Multinational, industrial-scale copyright holders continue to pursue a number of inappropriate means of enforcing their rights. IFPI, the BPI and MPA continue to lobby for new, intrusive enforcement rights. The Digital Economy Act offered two new possibilities:
Section 17 of the Digital Economy Act gives the Secretary of State the power:
by regulations [to] make provision about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright.[i]
This power is the subject of discussion in this document. In part 1, we look at the broad problems with internet censorship, especially blocking for copyright infringement. We show that it is a very broad measure, with severe problems. In part 2 we examine the current legal position of web blocking injunctions following the Digital Economy Act. In part 3, we offer a brief conclusion.
There are several significant problems with the prospect of utilisation of web blocking powers.
By the very nature of the industrial-era regulations of copyright (which were developed to govern the expensive and difficult task of making industrial scale copies of books, music, visual arts, etc.) any and all internet sites are potentially of use in violating copyright.
Copyright is not a clear cut set of restrictions. Quite rightly, given the potential impact on commerce, education, culture, news reporting, academic research and many other areas of life, copyright and neighbouring rights are expressed relative to the whole situation and not absolutely.
The legal support for so-called digital rights management technological prevention measures in the WIPO Copyright Treaty and the relevant implementing legislation, mean that over-strong restrictions on legitimately held embodiments of copyright material may prevent lawful access for educational, research, criticism and review.
Obtaining unrestricted copies from elsewhere to enable the exercise of these rights is not a violation of copyright, but the legality of such copying needs testing in a court of law in each individual case.
Further restricting the general availability of material which can be used to exercise one's lawful rights would push the copyright bargain even further from a sensible balance between the rights of creators and middlemen, and those of (re)users.
Internet sites, unlike physical items containing an embodiment of copyrighted material, are highly malleable in both current content, source of that content, and their logical structure (the physical structure has very limited impact on their logical structure).
The nature of the World Wide Web is that of interlinked documents potentially shared on any server online. As was seen with the shutting down of Napster, the closure of centralised services serving customer desires simply drives services away from potentially profit-making centralised sites and onto ever-more distributed services (Gnutella, Kazaa, BitTorrent). The closure or blocking of “The Pirate Bay” would not lead to the demise of BitTorrent, but would simply cause the generation of more distributed tracking methods, and the emergence of interlinked applications providing temporary tracking information.
Blocking access to a site on the internet either prevents all traffic to that site, preventing standard communications such as email as well as web or file sharing traffic, or will be utterly ineffective at preventing sharing since the very protocols of the Internet are designed to be completely flexible, allowing any two machines to transfer information over any agreed port using any commonly agreed protocol.
Blocking is an all-or-nothing proposition on the internet and hence should be used only for serious criminal activity (such as hosting child abuse images).
Supposedly legitimate digital download sites such as the Apple iTunes Music Store (ITMS) have carried material which is found to be infringing copyright. The copyright violations in question are complicated and regarding the exercise of rights by recording companies beyond their contracts with performing artists and/or composers.
However, given the importance of the ITMS as a sales channel it is unlikely that the recording companies would request that it be closed down. The recording artists themselves are unlikely to have the financial wherewithal to seek the closure of ITMS over such matters, and the ITMS may be providing them with income from properly authorised sales.
The ability to seek for a whole internet site to be blocked thus raises the question of equality under the law for sites, raising some of them beyond such measures even where they may be the most significant source of copyright infringement due to their total scale.
Blocking of whole internet sites will likely lead to a number of undesirable side effects.
Section 17 of the Digital Economy Act 2010 appears to permit the government to make regulations that would allow a wider class of injunctions to be made against ”service providers” than at present.
In this discussion, a “service provider” refers to anyone who operates an “information society service” -- which includes all commercial services available online, such as website hosting, and is not confined to merely those providing access to the internet which we informally refer to as “ISP's”.
This discussion attempts to outline what the state of the law is at present and what section 17 might do. Part 2.1 contains a brief summary of the existing situation and a list of reason that rights holders might think it inadequate. Part 2.2 is an example case (in fact the only case that properly considers the law at all) that illustrates what rights holders are able to do, and what they are prevented from doing. Part 2.3 contains a more detailed background of why we are where we are now, and what rights holders have pressed for in the past. Part 2.4 looks briefly at what changes section 17 may bring about. Part 2.5 provides an alternative, narrower view of Section 17.
