Francis Davey on E-Books and DRM

One of the things I like about volunteering for the Open Rights Group is that you get to meet smart and interesting people like Francis Davey. A query on one of ORG's mailing lists has prompted Francis to write a review of the law surrounding DRM and e-books, likely to be of interest to anyone thinking of buying an e-book or e-reader.

Star Wars II: Ainsworth Strikes Back

Nearly a year and a half ago my first substantive entry was about the High Court judgment in Lucasfilm v Ainsworth, alias the Stormtrooper Armour Case. I said at the time:

"Both sides will want to appeal; Lucasfilm against the decisions on copyright and enforceability of the US judgment, Ainsworth against the decision that he is liable under US copyright law. If permission to appeal is granted - and the legal issues are controversial enough that I would be astonished if it is not - then we are unlikely to see a hearing until the middle of 2009 or so."

Ah, such naive optimism! The appeal hearing wasn't until November, and the judgment (Rix, Jacob and Patten LLJ) was handed down last Wednesday. Other minor matters (plus my job) have been occupying me since then, during which time several bloggers far more informed and eloquent than me have given excellent summaries of the outcome. I fully endorse the IPKat's disappointment that the meaning of 'Work of Artistic Craftsmanship' was not further discussed, whilst I still feel that the array of (not inexpensive) Star Wars memorabilia on sale at such geek emporia as Forbidden Planet lend some support to The 1709 Copyright Blog's nagging anxiety that something as iconic as the Imperial Stormtrooper must have some element of artistic merit. But that was not quite the question Their Lordships were being asked to rule on, and in the end Lucasfilm v Ainsworth stands as an illustration of how trying to draw a boundary between Industrial Design and Artistic Copyright is bound to lead to cases where a work that would seem to belong on the fact of it in one category ends up being placed in the other.

This is very much borne out by the reaction of web sites and blogs aimed at science fiction fans, as seen in this post on io9. Almost without exception the reaction is one of disbelief that the armour was not deemed to be a work of art, although it seems that few commentators appreciate that this judgment has a relatively narrow scope - it is certainly not the end of all IP protection for Lucasfilm, for instance. Meanwhile, for a perspective from the movie prop and memorabilia business, see this write-up from The Original Prop Blog.

Andrew Sharpe of Charles Russell probably has the best title of any write-up of this case; yes, I know Jeremy Phillips beseeches us not to use dreadful puns for IP reports, but I can't help but liking "Obi-Wan Jacobi"! As well as an excellent summary of the issues at hand, he also notes that Lucasfilm have very strong motivation for seeking a further appeal to the Supreme Court, and not just on the basis that its Star Wars productions tend to come in trilogies...

Meddle Not in the Affairs of Wizards

As you might notice from the updated profile I am no longer swelling the ranks of the unemployed. (In fact, since for various reasons I wouldn't have qualified for any benefits I never signed on, so strictly speaking never did, but I'm allowed the odd metaphor now and again.) I am now an RA in QMUL's Law Department, working at the Centre for Commercial Law Studies on a project looking at the legal issues relating to cloud computing.

More on that some other time, perhaps, but for now I see that IP is back in the news again with the story of 'Ms Marmite Lover', who is being threatened by Warner Bros for planning to put on a Harry Potter themed dinner. For once we have more than newspaper stories (written, with the best will in the world, by someone who probably doesn't know much about trade marks or copyright*) as Ms M-L has kindly reproduced the cease-and-desist letter in question.

[*I'm not suggesting reporters or staff writers are legally ignorant. However, most are probably hottest on subjects such as defamation and privacy.]

I'm afraid I can see W-B's point. It looks like this is not quite a domestic dinner party, but rather an openly ticketed event, so Ms M-L is arguably using the phrase 'Harry Potter' - a trade mark of Warner Bros - in the course of trade. Now, she understandably claims that from her point of view she is using it purely as a sign of being a fan rather than a suggestion that her food is somehow from, or endorsed by, either Warner Bros or J K Rowling herself. Unfortunately this is a buoy we've all sailed round before during the voyage of Arsenal v Reed, with its ECJ ruling, endorsed by the Court of Appeal, that 'badges of affiliation' can and do infringe trade marks. Having said that, Ms M-L's use seems rather de minimis and there is a risk that Warner Bros' action may be seen as yet another example of Big Business using IP rights to squash what most people would see as harmless fun. As a supporter of and believer in IP I think it needs all the good publicity it can get, but these days it only ever seems to get the other sort no matter how hard the IPO tries to rope in the services of Wallace and Gromit.

