Laurence Kaye on Digital Media Law

Laurence Kaye Seminar: 'What's Hot in Digital Media Law'

Dear reader

I'm giving a (free!) seminar on 'What's Hot in Digital Media Law' on Wednesday April 30th in London (5.30 registration) followed by a reception. Places are limited but if you'd like to come, please email julie [at] laurencekaye[dot]com with your contact details, including your physical address. Yes, I'm even sending out analogue invitations.

With the UK Intellectual Property Office consulting on new copyright exceptions, the European Commission putting copyright, levies and the e-commerce directive under the regulatory spotlight and ISPs and the content industry  trying to find a workable solution to illegal file sharing, it's a great time to get together to survey the landscape and see how the law and new business models are fitting together (or not!).

Regards

Laurie Kaye

The Government's warning to ISP's

The Government today published a strategies paper for the creative industry, 'Creative Britain: New Talents for the New Economy,' which signals a shift in the way the Government will approach the fostering and protecting of intellectual property - and in particular the role of ISPs in relation to copyright infringement. We've summarised some of its key provisions at the end of this post.

The paper as a whole is wide ranging and details the Government's proactive plans to foster creative talent with the aim of "enhancing the international competitive position of the UK's creative industries." The Government intends to achieve this with a two-pronged approach of:

1. fostering creative growth through proposed initiatives such as creative apprenticeships and 'find your talent' and talent pathways' schemes;
2. safeguarding the resulting creative content by stamping out online copyright infringement.

The Government has made it clear that it sees the current liability-free position of ISP's as a threat to this creative content. It is seeking to reposition ISP's as potential guardians of this creative content instead, and has issued the ultimatum that if the ISP's fail to self-regulate adequately, the Government will step in and legislate.   

Culture Secretary, Andy Burnham, has stated that "the Government has no burning desire to legislate" but that the paper signals a "change of tone from the Government." In other words, the Government is happy for ISP's to agree industry self-regulatory measures but this must be done sooner rather than later, and must be effective enough to obviate the need for legislation. If not, the Government is likely to include provisions for ISP's assuming greater responsibility in the anti-piracy legislation which is proposed for consultation in Spring 2008 and implementation in April 2009.

Commitment 15 of the paper clearly sets out the Government's stance:

"We will consult on legislation that would require internet service providers and rights holders to co-operate in taking action on illegal file sharing - with a view to implementing legislation by April 2009.The Government recognises the value of the current discussions between internet service providers (ISPs) and rights-holders; we would encourage the adoption of voluntary or commercial agreements between the ISPs and all relevant sectors. While a voluntary industry agreement remains our preferred option, we have made clear that we will not hesitate to legislate in this area if required. To that end, we will consult on the form and content of regulatory arrangements in 2008 with a view to implementing legislation by April 2009."

As we have noted in previous posts, the question of whether ISPs should assume greater responsibility for the content they provide raises complex issues concerning potentially conflicting legislation, such as data protection laws (see Promusicae v Telefonica), and technological measures, such as filtering technology (see SABAM v Scarlet). But the bottom line is that data protection law will not be an insuperable barrier to ISP's taking greater responsibility for carrying or hosting infringing content. 

It looks like, one way or another, the debate over ISP liability will be resolved by the end of next year.

Meanwhile, back to a summary of the key provisions of the Government's action plan for a more 'Creative Britain', which include:

• 5,000 apprenticeships to help people from all backgrounds make the most of their creative skills (the Government is looking to trial wage subsidies for small employers and financial incentives for larger employers)
• an annual event - the World Creative Business Conference - to bring together world leaders in the creative and financial sectors
• the development of 5 new 'Centres of Excellence' in creative skills
• exploring the creation of a 14-25 academic hub for the creative industries to bring schools, art colleges and universities together.

Laurie Kaye and Yasmin Joomraty

Responsible use of content - it's all the rage!