The courts have a statutory power[ii] to grant an injunction to prevent someone doing anything that would infringe copyright: usually because that person was sued for past copyright infringement, but an injunction may also be used to prevent future infringement. The courts also have a newer power in s97A of the Copyright Act[iii] (introduced after pressure from rights holders) to grant an injunction against a service provider where they have actual knowledge that another person is using their service to infringe copyright.
These two powers are seen by rights holders as being insufficient, particularly to deal with online infringement. They have also been reluctant to even use the s97A power for fear that it is far weaker than they hope and that to use it and fail would set a negative precedent.
The problems they perceive include:
This is, however, probably the way the law should work.
The case of Twentieth Century Fox (and others) v Newzbin[iv] illustrates the rights holders concerns.
Newzbin is a website that indexes (but does not store) USENET content. It has a normal (free) and premium membership. Premium members were able to use it to obtain easy access to the large numbers of films available in binary format on USENET – in most cases with infringement of copyright.
Six film studios sued Newzbin for damages and an injunction to prevent it “from including in its indices or databases entries identifying any material posted to or distributed through any Usenet group in infringement of copyright.”
On the basis of a number of factors, including the focus on movies and games, a list headed “Shows you are likely to see posted” (which included many films in copyright) and the way in which movies were categorized, the judge found that Newzbin were secondary copyright infringers for many reasons: authorisation, procurement, participation in a common design, making available and communication to the public.
An injunction was granted that required Newzbin to filter any material that matched the studios' copyright works in a database that the studios supplied.
What the studios had wanted was a much wider injunction, that covered all infringing material, whether or not it belonged to them. The judge refused to do so.
The studios had tried to use s97A – a new power (see below) for the courts to grant injunctions against service providers (like Newzbin) that had actual knowledge of infringement. The judge refused to make the order because:
The judge was quite clear that the injunction should go no further than he had indicated.
The courts have a general power to grant injunctions ordering one or more parties to do or refrain from doing a wrongful act. An injunction is a powerful weapon because anyone who acts in breach of a court order risks proceedings for contempt of court, the ultimate sanction for which is imprisonment.
Because breach of an injunction is such a serious matter, the courts apply a number of principles to the scope of the injunction – that is exactly what is or is not ordered:
An injunction is also a discretionary remedy: a court may refuse an injunction for many reasons and, in particular, if it thinks that an injunction would not be just or necessary in the circumstances. Injunctions may be used both as an “interim” remedy, before any rights or wrong have been finally established, and a “final” remedy as a result of a final judgment.
As part of a scheme to encourage electronic commerce, the E-Commerce Directive[v] introduced a set of provisions intended to protect service providers from liability for innocent infringements of copyright. The way the directive does this is to identify three kinds of activity a service provider might be involved in:
As a general rule a mere conduit would not be liable in damages for any copyright infringement as a result of information flowing over its network. Someone providing a temporary cache would be in a similar position provided they complied with general internet standards (such as to when the cache is cleared).
Those storing information for others – which would include those hosting websites – have a much more limited liability, they are free from liability for damages only as long as they do not have “actual knowledge” of the infringement or take prompt action when they do. The exact extent of this liability is unclear – does knowledge require certainty, or would mere suspicion be enough?
Despite the general way in which these defences are phrased in the directive, each defence is qualified by the proviso that:
“This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.”
This means that the directive does not prevent injunctions being made against an ISP to prevent infringement. This would seem to allow an authority like HADOPI in France to require service providers to disconnect infringers. It is less clear whether it can be used to impose a requirement on an ISP acting as a mere conduit to use filtering software to prevent infringing works being transmitted over its network – as happened to Tiscali in Belgium[vi] – which would seem to be contradicted by article 15 of the directive which states that member states may not impose a general obligation to monitor.
In 2001, the Copyright Directive[vii] required that the UK government ensure that “rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”.[viii] In its consultation on the implementation of the directive, the government felt that there was no need to make any specific provision in UK law for the granting of injunctions:
“Regarding Article 8.3, it is already possible under UK law to seek injunctions against intermediaries. It is also possible to notify an intermediary of an injunction served on an infringer so that the intermediary is liable for contempt of court proceedings if he aids and abets an infringer. It is considered that this meets the requirements of Article 8.3.”[ix]
The rights industry was not happy with this and expressed concern that unless there were specific legislation, there would be uncertainty as to whether right owners can apply for injunctions. In response the government included what is now section 97A of the Copyright Designs and Patents Act 1988.
Section 17 contains a framework for website blocking – to be fleshed out by regulations to be made by the relevant minister. Like many other aspects of the Digital Economy Act 2010, the devil will be in the detail.