ORG Debate on Three Strikes - London, Fri 2 Oct

If you're interested in the whole ongoing mess about the threat to cut off the net access of alleged file-sharers (see my earlier posts on three strikes) then come along if you can to the Open Rights Group's forthcoming public debate on the issue. It's on the evening of Friday 2 October near Farringdon, and if you book in advance it costs £10 if you're an ORG supporter or £15 otherwise. Or if you book now and become and ORG supporter by the time of the event, admission is free!

3 Strikes: Here We Go Again

A little while back I blogged about how the Digital Britain report appeared to accept that delivery of government services by internet was so important that disconnection as a sanction for filesharing was a step too far. (For earlier discussions of Three Strikes and Amendment 138, see here, here, here and here.) Well, as is being extensively reported (Guardian, Technollama, BoingBoing) it now appears that there has been if not exactly a U-turn then certainly a sharp veer in the direction of harsher measures - 'harsher' meaning 'including disconnection from the internet'.

So what exactly is being said? This release from the Central Office of Information announces not new laws but rather a revised consultation process regarding sanctions for filesharing. It seems that following feedback from rightsholder organisations (and more on that below) HM Government has decided both that the original timescale - which would not have seen measures implemented until 2012 - was too long, and that it was wrong to rule out disconnection as a sanction.

What we now therefore have is a revised and extended consultation from the Dept of Business, Innovation and Skills (PDF here) seeking further input on a number of these issues. Some parts of this consultation particularly caught my eye. For example:

"Any technical measures deemed necessary and appropriate by the Secretary of State would be introduced by Ofcom via secondary legislation."

It's important to note that 'secondary legislation' means statutory instruments which are not voted on by MPs, although MPs can register objections to them - if they hear about them in advance amidst New Labour's avalanche of secondary legislation. In other words, our MPs won't be asked to vote on this.

"It would be important to ensure as far as possible that innocent people who may be affected by such technical measures would retain access to the Internet services they need, including online public services."

That's jolly nice to hear, although 'as far as possible' includes quite a lot. I may be being unduly cynical, but I can't help wondering if the terminals in local libraries (or as Tower Hamlets now calls them, 'Idea Stores') will be deemed to provide such essential access.

Then we get onto the question of measuring illicit filesharing and defining what is and isn't acceptable. The original plan was for a detailed study of this, on the basis that policy should be based on evidence. Actually, I take my earlier words back - here there is a blatant handbrake turn.

"Evidence – although we have no doubt Ofcom would have carried out their research under the original proposals in their usual thorough manner, measuring unlawful P2P activity across a range of networks and different content is extremely difficult."

This is what a former colleague of mine called 'filing in the TOO DIFFICULT' tray.'

"On reflection, using a precisely defined “trigger” as the basis for introducing technical measures would not be sufficiently flexible (for example it would not allow the wider health of the broadband or content markets to be taken into account), and under-estimated the inherent difficulties of measuring this unlawful activity with precision."

Or, to put it another way, drawing a line in the sand involves awkward questions about where the line should go...

"In reaching his decision, the Secretary of State will have to carefully weigh the evidence available to him and make any order on the basis of defendable information based largely but not exclusively on the reports from Ofcom."

...so instead lets listen largely to Ofcom's general thoughts, plus input from other sources (I can't imagine who.)

"But even so, the Secretary of State can do this much quicker than the process which the regulator would have to go through if acting alone."

Because when a large rights organisation is breathing down your neck, speed, rather than accuracy, is of the essence!

Then we get onto talking about disconnection.

"Since the issue of the consultation some stakeholders have argued strongly that none of those technical measures is powerful enough to have a significant deterrent effect on infringing behaviour."

In other words, the self-appointed gamekeepers are not surprisingly complaining about being denied sufficiently big mantraps.

"Taking those points into account, although we continue to regard the uptake and use of Internet services as essential to a digital Britain, we are considering the case for adding suspension of accounts into the list of measures that could be imposed."

Translation: "Having been told that we're a bunch of wusses, the nuclear option is back on the table."

"...this step would obviously be a very serious sanction as it would affect all members of a household equally, and might disrupt access to other communications, so it should be regarded as very much a last resort."

I can't help but read this as a rearguard sop to the original conclusions of the Digital Britain Report. Once again though we have weasel words; it's all well and good to say that a measure should be 'regarded as very much a last resort' but will that be the case in practise? We lawyers are told to put our client's case at its highest; if disconnection is available, that's what we're going to be expected to push for.

