Copyright Laws and Regulations in the UK and EU

Copyright Laws and Regulations in the UK and EU

“Copyright law has been drafted with an analogue world in mind, and has not been able to cope adequately with the digital era. Discuss this statement paying special attention to European and UK case law”.

“The answer to the machine is in the machine”. By this sentence, Charles Clark launched the idea that the copyright would finally enter in a new era of management and enforcement [1]. It is now well known that protected works can be digitized, uploaded, downloaded, copied, disseminated without any effort or cost, in open computer networks such as the Internet. [2] Not only is it really easy to digitize works, it has by far been applied to systems all over the world, whether that may be for teaching purposes for instance University of Sussex’s study direct website where all the students across the campus can access their course materials instantly; preservation purposes for instance ‘Google, Microsoft, Project Gutenburg and the European Digital Library project seek in different ways to make already published content available in online digital form [3]; or even governments who want to get information from the public on their decision have set up blogs, a prime example being Scottish government’s online National Conversation blog. The rapid development in this area disseminated the need for extensive developments in the law mainly copyright laws to keep a check and balance out the rights of copyright owners and the public.

Hence, it was not a surprise that the Labour Party in the elections of May 2005 won the elections on the basis of what was much needed in the society at that time. I state the manifesto as it said:

Copyright in a digital age: We will modernize copyright and other forms of protection of intellectual property rights so that they are appropriate for the digital age. [4]

Hence, I base this essay on copyright development including any problems faced in this era, InfoSoc Directive 2001 exceptions and case law on peer-to-peer (P2P) systems.

One of the main issues faced by the copyright owners is of assignment of liability. In response to the BERR consultation, the UK government imposed two main duties on ISPs. Firstly, the ISPs under the new law are obliged to notify any one accessing infringing material for instance there is no doubt in saying that many of the people studying in the University of Sussex have received letters regarding their infringement of programmes online. This usually occurs when accessing live matches online. Secondly, the government has imposed a duty on the ISPs to provide information of infringing users to the respective owners of the right infringed upon court orders. Hector explains the new law as that ‘the government has chosen not to impose a regime necessitating the removal or slowing of such persistent infringers’ access to the service.’ [5] However, a different approach in relation to the second duty imposed upon the ISPs has been seen in European Court of Justice (ECJ) case of Productores de Musica de Espana v Telefonica de Espana SAU [6]. In the case, Promusicae, a non-profit-making organisation of producers and publishers of musical and audiovisual recordings, brought an action against Telefónica. The purpose of the action was to obtain the disclosure of personal data relating to use of the internet by means of connections provided by Telefónica with a view to bringing civil judicial proceedings against users who, via the KaZaA file exchange programme, were allegedly improperly accessing phonograms in which members of Promusicae hold the exploitation rights [7]. The ECJ applying the Communications Directive 2002 held that ISPs could not disclose personal information of the alleged downloaders, balancing the right with Article 8 of ECHR a right to respect of private life. Hector states that in order to be free of such problems, A Digital Rights Agency, as suggested in the UKIPO’s report as to be funded and run by rights-holders and ISPs under the government’s watchful eye, may well be a further mechanism to pressurize and go beyond their legislative obligations and take further voluntary actions. In the report, the Digital Rights Agency was recommended to have various tasks such as creation of awareness for infringement of the copyright laws, a forum of dialogue, a place for negotiation and solving of issues relating to such infringement and development of code and regulations for ISPs and other institutions in the society which need to implement such codes to reduce their liability in such matters. [8]

Another issue apart from the ISPs and InfoSoc Directive is the issue of copyright duration. Under s 13 CDPA 1988, copyright duration for sound recordings, the European Commission facing pressure from the sound-recording industry was partially convinced that the copyright length should be increased from 50 years to 95 years from the end of the year of publication as it is under section 13 CDPA 1988 to incorporate music produced in 1950s and 1960s. However, it was not received with much enthusiasm at the European Parliament and with Member States, which only agreed to change this duration to 70 years from the end of the year of publication. Hence, no such change took place. However, it can be argued that even after the extension of 95 years, when the period is about to expire, the lobbies will go up again to increase the period. But the period is not only created to award creativity but there are other reasons for the creation of such Intellectual Property rights. Equal opportunities should be provided to people and merely extending a term period is not a solution to such a problem.