Back to the thorny subject of the liability of social networks, ISPs and other intermediaries for hosting or carrying illegal content. When the E-Commerce Directive introduced exemptions for hosting content, it specifically said that there was no obligation on hosts to monitor their sites for illegal content.

But industry pracctice is beginning to move in the opposite direction through the the use of filtering technology. Take, for example, YouTube's recently introduced video identification software for vetting its content for copyright infringement.

YouTube is keen to be seen to be acting responsibly: ("Like our other content policies and tools, YouTube Video Identification goes well above and beyond our legal responsibilities.") No doubt prompted in part by Viacon's proceedings, YouTube wants to send out a strong message that it doesn't condone or facilitate copyright infringement .

The software checks newly uploaded videos against a database of copyright protected content. As such, it is only as good as the database and the thoroughness of the checks. It is still in beta version at present, so will be bound to encounter teething troubles. It will be interesting to see if this builds bridges between YouTube and content providers, and how the courts will interpret its efforts.

At the same time, a group of big name media and internet companies have published a set of user generated content principles, as a set of good practice guidelines to serve as a benchmark for how to behave responsibly in the world of Web 2.0 (mentioned en passant in a previous post). But Google is notable by its absence as a signatory to these guidelines. Is it because the sands of legal liability for user generated content are shifting and it doesn't want to commit itself yet to a particular position?

Another type of industry standard has also been introduced recently: the Automated Content Access Protocol, or ACAP. This will enable internet content publishers to communicate permissions for access to and use of content on their sites to online intermediaries (such as search engine crawlers). Again, this represents another industry-led initiative setting standards to fill in the gaps where out-of-date legislation has proved inadequate.

Have a good week!

Laurie Kaye

File sharing, intermediaries and the law

In my September 07 post, I highlighted 'liability for 3rd party content' as my top issue for digital media law. OK, no brilliant insight there, but the trick is seeing the underlying themes and connections and how these will play out in the law.

A couple of events this week made me think about this. Yesterday, bbc.co.uk carried a piece about anti file-sharing laws being considered. Lord Triesman, the parliamentary Under Secretary for Innovation, Universities and Skills, said intellectual property theft would not be tolerated. "If we can't get voluntary arrangements we will legislate," he said.

The other event was the publication of Principles of User Generated Content Services by a number of leading 'old' and 'new' media companies (and,yes, Microsoft) in support of using filtering technologies to counter the flow of illegal user generated content.

So what are these themes and connections?

I think there are four:

1. When it comes to liability for 3rd party content, pleading 'mere conduit' and other legal immunities as a reason for inaction will become an increasingly untenable position. They're in the firing line, whether they like it or not.
2. As the world of 'intermediaries' becomes more diverse - from ISP's and web hosts to social networks, virtual worlds and other online platforms - rules about intermediary liability will cease to be 'one size fits all' and will become increasingly granular, reflecting their different roles.
3. But the combined weight of Court cases and self-regulatory 'softlaw' such as industry codes and statements of principle makes it more likely that all intermediaries will need to use filtering technologies and the like to benefit from legal immunity.
4. Even where service providers are immune, they may still find themselves on the end of court injunctions to stop infringement by users of their services.

From passive to active immunity for service providers

The Belgian ruling in SABAM v Scarlet is a sign of the times for ISP intermediaries. The Belgian court decided that Scarlet (now known as Tiscali) should put into place technological measures to identify infringing content distributed  peer to peer via its service. This effectively placed the burden on Tiscali to vet third party content - a burden from which it had assumed (along with many other ISPs) it was exempted by virtue of the E-Commerce Directive or the Copyright Directive. The Belgian court decided that it was not inconsistent with either Directive to oblige ISPs to use such technological measures. Now not all Courts will follow this decision, but it is a sign of the times.

