rules (such as those of joint tortfeasorship) impose liability on one person for the infringing act of someone else. The English courts have tended to draw a reasonably clear line between facilitation or assistance (non-liable) and involvement of a kind that makes the other person’s infringement one’s own (liable).

A particular area of potential conflict concerns online intermediaries. Conduits, hosts and other similar entities are the engines that drive the free flow of information on the internet. As platforms and pipes they can be regarded as facilitators. Many seek to characterise them as profiting from infringement and duty bound to prevent the use of their services by infringers. Regardless of the rights and wrongs of that debate, it has long been recognised that placing liability burdens on intermediaries has the potential to interfere with freedom of expression. This was specifically recognised in Recitals (9) and (46) of the Electronic Commerce Directive, which provided liability shields for conduits, caches and hosts.

Potential, as much as actual, risk of liability is capable of engaging with freedom of expression if a liability regime incentivises the removal of material that may not in fact infringe. This is often raised as an issue with ‘notice and takedown’ regimes.

Slider 8 From Copying to Communicating

It is natural to think that copyright is about copying. Indeed it is, but not only so. A whole range of acts restricted by copyright now exists. Some types of restricted act are more prone directly to engage freedom of expression than others. One of the most obvious is communication to the public, especially when deployed against linking.

Sir Tim Berners Lee said in the early days of the Web:

“The first amendment to the Constitution of the United States … addresses the right to speak. The right to make reference to something is inherent in that right. On the web, to make reference without making a link is possible but ineffective - like speaking but with a paper bag over your head.”.

The question of linking as infringement is a live issue. It is the subject of the current Svensson reference to the CJEU, in which some rightsowners are asserting a right to prevent others from linking without permission to authorised copyright material on their own sites.

The right of freedom of expression is also engaged in the context of links to unauthorised material. Cases such as Newzbin in the UK have held that at least in certain behavioural contexts some kinds of linking can amount to infringement by unauthorised communication to the public of the linked-to material.

The third group of sliders concerns Remedies

The degree of interference with freedom of expression is not just a question of liability, but also of remedies. The appellants in Ashby complained separately about the conviction for copyright infringement and the amount of the financial penalties.

Slider 9 From Pennies to Prison

The nature of any remedy enforcing an aspect of copyright that engages freedom of speech will bear on the proportionality of the interference with freedom of speech. Here we simply list some relevant factors in assessing the proportionality of remedies against infringers:

- Criminal versus civil liability.

- For criminal liability: imprisonment versus fines.

- Compensatory awards versus aggravated, exemplary or punitive damages.

- Compensatory awards versus fixed (statutory) damages.

- Injunctions against future dissemination and the penalties for breach of an injunction.

Slider 10 From Targeted to Scattergun

Remedies that are not limited to the dissemination of infringing material, but have the potential to interfere with access to legitimate non-infringing material or activities, engage the right of freedom of expression in a particularly direct manner. Suspension or termination of internet access is one obvious example.

The engagement is more apparent when remedies are made available against parties such as intermediaries who do not infringe or, if the law does provide that they infringe, for whom freedom of expression is acutely engaged as a result of the nature of their activities (see Slider 7).

The CJEU in SABAM v Scarlet held that broad indefinite filtering injunctions against internet access providers (and against hosts in SABAM v Netlog) were incompatible with the freedom of expression rights of users of the services:

“that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

…

Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other."

The UK courts in cases such as Newzbin2, Dramatico v BSkyB and EMI v BSkyB have recognised that blocking injunctions against ISPs engage the freedom of expression rights of internet users.

Where the site requested to be blocked is unrepresented before the court and the defendant ISPs do not contest the injunction, procedural safeguards may be relevant to ensure that the court is fully equipped to evaluate the implications for freedom of expression of internet users.

1971 revisited – who will be the first Charter martyr?

Should the Crime and Courts Bill become law it looks likely that some publications, perhaps led by the more independent spirits, will decide not to be regulated under the Royal Charter recognition scheme.  The Spectator has said it won’t sign. Ian Hislop has said that Private Eye is unlikely to. 

Not to join the voluntary Charter club of officially respectable news publications would be a brave decision, since it risks a heavy penalty: exemplary damages if found liable for a Charter-related claim (defamation, privacy and some others); or an order to pay an unsuccessful litigant’s legal costs even if the publisher wins. 

