This is the second part of a two part post discussing the relationship between Copyright and Freedom of Expression. Part 1 was published on Inforrm on 2 May 2012.
The wider the net of infringement is thrown, the greater the scope for copyright to engage with freedom of expression.
Traditionally copyright tended to concentrate on plagiarists or creators who ‘overborrowed’ from the work of others and on manufacturers and distributors.
Copyright bit hard on those at the head of the duplication supply chain: the owners and operators of printing presses, vinyl pressing plants, CD manufactories. It bit less hard on the middlemen between them and the final purchaser. In general they infringed only if they knew they were dealing with infringing copies.
At the point of retail sale it was not an infringement to purchase an infringing item. Even less was it an infringement to read or view an infringing item. Pre-digital, the burden of determining what was and was not infringing was thought not appropriate to place on the user of copyright works.
Digital technology has changed all that. The ubiquity of temporary and transient copies within user devices has provided the opportunity to argue that mere enjoyment of copyright works can infringe, and on a strict liability basis at that.
Enjoyment as infringement is in broad terms the issue currently before the UK Supreme Court in Meltwater (sub nom Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Limited and others). It is a telling indication of how far things have moved in the digital era that the judge at first instance in that case was able to say that the temporary copies exception “cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music.” (emphasis added)
Users and consumers are the least well equipped to determine whether something is protected by copyright, whether the purpose for which it is to be used requires authorisation, and if so whether it is authorised or not. In human rights terms, placing such a liability burden on the user may chill the right of freedom of expression. since the user may be deterred from legitimately accessing information and knowledge.
This issue concerns the degree of participation in an infringing activity necessary to be regarded as an infringer. Imposing liability on those who volitionally do the act or cause it to be done is (questions of strict versus fault-based liability apart) uncontroversial. But if liability is extended to those who merely facilitate or enable an infringement, that is likely to have an impact on legitimate activities which otherwise promote the dissemination of lawful material. The right of freedom of expression is consequently engaged.
Similar issues arise where accessory liability rules (such as those of joint tortfeasorship) impose liability on one person for the infringing act of someone else. The English courts have tended to draw a reasonably clear line between facilitation or assistance (non-liable) and involvement of a kind that makes the other person’s infringement one’s own (liable).
A particular area of potential conflict concerns online intermediaries. Conduits, hosts and other similar entities are the engines that drive the free flow of information on the internet. As platforms and pipes they can be regarded as facilitators. Many seek to characterise them as profiting from infringement and duty bound to prevent the use of their services by infringers. Regardless of the rights and wrongs of that debate, it has long been recognised that placing liability burdens on intermediaries has the potential to interfere with freedom of expression. This was specifically recognised in Recitals (9) and (46) of the Electronic Commerce Directive, which provided liability shields for conduits, caches and hosts.
Potential, as much as actual, risk of liability is capable of engaging with freedom of expression if a liability regime incentivises the removal of material that may not in fact infringe. This is often raised as an issue with ‘notice and takedown’ regimes.
It is natural to think that copyright is about copying. Indeed it is, but not only so. A whole range of acts restricted by copyright now exists. Some types of restricted act are more prone directly to engage freedom of expression than others. One of the most obvious is communication to the public, especially when deployed against linking.
Sir Tim Berners Lee said in the early days of the Web:
“The first amendment to the Constitution of the United States … addresses the right to speak. The right to make reference to something is inherent in that right. On the web, to make reference without making a link is possible but ineffective – like speaking but with a paper bag over your head.”.
The question of linking as infringement is a live issue. It is the subject of the current Svensson reference to the CJEU, in which some rightsowners are asserting a right to prevent others from linking without permission to authorised copyright material on their own sites.
The right of freedom of expression is also engaged in the context of links to unauthorised material. Cases such as Newzbin in the UK have held that at least in certain behavioural contexts some kinds of linking can amount to infringement by unauthorised communication to the public of the linked-to material.
The third group of sliders concerns Remedies
The degree of interference with freedom of expression is not just a question of liability, but also of remedies. The appellants in Ashbycomplained separately about the conviction for copyright infringement and the amount of the financial penalties.
Slider 9 From Pennies to Prison
– Criminal versus civil liability.
– For criminal liability: imprisonment versus fines.
– Compensatory awards versus aggravated, exemplary or punitive damages.
– Compensatory awards versus fixed (statutory) damages.
– Injunctions against future dissemination and the penalties for breach of an injunction.
Slider 10 From Targeted to Scattergun
Remedies that are not limited to the dissemination of infringing material, but have the potential to interfere with access to legitimate non-infringing material or activities, engage the right of freedom of expression in a particularly direct manner. Suspension or termination of internet access is one obvious example.
The engagement is more apparent when remedies are made available against parties such as intermediaries who do not infringe or, if the law does provide that they infringe, for whom freedom of expression is acutely engaged as a result of the nature of their activities (see Slider 7).
The CJEU in SABAM v Scarlet held that broad indefinite filtering injunctions against internet access providers (and against hosts in SABAM v Netlog) were incompatible with the freedom of expression rights of users of the services:
“that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. … Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.”
The UK courts in cases such as Newzbin2, Dramatico v BSkyB andEMI v BSkyB have recognised that blocking injunctions against ISPs engage the freedom of expression rights of internet users.
Where the site requested to be blocked is unrepresented before the court and the defendant ISPs do not contest the injunction, procedural safeguards may be relevant to ensure that the court is fully equipped to evaluate the implications for freedom of expression of internet users.
This post originally appeared on the Cyberleagle Blog and is reproduced with permission and thanks
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