Laurence Kaye on Digital Media Law

Hargreaves & 'text mining' - digging up copyright?

Dear reader

One of the less-noticed Hargreaves Review's proposals, supported by the Government in its Response to the Hargreaves Review, is to widen the copyright exception for non-commercial research to cover both text and data mining.

What is text mining?

A good explanation appears in the National Centre for Text Mining's Submission to Hargreaves. "The overall goal of text mining is to help discover new knowledge from old, based on processing unstructured data, i.e. the text of scientific articles, books, reports etc. It applies a battery of natural language processing techniques to identify and extract information from such content, turing this information into structured data, over which data mining algorithms are run to find interesting, previously unknown associations."

Does European Copyright law allow the UK to introduce an exception for data mining?

Yes. The Copyright Directive allows member states to keep/ introduce an exception for scientific research on tw conditions: (1) the author has to be attributed unless this turns out to be impossible and 2) to the extent justfied by the non-commercial purpose. That is mirrored in the existing 'fair dealing' exception for research in the UK's Copyright, Designs & Patents Act 1988, as amended.

So what's the issue?

Data mining requires access to publishers' databases and therefore depends on licences to use material protected by copyright and database right. Those in favour of a broader exception argue that publishers' licences that permit data mining are too narrow or the terms unclear. Publishers reject this.

So what's the solution?

Text mining is a vital tool in research by revealing new patters and trends in data. But an over-broad exception would undermine publishers' legitimate licensing and business models.

The Government needs some joined up thinking here. It's advocating the creation of a Digital Copyright Exchange to turbocharge rights licensing and trading. Surely we can develop automated licensing solutions which accomodate non-commercial research covered by exceptions for free, whilst charging for commercial exploitation?

Licensing, not overbroad exceptions, is the right way forward.

Have a good week,

Laurie Kaye

 

Newzbin2 – Game Changer? / more on intermediary liability

Dear reader

My colleague Sherif Malak has taken a look at the ''Newzbin 2' case in July this year, continuing our theme of  “who should hold the can?” for illegal content on the networks.  Whilst the debate about the severity of sanctions in the Digital Economy Act against infringements by users rages on, rightsholders appear to have made some headway elsewhere in the case of Newzbin2.

The background to the case was cause for much celebration amongst rightsholders when, last year, a number of film studios succeeded in obtaining an injunction against the providers of file-sharing website, Newzbin, which enabled users to download copyright infringing content including films and TV-programmes.  There, Kitchen J emphatically concluded that Newzbin was not only liable for authorising infringement, but was also liable as a primary infringer, even finding that ‘flagrancy’ (and thus increased damages) had been proved under s. 97 of the CDPA.  Celebrations somewhat stopped when , after a quick shimmy of its servers to Sweden, the imaginatively  titled “Newzbin2” service rose from the ashes, moving beyond the jurisdiction of the UK courts.

Foiled? Well no, not quite.  Turning their attention to the ‘gatekeepers’ of the internet, the ISPs, rightsholders sought an injunction against the UK’s largest ISP, BT, to block access to Newzbin2 wherever it was located….. and succeeded!  Whilst the court batted away a number of legal arguments BT raised including those relating to the HRA and E-Commerce Regulations, of particular note is Justice Arnold’s seemingly broad interpretation of ‘actual knowledge’ of infringement required to make out BT’s liability under s. 97A of the CDPA – actual knowledge of the use of the service to infringe (rather than of a specific infringement) now appears to be enough.

On the face of it, together with the ECJ’s guidance in L’Oreal v. eBay (discussed here earlier), this looks like quite the bombshell for intermediaries. But before rightsholders begin flocking to the courts to apply for injunctions, they should keep a few points in mind:

1. The floodgates are unlikely to open following this test case as the facts were heavily weighted in favour
2. of rightsholders: Newzbin/Newzbin2 had few non-infringing users, BT knew of the facts of infringement from the previous case and rightsholders sought the blocking of a specific website (not the analysis of all user traffic), where the ISP already had filtering software in place (in the instance, BT’s Cleanfeed).  It cannot therefore be assumed that all services will share the same fate especially that the decision is not binding precedent on other High Court applications.
3. The type of blocking sought in Newzbin2 was quite precise and BT already had the Cleanfeed system at its disposal – not all ISPs will have the same technical capacities.
4. Although the judgment suggested that applicants would be likely to recover all their legal costs if successful, Arnold J made clear that there is no guarantee that this will be the case for anyone seeking an injunction.
5. The speed of the court process renders injunctive relief ineffective against short lived services - as communications minister Ed Vaizey pointed out last month, there is currently little recourse against online services that pop up for a few days to ‘cash in’ on a live sport event before disappearing again.
6. Finally, the practical effect of blocking an infringing site may not effectively reduce online copyright infringement – there is nothing to say that infringers won’t just move on to the next source of free (yet still unlawful) content.

All in all, the lack of certainty and costs that an injunctive remedy involves means that it’s not clear whether this will be preferred to the user level remedies available under the DEA.  However, now that the site blocking provisions of that Act have been dropped, it’ll at least be an additional, an no doubt welcome, option in a rightsholder’s legal armament for tackling online copyright infringement.

Have a good weekend.

Laurie

Hargreaves, Digital Copyright Exchange & Intermediaries - is there a link?

Dear reader

Viable business models, a balanced legal framework and 21st century machine-powered licensing solutions,these are the building blocks of digital business.

In my last post, I mentioned the recently published Government's Response to the Hargreaves Review. In this post, I want to look at two issues: the proposed Digital Copyright Exchange and the position of intermediaries - there is a link.

1. Digital Copyright Exchange (DCE)

In his Review, Professor Hargreaves was  - I think deliberately - not prescriptive about whether the DCE was an online directory for licensed content or a digital content stock exchange where rights could be bought and sold or both. The Government clearly sees as the DCE as a revenue generator for UK plc amidst a sea of no or slow growth industries, citing the Hargreaves Review's prediction that the DCE could add up to to £2.2billion annually to the UK economy by 2020.

It's clear from the Government's Response that the DCE should be a digital stock exchange, serving as a "..genuine marketplace independent of sellers and purchasers, for example on the model of independent traders using amazon.co.uk to sell goods, rather than simply being an aggregated rights database."

2. Intermediary Liability

Whatever form the DCE takes,  digital middlemen are a vital link in the digital business chain, whether as providers of online marketplaces, content hosts and aggregators, search engines, ISP's - the list goes on and continues to get longer and more complex. The message for intermediaries is clear: there are circumstances in which they will be in the firing line of rights owners. There are two factors which increase the intermediaries' risk - knowledge and active encouragement.

The recent European Court of Justice (ECJ) decision in L'Oreal v.eBay was a referral from the High Court in England before which the case is now pending. The ECJ looked at intermediary liability from two angles. The first was the circumstances in which the intermediary, in this case eBay, could find itself legally liable to a rights owner (L'Oreal's trade mark rights) where one its users was infringing the trade mark. The other was the circumstance in which, even if eBay has no liability, the rights owner can nonetheless get an injunction against the interemediary to compel it to remove the infringing content.

On the first issue, the ECJ gave both comfort and alarm to intermediaries like eBay. The Court said that the operator of an online marketplace is not infringing a brand owner's trade mark (e.g. 'L'Oreal') when goods bearing the trade mark are offered for sale on its online site. However, the ECJ also decided that an online marketplace operator can be prevented from advertising based on offering key words which include the brand owner's trade mark.  Furthermore, knowledge of infringing activities can result in the online operator's loss of immunity e.g. where "the operator plays such as role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them." The Court is referring here to the purchase of keywords e.g. Google AdWords corresponding to the name of L'Oreal trade marks.

On the second issue, the ECJ in the L'Oreal decision made it clear that even where the online operator has no primary liability, it can be ordered to take measures to bring existing infringements to an end and to prevent their recurrence.The same issue was looked by the UK High Court in the case of Twentieth Century Fox Film & Others v BT plc in the context of copyright infringing content on the Newzbin website. I will look at the implications of that case in my next posts.

Have a good week.

Laurie Kaye