"As ever we would need to ensure any such measure fully complied with both UK and EU legislation."

Well, that's all right then because we have Amendment 138 to the Telecoms Package to protect us. Except, that as the splendid and endlessly energetic Monica Horten has detailed over at IPTegrity.com, the EU Commission is trying very hard to water it down with, as Monica notes, UK Government support. In other words, the Government position is on the one hand that disconnection should be in accordance with UK and EU law, and on the other that UK and EU law should not preclude disconnection.

So where is all this coming from? A number of commentators have observed that only a few weeks ago Lord Mandelson dined with media mogul David Geffen (see this Times report from last week, which nicely anticipates today's developments). I'm not going to speculate, but it is hard to avoid the feeling that more than a little high-level lobbying may have been going on, as evidenced by that line in the new consultation document about how 'some stakeholders have argued strongly'.

As this BBC report explains, the latest proposals are causing considerable consternation, not least among the ISPs who may be forced to implement and enforce such measures, at considerable cost in time, money and in all likelihood customer satisfaction. What can we do? The Open Rights Group, for which I initially researched Amendment 138, is urging people concerned by these developments to write to their MPs. Another option comes out of the fact that, as I've noted above, this is still just a consultation. The DBIS is seeking comment on this proposal; now is the chance to make (reasoned and temperate, please) responses to it.

Cyber-Harassment: Go Directly to Jail

The Guardian reports that Keeley Houghton, 18, of Malvern, has been sentenced to three months' imprisonment for threatening on her Facebook page to kill another young woman. If this sentence sounds a bit harsh for what some might take as childish invective, it was apparently the latest in a long string of instances of Houghton persecuting her victim, including incidents that had led to previous convictions for assault and criminal damage. None of the reports I can find are specific about the offence Houghton was prosecuted for, although the reference to 'Harassment' makes me suspect that the charge was under s.1 Protection from Harassment Act 1997. This requires a 'course of conduct' of two or more incidents that a reasonable person would think was harassment. The report in The Guardian indicates that Houghton had earlier harassed her victim in a pub, so two instances within a few days would certainly be a 'course of conduct' as far as the court was concerned.

This case indicates, probably unsurprisingly, that sending abusive messages on Facebook or via any other social networking site is seen no differently in the eyes of the law from verbal abuse or sending poison-pen letters. But what other legal avenues are open to prosecuting this sort of behaviour?

Another way of prosecuting harassment is under s.5 of the Public Order Act 1986, which defines the offence of causing harassment, alarm or distress. Under s.5(1)(b), an offence is committed if someone

"displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."


But it is unlikely that a posting on Facebook would be considered to be such a 'display of writing', especially considering that the Act goes on to say at s.5(2) that:

"An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling."

Blackstone's Criminal Practice notes at B11.71 that it was held in Chappell v DPP that receiving an abusive letter at home does not constitute an offence under s.5, because it falls in the exclusion under s.5(2). In the course of giving judgement, Potter J noted that had the Malicious Communications Act 1988 been in force when the acts in question had been committed, they would have certainly comprised an offence against s.1 of it, which (as now amended) provides that:

(1) Any person who sends to another person—

(a) a [letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive; (ii) a threat; or (iii) information which is false and known or believed to be false by the sender; or
(b) any [article or electronic communication]2 which is, in whole or part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

This would on the fact of it seem a more fruitful option for charging someone who had made malicious Facebook posts. So, a one-off incident would probably be charged under s.1 MCA 1988, whilst repeated incidents, or one that formed part of a larger course of conduct, would be an offence under s.1 PHA 1997.

Now, it's safe to say that there is a great deal of abusive and harassing material on the Internet. Very little of it ends up in court, and such cases have often been based on defamation rather than harassment. But the impact of bullying should never be underestimated; it can and does ruin lives. Hopefully, this case will show that persistent bullying and harassment, including via online services, can and will be dealt with in the criminal courts.

What it does raise though is the question of what sort of forum such bullying can take place in. If I abuse someone in Second Life, am I harassing them or sending a malicious communication? If I build a large advertising banner in Second Life that displays abusive messages about another user, does that count under s.5 POA? Probably not, for jurisdictional reasons if nothing else, but the question of 'where' the inside of a shared world actually is crops up increasingly often in legal discussions. It's a fascinating topic, so much so that I'd be tempted to write a novel about it - except that my friend Charlie Stross has done so already.