In order to harmonize the copyright laws across the board in the European Union, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, also known as the Infosoc Directive or the Copyright Directive, was enacted as an implementation of the WIPO Copyright Treaty [9]. By adopting the InfoSoc Directive, the EU wanted to align EU copyright law with and implement into EU legal order the WIPO Internet Treaties [10].

In this Directive, a list of exhaustive exceptions was provided but it was left to the discretion of the Member States to apply any exception as they think fit for their country. Peter K. Yu explains this as ‘EU member states will not be able to create exceptions other than those included in the list. Although the list is exhaustive, all the exceptions are optional. Member states therefore can pick and choose at will only those exceptions they need or find expedient’ [11]. UK implemented the Public Communication Right under section 18 and 20 of Copyright, Designs and Patent Act 1988 (CDPA 1988) increasing to cover broadcasts to have copyright implications.(revisit)  This right which was first made available in World Intellectual Property Organisation (WIPO) Copyright Treaty 1996 was implemented in the UK in 2003 under the Copyright Regulations 2003 which is now available under section 20 of CDPA 1988. Section 20 CDPA 1988 states that the communication to the public of the work is an art restricted by the copyright in a literary, dramatic, musical or artistic work, a sound recording or a film, or most importantly broadcast. Under section 20(2)(b), this rule is extended to the making available of copies to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them. This as explained by Hector ‘described Internet transmission, and makes clear that only the rights-holder or its licensee may so transmit a work.’ [12]

In Union des Associations Europeennes de Football (Union of Football Associations) & Ors v Briscomb & Ors [2006] EWITC 1268 (Ch), the issue was the broadcasting of the Champions League over the Internet.’ The claimants included Union des Associations Europeenees de Football, commonly known as UEFA, the organizer of the European Champions League and the legitimate right owner of the broadcasts. By showing live Champions League games over their website www.sportingstreams.com for subscribers to view, the defendants infringed the copyright in those live broadcasts and ancillary works owned by the claimants’ [13] bringing the case under section 20 and 17 of CDPA 1988. Justice Lindsay deciding the case held that there was infringement by the defendants and issued a permanent injunction from broadcasting of any such matches of UEFA Champions League over the Internet.

Hence, it was said that section 20 also operates in cases of peer-to-peer (P2P) networks. Before proceeding to explain various cases on P2P networks, I think it is important to explain what essentially is a peer-to-peer network. ‘P2P technology is a distributed computing software architecture that enables individual computers to connect to and communicate directly with other computers known as peers. Through this connection, peers can share communications, processing power and data files enabling individual computers to share directly among themselves files stored on the individual computers.’ [14] Examples of such softwares can be Napster, Fast Track Protocol and BitTorrent.

In the seminal case of A&M Records Inc v Napster Inc [15], members of the music industry including companies such A&M Records Inc, Universal Records, Polygram Records and many such companies alleged Napster Inc for copyright contributory and vicarious infringement. In July 2000, The District Court for Northern District of California issued a preliminary injunction. However, Napster Inc appealed and the United States Court of Appeals for the Ninth Circuit upheld the preceding judgment of the District Court. It was held that to prove contributory infringement, it was important to prove that the alleged infringers had knowledge of the infringement. In the case, it was held that Napster knew of such copyright infringement and they supported such infringement by making such software readily available. Moreover, it was held that Napster was also vicariously liable. The concept of vicarious liability originates from the principle of negligence in the law of tort where the employer was held liable for vicarious liability as explained by Professor Fleming as ‘we speak of vicarious liability when the law holds one person responsible for the misconduct of another, although the first person is … free from personal blameworthiness or fault. It is therefore an instance of strict (no-fault liability)’. [16] It was held in the court that in order to prove such a blame, the right-holder has to prove the existence of three ingredients that there has been direct infringement by a person whose act is evident to the owner of the software such as Napster in the given case; ‘The accused vicarious infringer had the right and ability to control or supervise the underlying direct infringement; The accused vicarious infringer derived a direct financial benefit from the underlying direct infringement.’ [17] Thus it was held that there was direct infringement by the users of Napster and Napster had the right and ability to control such infringement but did not do so because of the financial benefit derived from such infringement.

