August 02, 2011 | Peter Bradwell

A big week for copyright in the courts

Last week copyright court rulings were like London buses. There were loads of them, but not ones that we really wanted. On Wednesday and Thursday there were three big decisions covering three very different issues. Lots to pick over for copyright geeks, law experts and anybody who cares about how the Internet is regulated. Here's a quick run down of what's going on.

1. The 'Newzbin' judgement

Last Thursday the High Court handed down it's judgement in the case between BT and various movie studios. The court was being asked by the studios to serve an injunction that would force BT to try to block access to the site 'Newzbin' (which searches Usenet and offers links to lots of films, books and music - most of which infringe copyright). The judgement was released at 10am, and found resoundingly in favour of the movie studios.

This seems like a blow for those of us hoping not to see website blocking used as a means of policing the Internet. Open Rights Group took the airwaves to explain why we thought website blocking was a bad idea. We covering the Today programme, BBC Breakfast, World Service and News, Channel 4 News and Sky News. We were explaining that we saw website blocking as pointless and dangerous. Pointless because it most likely won't work, will be trivial to avoid, won't stop infringement and won't bring returns for the creative industries. Blocking is also dangerous because of the significant risks of accidental 'over-blocking', the possible slowing of Internet service, and because it will likely lead to the wider, everyday use of encryption and avoidance measures.

Perhaps more significantly, we are concerned about the precedent this might set for future blocking injunctions. We're very concerned about read across from this judgement to less 'clear-cut' cases, and whether this represents, to coin a phrase, the thin end of the wedge. For example, this ruling should see off the demands for a 'voluntary' blocking scheme advocated by rights-holders and discussed in roundtables hosted by Ed Vaizey - there is a clear legal process available to rights holders. However, there is a danger that the costs to ISPs of challenging the injunctions will lead to an acquiescence to rights-holders' demands for blocking. There should be no such short-cuts simply because the demands of fair due process seem cumbersome.

Open Rights Group is going to be campaigning vociferously about website blocking, taking the message to policy makers that blocking should not be seen as an easy fix for complex social problems. You can read more on our position on blocking in our briefing to the Minister Ed Vaizey here.

2. NLA / Meltwater

The Newspaper Licensing Agency took Meltwater to court because, most simply, they believed that users of Meltwaters media monitoring service needed a license to view material in addition to the license granted to Meltwater. The ruling handed down a complex judgement which handed the NLA a victory against Meltwater. The primary concern is that the ruling has very broad implications for whether 'browsing' and the act of visiting websites can be considered in some contexts - in this case 'work' or commercial contexts - infringement of copyright. There's some disagreement about whether this is limited to the special case of a media monitoring company or if these broader concerns apply. You can read a piece by Meltwater's CEO Jorn Lyseggen on ORGZine here, where he argues that there are indeed very broad and worrying implications.

3. The 'Stormtrooper helmet' case

Finally, last week saw judgement handed down in a case concerning the production of 'Stormtrooper' helmets. This had two main implications - the first good news and the second less good. First, the decision was that the helmets were not sculptures and so did not infringe copyright. Second, and perhaps most worrying, the court decided that cases involving copyright outside the European Union can be brought in English courts, if the claims are against someone resident in the UK. It is unclear the extent to which this opens UK residents to infringement cases brought from elsewhere. It might also have a bearing on cases similar to those of Richard O'Dwyer, who is threatened with extradition to the US for allegedly infringing copyright in the UK. You can read the piece by Emily Goodhand (aka @copyrightgirl) on ORGZine here, where she explains the background and what the case might mean in more detail.

The light at the end of the tunnel

If these rulings together are clouds over the current copyright debate, the silver lining is the Government's likely support for the findings of the Hargreaves Review of IP. It is likely that tomorrow Vince Cable MP will announce the Government's intention to implement Professor Hargreaves' recommendations, and put into law many new exceptions. That should include rights to format shift, parody and more rights for researchers and archivists. It adds up to common sense copyright reform, supported by evidence, through a series of sensible but significant reforms that would help everyone take advantage of what new technology offers. That's a refreshing change, and one that should be welcomed with open arms.

Comments (1)

  1. Mark Pack:
    Aug 03, 2011 at 09:11 AM

    I think you've being a bit too pessimistic about the Newzbin judgement, as it sets the bar pretty high for any similar orders in future. Most importantly, it relies on there having previously been a court ruling that copyright was being breached, not just an accusation - which is a major protection against vexatious complaints, innocent people being caught up etc.

    Of course there's still the whole question of what a court might rule is breach of copyright... but it's a much better ruling that one which didn't make that a condition.