SCRIPTed Vol 6 No 2

There's a new SCRIPTed out - Volume 6 No 2 is now online, with a spread of papers coming out of the recent SCRIPTed conference on governance of new technologies. I'm very pleased to see that papers are already been picked up for wider media attention, with Daithí Mac Síthigh's article on the legal aspects of sharing broadband through wifi having been discussed by The Register and The Telecom.

The Lesser Spotted Hairy Law Clanger

Depending on whether I get Pupillage, and on whether wigs kept on being worn in civil cases, this may be your one and only chance to see me with a full head of hair - even if it is courtesy of Messrs Ede and Ravenscroft!

Congratulations to my fellow BVC students who were Called yesterday - the best of luck to you all.

Machinima and the Law Podcast

Machinima is the use of real-time 3D rendering software - typically that used by computer games - to make cheap but high-quality CGI movies. I recently had the pleasure of being interviewed by Hugh Hancock, leading light in the Machinima community and indeed the originator of the term, regarding the legal issues arising from it. The interview is available as a podcast from Hugh's blog (one hour, 82 MB MP3) - my thanks to him for the opportunity for a fascinating discussion!

(Despite this blog's name, the interview contains no whistling. It does contain one four-letter word, but I am repeating a quotation given by Geoffrey Robertson QC in his text Media Law, so that's all right then.)

NPG v Wikipedia

It’s not often that copyright cases get into the news, although there are notable exceptions, such as Lucasfilm v Ainsworth last year, or the Harry Potter Lexicon case in the USA. But the current spat between the National Portrait Gallery and Wikipedia made the front page of the BBC news website a couple of days ago. At its heart (although there is more to it than this) is a simple copyright question: does a faithful copy of a work – in particular, a work that is now out of copyright – enjoy copyright protection in its own right?

The NPG is complaining that a Wikipedia user, Mr Coetzee, copied high-resolution images of some 3,300 paintings from its website and posted them on Wikipedia. In a letter from its solicitors it asserts that these images are all recent original photographs taken by the NPG and that the NPG therefore holds their copyright, and that Mr Coetzee has infringed this. Mr Coetzee’s position is that the paintings are out of copyright, and since the images he downloaded are quite literally copies rather than original or even transformed or derived works then there cannot be any copyright for him to have infringed.

This is an intriguing issue and for the last few days I have been discussing it with a number of my fellow volunteers for the Open Rights Group. This has been a very interesting experience, especially as several of them are considerably more qualified and experienced in IP law than I am, and I’m grateful for their agreement that I could summarise our discussion in this post. (I should add that ORG is not taking any active role in this dispute, although its legally-qualified volunteers are observing it with keen interest. Furthermore, any legal errors or misconceptions are entirely my own.)

Does the NPG have a case? It is relying on s.1 and s.4 of the Copyright, Designs and Patents Act 1988, which provides that original artistic works, including photographs, enjoy copyright protection. Of course, this leads to the question of what ‘original’ means. Every copyright course I have undertaken has stressed that in English law the originality bar is set very low indeed; in effect, if you create an artistic work such as a photograph, you automatically get copyright in it. In the case of a painting, this is undoubtedly true. It’s even true for a simple drawing; s.4 provides that copyright arises irrespective of artistic quality. It is true for a carefully composed photograph. But if artistic quality is not required, what about skill and effort? The ‘sweat of the brow’ argument, often deployed in considering literary copyright, holds that a certain minimum level of skill and effort must be expended for copyright to arise. What is not clear, particularly in respect of a photograph, is whether that skill and effort applies to all aspects of a work’s creation, or just its originality. This is particularly relevant in the NPG’s claim, as whilst it seems clear that a lot of skill and effort when into photographing its paintings, it was aimed at ensuring that the photographs were as faithful a copy of the paintings as possible – in other words, that no originality was introduced at all.

As early as 1869 it was held in Grave’s Case 4 LRQB 715 that a photograph of an engraving enjoyed copyright under the then-current legislation. However, this view has not invariably been followed; consider, for instance, the comments of Lord Oliver in Interlego v Tyco Industries [1989] AC 217:

“It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality.”

Now, this was a decision of the Privy Council, and furthermore was strictly obiter. However, it was applied in The Reject Shop Plc v Robert Manners [1995] FSR 870, which was an appeal by way of case stated from a private criminal prosecution under s.107 CDPA 1988. In considering whether copyright subsisted in an enlarged photocopy Leggat LJ held that it did not:

“The process was wholly mechanical and there is nothing to suggest that enlargement was for any purpose of that kind. There was, in short, no evidence before the magistrate of the exercise in the production of what he called the “distorted photocopies” of any relevant skill and labour whatever. It follows that the final images were not original works and so no copyright could subsist in them.”