This trend is increasingly apparent in the world of self regulation, admittedly being pushed along by media owners. The  Principles of User Generated Content Services covers "services providing user-uploaded and user-generated audio and video content "(“UGC Services”) such as MySpace and YouTube. etc. There are 15 Principles in total, so we cannot explore them in great detail in this post. But they range from emphasising the importance of clearly notifying users that they are prohibited from uploading infringing content, to encouraging the implementation of identification tools and filtering mechanisms.

In the same vein, Google's announced the YouTube Video Identification tool last week, which "will help copyright holders identify their works on YouTube" - although Google is careful to emphasize that this tool is to assist copyright owners in notifying YouTube of infringing content, rather than to act automatically to monitor and remove infringing content. Of course, Google have their own agenda as they move towards indexing the world's content and identifying individual user preferences - a topic for another post.

And intermediaries still in the firing line, even if immune from claims against them

The current exemptions in Europe for intermediaries for 'mere conduit', 'caching' and 'hosting' are in the E-Commerce Directive and there is a 'copyright-specific' exemption for ISP's in the Copyright Directive. As we've just noticed, the current trend - at least from the content owners' perspective - is to interpret these rules as requiring a more active role from the intermediary. It's because of doubts about the scope of current rules that ISP immunity for carrying illegal peer to peer traffic is being looked at.

But even if the immunity applies, those current rules still allow rights owners to seek injunctions against intermediaries as a way of getting at the infringer, even though the ISP is immune from damages claims. It's worth quoting the E-Commerce Directive on the point: "The limitation of liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts...requiring the termination or prevention of any infringement, including removal of illegal information or the disabling of access to it." (Recital (45).

Another issue is how the issue of liability fits with privacy rules. The  E-Commerce Directive nobly states that its implementation should be made in full compliance with the Data Protection Directive, "...in particular as regards the liability of intermediaries." My September 07 post, 'lprivacy' was issue no.2 for digital media law. But that's for another blog!

Laurie Kaye

'Of Privacy and property rights'

Alan Mitchell of Buyer Centric Commerce Forum poses an interesting question in a letter published in today's FT about who, if anyone, owns personal data collected online.

The short answer (in the EU) is the website owner if it meets the qualifying conditions for protection under the little known (or loved) database right. Click here to read an article of mine about this right, unique to the EU, which protects investment in database production. For the 'legal eagles' amongst my readers, click here to see how and why this right has been cut down by the European Court of Justice. Still, for database producers - which includes website owners - but some right than none at al.

Now an interesting question is whether we, as content providers in the world of user generated content, should have a form of intellectual property right in our own information!

Laurie Kaye

Intermediaries' liability: "not me, guv"

In my last post, I put intermediaries' liability top of my list of 'Law 2.0' issues. Bang on cue, the 'Independent', reported on Friday that "Prince sues internet sites for breaching his copyright." Not, of course, that he's the first.

In this post, I'm going to look at where things stand in Europe at the moment - I'll leave the USA and elsewhere for another day - and make some suggestions about what I think needs doing. But please let me have your thoughts on this hottest of hot topics.

Legal framework under strain?

It is and there's two main reasons. First, the law is 'pre Web 2.0': it was developed in the mid to late 1990's,before the growth of search engines and social networks. It was designed to reflect the role of ISPs  as carriers of email and web traffic and providers of web storage. ISP's said: "we handle traffic over which we have no control and we have no idea what we're carrying so you can't make us liable."

Second, advances in software to search and filter content have raised questions about whether service providers need to take any active steps to detect and remove illegal content in order to rely on the exemptions.

Background

Some of the complexity in the area comes from the fact that In the EU we've got two overlapping legal regimes for service provider liability. There's the E-Commerce Directive (2000) and the Copyright Directive (2001).   

The E-Commerce Directive was part of the Commissions' mission to create some common rules for doing business online. It includes three categories of exemption for service provider immunity from damages claims and criminal liability for carrying or hosting illegal content. The exemptions apply to 'mere conduit' activities', caching and hosting. The immunity is 'across the board, and applies to all kinds of liability including copyright infringement and defamation. The exemptions are in Articles 12, 13 and 14 of the E-Commerce Directive and if you really want to get to grips with the subject, they're essential reading.