Another important case in this matter seems to be the case of Metro-Goldwyn Mayer Studios Inc. V Grokster Ltd [18]. Grokster Ltd won cases before the United States District Court and Ninth Circuit Court of Appeals. It was held that since Grokster had no knowledge of the infringing uses, the Betamax exception applied and Grokster was not liable in charges of contributory or vicarious infringement. However, when the case was forwarded to Supreme Court, Justice Souter pronounced a rather remarkable judgment creating more stringent rules in relation to P2P networks. He held as under

“We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties”.

Hence, as Helena points ‘anyone else making copyright material generally available on the Internet- for instance sound recordings or videos via P2P networks such as Napster or social networking websites such as YouTube- is an infringer. Public Communication right has thus been the basis on which music recording companies have since 2003 begun successfully to sue individual members of P2P networks as distinct from the creators and suppliers of the software enabling such networking to take place.

Equally important case in relation to P2P networks was of Twentieth Century Fox Film Corporation, Universal City Studios Productions LLP, Warner Bros Entertainment Inc, Paramount Pictures Corporation, Disney Enterprises, Inc, Columbia Pictures Industries, Inc v Newzbin Ltd [19]. The appellants ‘sued British-based Newzbin for copyright infringement on the basis that the Newzbin website operated to locate and identify unlawful copies of films online and then display the titles of those files, allowing visitors to the website to acquire unlawful copies of the films by clicking on the link provided. Newzbin created a new type of digital file called NZB, which operates on similar principles to torrent files, but are specifically for use with Usenet.’ [20] It was alleged that Newzbin was aware of such works and they subsequently authorised the downloading of such unauthorised works. It was held that Newzbin “was aware for very many years that … members of Newzbin who use its NZB facility to download those materials, including the claimant’s films, are infringing copyright” [21]. Hence, Kitchin J held that Newzbin had authorised acts of infringement by supplying and providing a platform with links to download the copyright work mainly films.

In my opinion another significant Swedish case is the case of the Pirate Bay. ‘The Pirate Bay is a Swedish website operates to share digital files amongst users of the system through software and file transfer protocol known as BitTorrent. The torrent file was uploaded to The Pirate Bay’s server, however, torrent file were not stored or located on The Pirate Bay’s servers’ [22].

In 2008, criminal and civil proceedings were brought against the operators of The Pirate Bay. It was said that to establish infringement various ingredients must be found. Most importantly, it was to be established that there was direct infringement by the users of Pirate Bay and such infringement was facilitated by the operators of Pirate Bay for instance the supplying of such a software would suffice. Moreover, as the court stated that ‘the operators had acted in such a way that each one could individually be held criminally responsible for their complicity and the operators could be regarded as having acted together and in collusion [23]. Furthermore, it was held that ‘the making available of a segment of a work is sufficient for the offence to be completed’. [24] Hence, considering the factors above, the judge held that ‘four defendants guilty of making 33 specific files accessible for illegal sharing through The Pirate Bay, which means they will have to pay compensation to 17 different music and media companies including Sony BMG, Universal, EMI, Warner, MGM and 20th Century Fox’ [25].

UK after the Digital Britain Final report by The Department for Business Innovation & Skills and the Department for Culture, Media and Sport promulgated the Digital Economy Act 2010 incorporating many aspects of the report including most importantly the online infringement of copyright. Sections 1 and 2 cover the duties of Ofcom, sections 3 to 8 speak about the obligations placed on the ISPs including the duty to provide on an anonymous basis, copyright infringement lists to copyright owners(revisit). In the Act, section 10-12 gives the power to the Secretary of State to impose technical obligations on the ISP. Under section 17 and 18 provides the factors that the courts need to take in order before imposing an injunction for blocking a website. These include any evidence presented of steps taken by the service provider, or by an operator of the location, to prevent infringement of copyright in the qualifying material; any evidence presented of steps taken by the copyright owner, or by a licensee of copyright in the qualifying material, to facilitate lawful access to the qualifying material; any representations made by a Minister of the Crown; whether the injunction would be likely to have a disproportionate effect on any person’s legitimate interests, and the importance of freedom of expression.