This is what I term the ‘photocopy argument’ – that if the method of reproduction amounts in nature if not exact technique to photocopying the original artwork, then no new copyright can arise. If the NPG possessed a very large flat-bed scanner and scanned its painting, then it would be hard to argue that the resulting digital image enjoyed independent copyright. If the painting was instead photographed and the image carefully processed to even out any lighting inconsistencies and eliminate distortion, then it would in principle be identical to a scanned image. Is it significant that extra skill and effort went into its creation if the only consequence of that skill and effort was to remove any element that distinguished it from a pure mechanical copy?

The counter-argument, which was originally presented by Kevin Garnett QC in an article in the European Intellectual Property Review (EIPR 22(5) 229-237) considers a photograph of a scene in which no copyright can subsist, such as a landscape. If the photographer exercises no skill or judgement and has limited capacity even to pick a particular viewpoint, then copyright still arises. This image, taken by me from the London Eye, has not been corrected or cropped, and I did not have the option of where to take it from or even, given that I was on a timed ticket, when I took it. Hundreds of similar pictures must be taken daily. But nonetheless, my picture undoubtedly enjoys copyright. So why shouldn’t another picture of a scene without its own copyright, such as an out-of-copyright painting, not also enjoy copyright, especially if the photographer in that instance employed much more skill and effort than I did.

I think it’s fair to sum up our discussion as concluding that the matter is open. There is no recent binding authority either way, although cases such as Interlego and Reject Shop point against copyright arising. Nonetheless, arguments can be made both for and against; my own feeling is that a straightforward application of the law would support the NPG, but that a reasoned argument could well be made against it.

A complicating factor is that Mr Coetzee is not in the UK; he is, as I understand it, in the USA. A US court has ruled on this very issue, in Bridgeman Art Library v Corel Corp. There, it actually sought to apply UK law and interpreted it such that a faithful photographic copy does not enjoy copyright, a position consistent with the US approach to this issue. But if the NPG does go on to sue Mr Coetzee, it would do so in an English court, which might be influenced by Bridgeman but would be under no obligation to follow it.

The NPG makes other claims, including breach of contract, bypassing of technical protection measures and database right infringement. The first would probably run into problems of consideration (or rather lack of it), whilst the second does not seem tenable – the software used by the NPG to display hi-resolution images by increasing the resolution as you zoom in is hardly in the same league as encryption or digital watermarking. The database rights claim is less clear-cut, though.

The usual case referred to in interpreting the sui generis database right is British Horseracing Board v William Hill [2005] RPC 35. The point generally taken from this case is that significant investment in creating the database is necessary for the database right to arise. On that basis, I assumed that irrespective of the copyright point, the amount of effort put into acquiring the images of the paintings for the NPG’s database would give rise to a database right (which would almost certainly have been infringed by abstracting 3,300 entries from it.) However, a friend who manages a large commercial database reminded me when I was discussing this case that the ECJ decision that BHB is based upon also emphasised that this investment must be in the creation of the database itself. As confirmed by the Court of Appeal, the right arises where the database creator has invested effort in creation of a database of existing available data, rather than in creating or approving the data. Indeed, if the data is such that it is only available to the database creator, then the database right does not arise (see Kon and Heide, E.I.P.R. 2006, 28(1), 60-66).

And this could be a fatal hole in the NPG’s database claim. The whole basis of the NPG’s copyright argument is that it does not permit unauthorised copying of its paintings; the only body with legitimate access to the data that has gone into the NPG’s image database is the NPG itself. Nobody else is in a position to lawfully create such a database, no matter how much effort they put into doing so. On this argument, the NPG’s database does not attract database right protection.

It’s not at all clear at this stage what will happen. Mr Coetzee may well not acknowledge the claim in the hope that the NPG, even if it obtains judgment in default, may well not seek to enforce it in the US courts. But if it does come to court in England, then both the copyright and database right claims may well be a lot more open to argument than one might originally think.

Update: At TechnoLlama, Andres Guadamuz has looked in much more detail at the contract claim. I agree with him that formation is probably not in issue, but as I've noted in my comment to his post I think there are very serious problems with consideration (i.e. the NPG has received no payment or benefit from Mr Coetzee.)

More on Cameras

Following up from yesterday's post, I've had some interesting and thought-provoking comments (some here, some on a personal blog where I posted a link to yesterday's entry). I thought I'd address some of the points raised.