There are several key important points to note about these immunities which are built around the principle of 'hear no evil, so no evil, do no evil':

• The 'mere conduit' exemption applies provided that the ISP doesn't initiate or interfere with the transmission;
• The caching exemption has similar requirements and also requires the service provider to act 'expeditiously' to remove or disable access to the illegal content in certain circumstances.
• Article 15 removes any obligation on service providers to monitor content in order to qualify for these immunities.

At about the same time as the E-Commerce Directive was being developed, the European Commission was struggling with its Copyright Directive and its mission to give copyright law a facelift for the so-called 'Information Society' age. Although the E-Commerce exemptions covered copyright, ISPs were so worried about exposure to claims for copyright infringement that a specific exemption was included in Article 5.1 of the Copyright Directive. The wording is arcane and obtuse but its purpose is to give ISPs a limited liability for 'machine generated' copies (e.g. on routers). It also contains a limited exemption for lawful caching. I could devote the entire post to analysing its language. The exemption needs to be handled with care!

So where are we in age of 'peer to peer', social networks, search engine et al?

Copyright?

The answer is that we're in a state of uncertainty, unsatisfactory as that may be. In a recent case in Belgium, (May 2007) the collecting society SABAM sued the ISP Scarlet (formerly Tiscali) for handling peer to peer traffic containing musical files which breached copyright. Interestingly, the Judge did not even consider the ISP exemption in Article 5.1 of the Copyright Directive. Instead, the case centered around the 'mere conduit' exemption in Article 12 of the E-Commerce Directive.

In a nutshell, the case shows that the availability of fitering technology to ISPs and other service providers suggests that immunity may depend on them taking a more proactive role to deal with illegal content than was envisaged when the immunities were created around 2000.

Although the Judge noted that there was no obligation on the ISP to monitor - see my comments above - the Court decided in favour of SABAM. The Court decided that to be able to take advantage of the immunity, the ISP in this case had a duty to use filtering technology. He was influenced by one of the introductory paragraphs in the E Commerce Directive that said that the absence of a duty to monitor ".should not preclude the development and effective operation of technical systems of protection and identification and of technical surveillance" instruments made possible by digital  technology."

Defamation?

The recent defamation case involving the ‘Mumsnet’ website – settled out of court - highlighted the uncertainty about how ‘expeditious’ the host site has to be in order to rely on the ‘hosting’ exemption in the UK’s E-Commerce Regulations.

The site was sued by Gina Ford, who is famous for espousing strictly regimented baby routines, over comments made in the site forums. The long-running case has been settled with a Mumsnet apology and a payment to Ford, but Mumsnet founder Justine Roberts has asked the DCA to reform the law.

"Though we don't accept that any of the comments made on Mumsnet were defamatory, we took the decision to settle at least in part because of the distinct lack of clarity about how the defamation law applies to web forums," Roberts wrote on her blog for Guardian Unlimited.

"Put simply, libel law has not caught up with the digital age. It regards a bulletin board just as it does a newspaper or a book, which is a bit like trying to use a set of railway signals to control the air traffic over Heathrow – the principles may be fine but different forms of communication, just like different forms of transport, require a different approach," she wrote.

Roberts, a former football journalist, said in the blog that she has asked the DCA to review the law. "This week Mumsnet has written to the Department for Constitutional Affairs urging the Government to reconsider this area in its forthcoming consultation on defamation," she wrote.

So where next?

As I suggested in my last post, the law and technology are fated to be in an asynchronous relationship, with one always chasing the other but never quite in sync. The E-Commerce Directive is due for review by the European Commission this year. But we have to complement the law with trans-national Codes of Conduct. These need to re-state what is expected of everyone - intermediaries, users and content owners and providers -  in order to balance freedom of expression with rights of privacy and property in a fair and reasonable way.

Laurie Kaye