I conclude my analysis on this area of the law as unsatisfactory. While the UK, has imposed an obligation on the ISPs to disclose information of the infringers, the case of Productores de Musica de Espana v Telefonica de Espana SAU seems otherwise. As explained before, it was decided that the ISP could not provide the list of infringers on the basis of privacy in relation to Article 8 of the ECHR. There can be no doubt in stating that a positive trend has been seen in order to compete with the requirements of the modern society in regard to the Internet but these are not enough. Even though, many cases have been decided in favour of blocking P2P networks but as Eriksson said what was at stake in the Swedish courtroom was the future of the Internet itself. He said that ‘the Internet revolution meant that we created a global network where any digital entity could connect and exchange information with any other…”Anti-piracy efforts must be seen in the light of a counter-revolution against this that goes all the way to the very infrastructure of the net.’[26] In my view substantial efforts are yet to be made with regard to copyright infringement as it is evident that such P2P networks exist and there is constant copyright infringement on websites such as YouTube where many songs are still available to be downloaded without the authorisation of copyright owners. I conclude on giving a rather different perspective that many would argue that such availability of the copyright materials online especially music industry has also benefited the rise in the popularity of musicians and singers who otherwise achieve such milestone in their life. could not have gained popularity. Moreover, as I stated an example of University of Sussex study direct website, I would like to point out that lectures are available online which are technically copyright of the professors but the students are allowed to download them infringing the copyright and in my opinion today the infringement has reached such a height that it is practically impossible for the government to control such infringement.

BIBLOGRAPHY & REFERENCES

1. Neil Curry and Mairi Mackay, Four found guilty in landmark Pirate Bay case, CNN, 2009, accessible at http://edition.cnn.com/2009/TECH/04/17/sweden.piracy.jail/index.html?_s=PM:TECH
2. Jemima Kiss, The Pirate Bay trail: guilty verdict, The Guardian, 2009, accessible at http://www.theguardian.com/technology/2009/apr/17/the-pirate-bay-trial-guilty-verdict
3. Davies Collison Cave, Online copyright infringement: recent cases worldwide and legislative responses, November 2010, accessible at http://www.davies.com.au/pub/detail/407/online-copyright-infringement-recent-cases-worldwide-and-legislative-responses
4. JG Fleming, The Law of Torts, Law Book Co, 8^th Ed, 1962 at 366
5. Fred von Lohmann, Peer-to-Peer File Sharing and Copyright Law: A Primer for Developers, Electronic Frontier Foundation.
6. Staff Report, Federal Trade Commission, Peer-to-Peer File Sharing Technology: Consumer Protection and Competition Issues, June 2005.
7. McDermott Will & Emery, European IP Bulletin, The Intellectual Property, Media & Technology Department, Issue 32, June 2006
8. Smari McCarthy, The European Copyright Directive and Combinatorial Explosion, Web Journal of Current Legal Issues, Vol 19, No 2, 2013
9. Eleonora Rosati, Copyright in the EU: search of inflexibilities, Journal of Intellectual Property Law and Practice, May 2014.
10. Peter K.Yu, An Overview of the EU Information Society Directive, accessible at http://www.peteryu.com/gigalaw1101.pdf
11. European Commission Legal Service. (July 2008). Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU, judgment of 29 January 2008 Protection of intellectual property rights – data protection.Available: http://ec.europa.eu/dgs/legal_service/arrets/06c275_en.pdf. Last accessed 5th May 2014.
12. UKIPO, Copyright in the Digital World: What role for a Digital Rights Agency, March 2009 available at http://www.ipo.gov.uk/digitalbritain.pdf
13. CLARK, ” The answer to the machine is in the machine “, in The Future of Copyright in a Digital Environment, P. Bernt Hugenhotltz (ed.), Kluwer, 1996, p. 139-146
14. Séverine Dusollier, Electrifying the fence: The legal protection of technological measures for protecting copyright, Centre de Recherches Informatique et Droit -University of Namur
15. Hector L MacQUEEN, Appropriate for the Digital Age? Copyright and the Internet: Scope of Copyright, Law and the Internet, Hart Publishing, North America, 2009
16. Britain Forward Not Back: The Labour Party Manifesto 2005, 95