Interpretation

This whole issue is over whether a camera would be considered to be a computer under s.3 Computer Misuse Act 1990. This is a matter of statutory interpretation, so what do the normal principles by which courts do this tell us?

The first rule of statutory interpretation is the 'Literal Rule' - words are to be taken as meaning what they say. On the one hand, this might go against taking a camera to be a computer, because on the face of it a camera is one thing and a computer is another. As I said yesterday though, whilst this might have been clear-cut when the CMA was first drafted, it is a lot less so now, and I still think a good case could be made that a literal interpretation would be by no means unambiguous.

The second rule is the 'Golden Rule' - words should not be interpreted so as to lead to an absurd result. I would submit that not to define a digital camera as a computer would lead to the absurdity that it would be permissible to delete photographs from a memory card whilst it was inside the camera, but illegal if it was removed and plugged into a PDA. Why should it be legal to do this when the card is in one gadget held by the photographer but not when it is in another?

Finally, there is the 'Mischief Rule' - where doubt remains, look at the undesirable behaviour, or 'mischief', that the law is trying to prevent. The intent of s.3 is clear: it was enacted to close a loophole in English law by which it was not an offence to damage, destroy or block access to data in circumstances where the same act in relation to a physical embodiment of that data (e.g. a tape, floppy disk or hard drive) would have constituted criminal damage or theft. Now, I think it likely that if someone insisted on pulling the film out of a camera and exposing it to the light, then this would be criminal damage, because the film would have been rendered useless and the pictures on it lost. So there is no reason why equivalent conduct with a digital camera should not be treated in the same way - the underlying mischief is the same.

Intellectual Property

Somebody asked if an action might law in respect of the IP in pictures deleted on a camera. My understanding of this, as reinforced by a quick look at Copinger and Skone James, is that no criminal or indeed civil action lies for the destruction of copyright material - only for its infringement. C&SJ goes as far as to say that outright destruction (as distinct from mutilation) does not even infringe the moral rights of the photographer, because there is no remaining mutilated image to be seen. If you could prove that an image would have had real, tangible value - for instance if you got a very newsworthy shot but a police officer forced you to delete it - then I can see that you might be able to sue for trespass and claim damages. But I don't think that IP can be of much assistance.

Other Offences

As some other readers have noted, if a security guard - who by my understanding has no rights to confiscate an item from somebody - takes or tries to take a camera, he or she stands a good chance of being liable for assault, robbery or possibly blackmail. I'd welcome comments on this.

What is a Computer?

(A word of warning: more so than normal, this blog entry is my opinion, and does NOT constitute nor should be relied upon as legal advice.)

Readers might be forgiven for thinking that the answer to the question posed by the title of this entry is, quite literally, staring me in the face. Yes, I’m typing this blog on what it quite unquestionably a computer. But what else counts as a computer? A PDA? Yes, no question of it. A smartphone? Almost indisputably, especially given that my iPhone is far more powerful than many PDAs, or indeed many portable computers of only a few years ago. But what about a digital camera?

My question isn’t purely academic. As a keen photographer I’ve followed with both interest and concern the growing number of accounts of photographers being stopped and searched under anti-terror legislation, or harassed by security guards, again often on the pretext of security. A common feature of such incidents is the demand that the photographer delete images on his or her camera. And this explains my question, because I think there is a good case to be made that to do so is illegal under the Computer Misuse Act 1990.

It turns out I have company in high places in this regard. Lord Carlisle, in his 2008 annual report on the operation of the Terrorism Act 2000, notes with concern reports of the use of recent anti-terror legislation against photographers (see paras 195 to 197) and specifically comments that police officers who use force against photographers to, for instance, make them delete photographs, risk liability for both disciplinary and criminal proceedings. What I am suggesting is that irrespective of other liability under such legislation as the Police and Criminal Evidence Act 1984, the CMA may well provide specific protection to photographers.

(As an aside, there is a simple and practical approach to dealing with such incidents: comply with the demand, and then use readily-available data recovery utilities to recover the deleted files later, so long as no new pictures have been recorded on the memory card in question. But that doesn’t address what I consider to be the unjust nature of the demand in the first place.)

The relevant part of CMA 1990 is section 3, as recently amended by the Police and Justice Act 2006. S.3 provides that it is an offence for a person to, knowing that the act is unauthorised (s.3(1)(b)), prevent or hinder access to any program or data held on a computer (s.3(2)(b)). If a digital camera counts as a computer for the purposes of CMA 1990, then deleting a photograph from it would constitute preventing or hindering access to data held on it. (Even if the image was recoverable, it would still count as ‘hindering’.) The relevant questions are therefore whether a digital camera does count as a computer and whether a demand by a police officer or security guard to delete photographs is deemed to be unauthorised.