Injunctions under (or regulated by – see my pedantic end-note) section 17 have the following properties:
Section 17 constrains the kind of location that may be blocked into one of three classes. Each class consists of those locations which either in the past, at present or it is likely in the future that they will be
This means that section 17 injunctions are quite a different animal from section 97A injunctions, for instance:
Note that the injunction sought in Newzbin would probably not be covered under section 17. Although Newzbin did assist infringers in finding infringing material, it would be hard to argue that it was “used to gain access” to the locations where that material was kept. Section 17 does not cover injunctions against the infringing locations, but at intermediate service providers who provide access to them.
Section 17(5) does provide some safeguards – for example the court must take into account the importance of freedom of expression and whether the injunction would have a disproportionate effect on anyone's legitimate interests. What is more it must take into account the “steps taken by the copyright owner, or by a licensee of copyright in the qualifying material, to facilitate lawful access to the qualifying material” – which may provide a safeguard against the abuse of copyright.
The section has the following technical defects:
But the more obvious concerns relate to the potential for over-wide application.
Section 17(1) begins:
(1) The Secretary of State may by regulations make provision about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright.
Read literally, this does not create a new power by the courts to grant injunctions, rather it allows the Secretary of State to make regulations that govern what they must do if they make a blocking injunction. Contrast with section 97A(1) which says “(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction” (emphasis mine), which clearly grants a new power to the courts. So far, everyone has been proceeding on the basis that section 17 does create a new power, and its possible the courts may, especially if no-one raises the point at an early stage, proceed as if it did.
But it is quite possible that a court would take the view that that section 17 doesn't give any new powers to the courts. If that were the case, section 17's application would be very, very limited.
Copyright is a private right, that needs careful establishment in each case. Web blocking is an intrusive and wide-ranging tactic that has broad effects. These can include censorship and stopping the legitimate circulation of material. Broad uses would be likely to create inequalities before the law, and bring copyright into further disrepute.
Powers to grant web blocking injunctions have existed in the UK for some time – arguably powers given to the courts that predate the Internet would allow for such Injunctions. New, defined powers were introduced in the early 2000s. They have not been widely used, the first instance being the Newzbin case, in part because rights holders felt they were too narrow and were worried by the impact of failure. They are now under pressure to use these powers in order to demonstrate any need for further legislation introduced under s17 of the Digital Economy Act.
It is important for the courts to take great care (as the court did in Newzbin) to ensure that individual rights holders can uphold their individual rights to prevent particular copyright infringements, while at the same time ensuring that wide-ranging injunctions should not become used in order to penalise service-providers for not providing the monitoring and policing functions which rights holders are trying to induce them to provide.
Judge Kitchin touched on many of these concerns in the Newzbin case:
I do not believe it would be appropriate to grant an injunction of the breadth sought by the claimants for a number of reasons. First, it is apparent from the terms of Directive 2001/29/EC that it is contemplating the grant of an injunction upon the application of rights holders, yet the claimants are seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence. Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights. Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain. In my judgment the scope of any injunction under section 97A(2) should extend no further than that to which I have already concluded the claimants are entitled, namely an injunction to restrain the defendant from infringing the claimants' copyrights in relation to their repertoire of films.[x]
In the case of any future web blocking powers, introduced by Section 17 of DEA, there would be new additional dangers. The powers potentially could very wide. Services that are dealing with, or have dealt with, copyright infringement may be affected. Rather than targeting actual incidents of infringement, it attempts to target services where copyright infringement has been taking place. This, we note, makes no reference to whether such sites have means to deal with infringement, nor whether such infringement has stopped.
ORG does not believe new powers would be in the public interest. The current, more specific approach makes more sense.
Credits: Section 1 by Profession Andrew Adams, Section 2 by Francis Davey. Additional material from Lilian Edwards, Kuan Hon and Jim Killock.
[ii] Section 37(1) Senior Courts Act 1981 http://www.legislation.gov.uk/ukpga/1981/54/pdfs/ukpga_19810054_en.pdf
[iii] Strictly, the Copyright, Designs and Patents Act 1988 http://www.legislation.gov.uk/ukpga/1988/48/contents
[iv]  EWHC 608 (Ch) http://www.bailii.org/ew/cases/EWHC/Ch/2010/608.html
[v] Directive 2000/31/EC http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:HTML
[vi] Sabam v Tiscali, District Court of Brussels, 29 June 2007. The question of whether the Belgian law under which the court made its order is compatible with EU law has been referred to the European Court of Justice.
[vii] Directive 2001/29/EC http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML
[viii] Directive 2001/29/EC, Article 8.3
[ix] Page 18