[1] Ch. CLARK, In The Future of Copyright in a Digital Environment, P. Bernt Hugenhotltz (ed.), Kluwer, 1996, p. 139-146

[2] Séverine Dusollier, Electrifying the fence: The legal protection of technological measures for protecting copyright, Centre de Recherches Informatique et Droit -University of Namur

[3] Hector L MacQUEEN, Appropriate for the Digital Age? Copyright and the Internet: Scope of Copyright, Law and the Internet, Hart Publishing, North America, 2009

[4] Britain Forward Not Back: The Labour Party Manifesto 2005, 95

[5] Supra note 3 at p189

[6] Case C-275/06 Productores de Musica de Espana v Telefonica de Espana SAU [2008] ECR 1-217

[7] European Commission Legal Service. (July 2008). Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU, judgment of 29 January 2008 Protection of intellectual property rights – data protection. Available: http://ec.europa.eu/dgs/legal_service/arrets/06c275_en.pdf. Last accessed 5th May 2014.

[8] UKIPO, Copyright in the Digital World: What role for a Digital Rights Agency, March 2009 available at http://www.ipo.gov.uk/digitalbritain.pdf

[9] Smari McCarthy, The European Copyright Directive and Combinatorial Explosion, Web Journal of Current Legal Issues, Vol 19, No 2, 2013

[10] Eleonora Rosati, Copyright in the EU: search of inflexibilities, Journal of Intellectual Property Law and Practice, May 2014.

[11] Peter K.Yu, An Overview of the EU Information Society Directive, accessible at http://www.peteryu.com/gigalaw1101.pdf

[12] Supra note 3 at p194

[13] McDermott Will & Emery, European IP Bulletin, The Intellectual Property, Media & Technology Department, Issue 32, June 2006

[14] Staff Report, Federal Trade Commission, Peer-to-Peer File Sharing Technology: Consumer Protection and Competition Issues, June 2005 at p3

[15] A&M Records Inc v Napster Inc 239 F. 3d 1004 (2001)

[16] JG Fleming, The Law of Torts, Law Book Co, 8^th Ed, 1962 at 366

[17] Fred von Lohmann, Peer-to-Peer File Sharing and Copyright Law: A Primer for Developers, Electronic Frontier Foundation.

[18] Metro-Goldwyn Mayer Studios Inc. V Grokster Ltd 125 S.Ct. 2764 (2005)

[19] Twentieth Century Fox Film Corporation, Universal City Studios Productions LLP, Warner Bros Entertainment Inc, Paramount Pictures Corporation, Disney Enterprises, Inc, Columbia Pictures Industries, Inc v Newzbin Ltd[19] [2010] EWHC 608 (Ch).

[20] Davies Collison Cave, Online copyright infringement: recent cases worldwide and legislative responses, November 2010, accessible at http://www.davies.com.au/pub/detail/407/online-copyright-infringement-recent-cases-worldwide-and-legislative-responses

[21] Ibid at 78

[22] Supra note 28

[23] The Pirate Bay at 36-37

[24] The Pirate Bay at 48

[25] Jemima Kiss, The Pirate Bay trail: guilty verdict, The Guardian, 2009, accessible at http://www.theguardian.com/technology/2009/apr/17/the-pirate-bay-trial-guilty-verdict

[26] Neil Curry and Mairi Mackay, Four found guilty in landmark Pirate Bay case, CNN, 2009, accessible at http://edition.cnn.com/2009/TECH/04/17/sweden.piracy.jail/index.html?_s=PM:TECH

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.