The second question is the easier one to answer. S.17(5) CMA 1990 says that access is unauthorised if it is by someone who would not be entitled to control access to that data, and who does not have the permission of someone who does. The only person entitled to control access to a computer owned by me and in my possession is me; the same applies to any device that counts as a computer for the purposes of CMA 1990.

Now, s.10 CMA 1990 does provide certain exemptions for law enforcement, and in particular it says that access by a constable or other investigating officer is not unauthorised even if done without consent. However, it very also very clearly states that this only applies to the offence created by s.1(1) CMA 1990, that of gaining unauthorised access to computer material. It does not apply to s.3. So, in the context of a camera, an officer may look at pictures stored on it in the course of a lawful search because s.10 makes such access lawful. But s.10 does not make it lawful to infringe s.3 by deleting them.

All this of course presupposes that a digital camera is a computer, at least as far as CMA 1990 is concerned. Unfortunately, whilst the Act includes a lot of other definitions, it is silent as to what a computer is; whoever drafted the act evidently thought it obvious. It probably was obvious in 1990, when even the advent of PCs had not changed the understanding that a computer was a box that you typed data into and which gave output in text or graphics on a screen or via a printer. But, as I noted earlier, today we see a much wider range of devices as being computers. As I said, my iPhone is almost certainly one by any reasonable definition. Now, it incorporates a camera (quite a good one, as I have one of the new 3GS models) and I am confident that there would be a very strong case that if anyone tried to make me delete pictures on my iPhone or attempted to do so themselves then they would be committing an offence under s.3 CMA 1990.

But the iPhone is a general-purpose device, not one dedicated to photography. (Yes, I know it’s strictly a phone. But it is really a small, powerful PDA with a phone built in, as is clear from the way Apple will sell you an iPod Touch that is almost identical but sans phone.) My Canon digital SLR is made for the sole purpose of taking photographs; it is definitely more of a camera than my iPhone, but is it also less of a computer?

How have other countries sought to define computers? Singapore’s Computer Misuse Act is closely modelled on the UK Act, but with additional explanatory material that defines a computer as

“an electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such devices, but does not include an automated typewriter or typesetter, a portable hand held calculator or other similar device which is non-programmable or which does not contain any data storage facility.”

Would this include a digital camera? It mentions both electronic and optical elements, together with data storage – all of which a digital camera possesses. The exclusions seem to me to relate to devices that cannot store data or run software. Digital cameras clearly do the former, and indeed can run software too, as is seen from the patches posted by manufacturers.

If we accept that the Singaporean definition of a computer is a reasonable one (and speaking as someone who’s been studying computers one way or another since the mid-1980s, it seems eminently sensible to me) then it is hard to avoid concluding that English law should recognise a digital camera to be a computer for the purposes of the CMA 1990. If so, then s.3 makes it an offence to delete, or seek to force someone to delete, photographs from such a camera without lawful authority, and as the s.10 exception does not apply to s.3, mere investigation does not provide such authority.

Does this mean that I think that anyone told to delete photographs should refuse to do so and cite s.3 CMA? As I said earlier, this post is not legal advice and must not be taken as such. What people do under such circumstances must be up to them; however, I feel that should a complaint about forced deletion of photographs be pursued, then the s.3 CMA aspect is at least deserving of consideration.

Libel and Science: Not Happy Bedfellows

(Yes, this is my third blog entry in as many days. You might almost think I'd finished the BVC.)

Since I proclaim this to be an IP and Technology Law blog it might seem odd to talk about Libel. True, libel tends to be seen these days as part of the wider field of Media Law, itself a close cousin to IP. Nonetheless it is not an area I have taken much interest in beyond the curiosity most of us have about an area of law that positively excels in the parties being even ruder about each other than normal.

One case has changed that, however: British Chiropractic Association v Singh. As has been extensively reported, the BCA is suing science writer Simon Singh over an article he wrote for The Guardianlast year, in which he cast doubt in the strongest terms over the BCA's claim that chiropractic - a form of 'complementary medicine' that involves manipulating the spine - could help with childhood diseases such as colic. Now, I came into law from a scientific/engineering background, and perhaps rather naively I tend to assume that they way you settle scientific disputes, as distinct from ones about negligence, contracts or badly-placed hedges, is by rational argument on the basis of the evidence. The BCA beg to differ, and have sued Singh.