Will a non-signatory then refuse to pay?  At this point it gets quite interesting.  Human rights arguments may possibly take the sting out of sanctions for a Charter refusenik.  But if it comes to it, when a publication’s assets are seized - not for breaking hacking laws, or for bribing public officials, or for doing anything else unlawful, but in the final analysis simply because it refused to join the official club - the State coercion that lurks in the shadows behind this scheme steps blinking into the light. 

The notion that this is a voluntary arrangement, that there is some fundamental difference between State regulation and statutory underpinning, is then exposed for the fiction that it is.  We are back in the territory of village Hampdens, Milton, John Wilkes and the rest.  Some courageous little journal (or perhaps, if the clauses remain in their current form, some unfortunate smalltime blogmeister) will have the opportunity to become a Charter martyr.

The last time something comparable happened was not in the 17^th century, but 40 years ago.  A plan with remarkable similarities to the Charter, devised to tempt an unruly and irresponsible bunch of institutions into joining a State approved scheme, failed spectacularly when said bunch of irresponsibles refused to play the game that the government of the day had designed for them. 

The scheme was the 1971 Industrial Relations Act.  The irresponsibles were the trade unions.  At the heart of the Act was a voluntary registration scheme.  The purpose of registration was, according to Employment Secretary John (later Lord) Carr: “to make trade unions responsible organisations and with freedom upon that foundation of responsibility to conduct their activities in the ordinary way as responsible representative bodies.” (Hansard, 26 November 1970).   Familiar stuff.

A registered union had to have its rule book approved by the Registrar. Unions had a choice whether or not to register.  But if a union didn’t register it was at risk if its members went on strike.  Unlike a registered union it had no immunity from liability for inducing a breach of contract.  It was thus exposed to injunctions preventing strike action.   

Behind all this were teeth, in the shape of the specially created National Industrial Relations Court, to which the Act gave jurisdiction over labour disputes. 

The corporatist-minded Heath government, whose brainchild the 1971 Act was, never seriously considered that the unions would not register.  But that is what happened.  Many unions, determined to maintain their independence from the State, refused to accept State regulation of their activities and deregistered either from the start or later on during the lengthy saga of resistance to the Act.  They took the loss of immunities on the chin. 

Things got worse for the government.  Strikes, NIRC injunctions, disobedience, refusal to pay fines for contempt of court, strikers queuing up for martyrdom, imprisoned strikers rescued by the Official Solicitor.  The government’s pet industrial relations scheme finally lay in shreds. 

This time around hold-outs will come as less of a surprise, and will not be backed by an organised mass labour movement.  Seizure of assets to pay exemplary damages or costs orders, rather than imprisonment or fines for contempt, are the more likely end-point of the Charter scheme. 

Once the scheme is in place the government will have no way of determining who is on the receiving end of sanctions.  Politically that is a massive hostage to fortune.  Like the 1971 Act and its imprisoned shop stewards, will the Charter eventually founder under the weight of public opinion when the might of the state is deployed not against a multinational publishing empire, but some small magazine or refusenik blog?

The War on Gossip renewed

Should the Crime and Courts Bill become law in its Levesonised form, it will have the dubious distinction of being the first UK statute in which the word ‘gossip’ appears.  As such, it can perhaps be seen as a new phase in the War on Gossip commenced by Warren and Brandeis in their seminal article “The Right to Privacy”, published in the Harvard Law Review in December 1890.

Most of the article consists of a measured and closely reasoned articulation of a right of privacy from the perspective of the individual.  But it opens with a tirade against the press which contains a more than passing swipe at modern civilisation in general.  While focusing to a degree on the victim, this also displays a positively Reithian mission to elevate the morals of the uneducated classes and save them from the evils of gossip. 

The passage speaks for itself (paragraph breaks inserted):

“Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

Nor is the harm wrought by such invasions confined to the suffering of those who may be the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality.

Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.

Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.”

So the great unwashed have to be rescued from their addiction to gossip.  Whether or not one regards that as paternalistic tripe, who could have predicted that the UK Crime and Courts Bill 2013 would be the vehicle that finally gives statutory force to the War on Gossip?