By Darren Meale
The fact that the Internet is so hard to police — and that no single authority is in a position to dictate what it should and should not contain — should be cause for celebration for anyone with an interest in the freedom of speech, expression, and the sharing of ideas. But the Internet has two faces. For every positive exercise of those and other freedoms, there’s an act of fraud, counterfeiting, and copyright infringement. How is the law — in particular the English legal system — attempting to stem the tide of the last problem (online infringement) and take pirates down?
Attacks are being made on two main fronts in the UK. The first is via section 97A of the Copyright, Designs and Patents Act 1988. This permits a court to order a service provider — which could be an ISP, a search engine, or a social networking website — to block its users from accessing infringing material. To take ISPs as an example: when there are perhaps millions of infringing users in the UK using the internet access services of only six major ISPs, it’s going to be much easier to pursue those intermediaries than it is the individuals.
Although section 97A has been around since 2003, the first real attempt to use it wasn’t until 2011. The film industry brought a test case against the UK’s largest ISP, BT, seeking a court-ordered block of an infringing service called NewzBin2. BT heavily resisted the attempt, but every ground it raised was dismissed by the High Court and a block was ordered. This year it was the turn of the music industry, which sought blocks from BT and the remaining five major UK ISPs against the celebrity poster-boy of internet piracy: The Pirate Bay (TPB). With none of the ISPs willing to defend such an obviously dubious service, the High Court easily found TPB to be infringing copyright in February of this year. With little to distinguish TPB from NewzBin2, the ISPs then largely gave up the fight and dropped any opposition to a block. This was then ordered in May.
While section 97A has been making waves since its first appearance last year, the second front has been bobbing along in calm waters. Key provisions of the Digital Economy Act 2010 impose obligations upon ISPs to notify their subscribers, once those ISPs have been informed by copyright owners that those subscribers are suspected of infringing copyright, mostly likely via peer-to-peer file sharing (via sites such as TPB). Repeat offenders are put on what is effectively a “naughty list” and copyright owners can use those lists to pick juicy targets for taking further action. Two major ISPs tried to knock the Act out by launching judicial review proceedings, complaining that it offended European and human rights laws. They failed overall, but their actions have delayed the introduction of the Act’s notification regime. A final draft of the Initial Obligations Code (the Code), which sets out the details of the regime’s operation, has now been prepared by Ofcom (the UK’s communications regulator) and was put out for a consultation which ended in July. But there is a lot of work to be done before the regime begins. For example, an independent appeals body is to be created to deal with subscribers who wish to appeal an allegation of infringement. Accordingly, the Government does not expect the first notification letter to be sent until 2014. In the immediate term the Code will not provide for any real sanctions against subscribers beyond receipt of the letter, and accordingly can be criticised as lacking teeth.
While introducing the Digital Economy Act is probably better than doing nothing, the Newzbin2 and TPB cases suggest that section 97A is the far more effective weapon against piracy. Service providers may now be more motivated to assist copyright owners to police their services, if the alternative is to face the cost and bother of a section 97A application that the odds are they’ll lose. There is no direct connection, but in response to industry pressure Google (which may be the next target for a section 97A application) has recently agreed to demote websites from its search results where it has repeatedly received reports of those sites hosting infringing material. It’s a start, but it won’t remove them from its listings altogether.
The UK can’t, of course, solve this problem alone. A number of jurisdictions now have bespoke anti-file-sharing laws in place. These include France (HADOPI); Spain (Ley Sinde); South Korea and New Zealand. Others are in development. As well as being legally challenging, these sorts of measures are also proving politically controversial. Proposed legislation in the USA — SOPA (Stop Online Piracy Act) and PIPA (PROTECT IP Act) — met with huge public opposition earlier this year and are being reconsidered, but may still come to pass in some form. Before leaving power, President Sarkozy of France hailed HADOPI as hugely successful. The new government in France is reported to be less enthusiastic about the law and its multi-million Euro yearly cost.
It’s worth finishing with a note on circumvention. Very few, if any, of the measures discussed above are foolproof. Many (website blocks for example) are fairly straightforward to get around. Although a large proportion of casually infringing Internet users may not know how, a Google search for “How do I get around The Pirate Bay block?” reveals plenty of results, including several videos on Google’s own YouTube. Ironically, when I clicked on the first video in the list, I was presented with an advert for one of 20th Century Fox’s soon to be released (and no doubt, pirated) movies. Evidently, there’s still a lot of work to be done.
Darren Meale is a Senior Associate and Solicitor-Advocate at SNR Denton, specialising in intellectual property litigation and advice. He has particular expertise and interest in digital rights issues, including the way in which the Internet and new digital technologies interact with and potentially infringe intellectual property rights. His recent paper, ‘Avast, ye file sharers! The Pirate Bay is sunk’, has been made freely available for a limited time by the Journal of Intellectual Property Law and Practice.
JIPLP is a peer-reviewed monthly journal. It is specifically designed for IP lawyers, patent attorneys and trade mark attorneys both in private practice and working in industry. It is also an essential source of reference for academics specialising in IP, members of the judiciary, officials in IP registries and regulatory bodies, and institutional libraries. Subject-matter covered is of global interest, with a particular focus upon IP law and practice in Europe and the US.
Image credit: Pirate button on computer keyboard. Photo by Sitade, iStockphoto.