Why am I interested? For one thing, I enjoy Singh's writing. For another, I was at Imperial College with Singh back in the late 1980s, and although I can't say we knew one another well I'll confess to a degree of loyalty to a fellow alumnus. Above all though I consider it profoundly wrong that defamation law is being used to substitute for scientific debate.

Much, much more detail about the case than I can go into here has been posted by Jack of Kent; see his blog for updates and links to the now very extensive coverage of this issue in the wider press. I am writing this though because BCA v Singh has been an eye-opener for me as to some of the more disturbing aspects of defamation law. It is strange enough that, unlike in most other causes of action, the burden of proof lies principally on the defendant. It is even more disconcerting when that burden is pushed to almost insurmountable levels by preliminary rulings that can define the scope of the alleged libel in terms that the defendant may be wholly unable to prove. Finally, whilst all litigation can be expensive, the costs of libel cases in England can be positively ruinous; a recent study by the University of Oxford found that a libel trial in England typically costs 140 times the average cost in the rest of Europe.

Whatever the issues with libel trials in general though, it above all remains wholly inappropriate to use this cause of action to stifle scientific debate. A positively stellar list of luminaries has signed a statement to this effect; ten thousand more readers have added their names, myself amongst them. The progress of science and medicine depends on open, frank discussion of the merits and hazards of treatments, be they conventional or complementary. Seeking to suppress such discussion helps no-one.

Singh is currently seeking leave to appeal the preliminary ruling in this case. I am sure Jack of Kent will be first with news whatever happens. In the mean time I earnestly hope for an outcome that is not only good news for Singh but also good news for everyone who writes about contentious aspects of science.

Digital Britain meets Amendment 138

The Government's Digital Britain report came out yesterday (download a copy from here) and has already drawn comment from several of my fellow bloggers (panGloss and Technollama in particular). Given my involvement in ORG's analysis of the Telecoms Package, my particular interest is in how far this report goes in acknowledging the concerns ORG raised, especially in relation to so-called 'Three Strikes' sanctions for alleged copyright infringement.

The first main area of interest is actually from near the end of the report. Chapter 8, on Digital Government, places great store on the extent to which essential government services will increasingly be delivered online. Indeed, the report refers to a 'Digital Switchover' of such services, akin to that already taking place for analogue broadcast. This is relevant because it emphasises just how serious a sanction disconnection from the Internet would be in such a world. As para 8.16 notes, candidates for early switchover include electoral and school registration and debt and redundancy advice; denying access to such services would very much engage human rights concerns. This may be why Chapter 4, relating to creative industries, is not as draconian as some observers may have expected; there may well be growing awareness within government that if 'digital exclusion' is seen as a social ill, it is hardly appropriate to wave it as a potential sanction.

Turning to Chapter 4, other commentators have noted that the report acknowledges rights-holder claims of economic damage through file-sharing. Having said that, it's worth noting that it does not do so uncritically - para 4.17 is careful to use qualifiers such as 'indicated' and 'claim'. Nonetheless, HMG sets out its position firmly in the next paragraph, describing online piracy as a 'serious offence' and stating that a 70-80% reduction should be the government target. It goes on to dismiss the views of the 'minority of the anarchic'; I wonder if this part of the report was written before or after the Swedish Pirate Party got their first MEP? Now, I don't agree with the PP's position, but its electoral success in Sweden (and this report harps on a lot about looking to Scandinavian and Nordic models for IPR reform) does indicate a significant degree of public unhappiness and disengagement with mainstream views of IPR, and I'm not sure such positions should be dismissed rather than engaged with.

As to practical measures, the report calls for an industry body to be set up under legislative oversight to address rights issues. This is in line with proposals in the Telecoms Package to "promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the promotion of lawful content in electronic communication networks and services" (in the Universal Services Directive). What about sanctions, though? Much discussion has been of the 'Three Strikes and you're Out' model proposed by the French Government under the recently-failed HADOPI legislation, that would have an escalating series of notifications and warnings upon allegation of copyright infringement culminating in disconnection. What we see in the Digital Britain report is rather different though. As per the box on page 113, following para 4.31, the proposal seems to be for notification and warning accompanied by collection of evidence to be made available via court order. One might term this 'Two Strikes, Then We Let Someone Sue You'.

The report goes on to list other sanctions that might be brought into play if this approach does not lead to the desired reduction in file-sharing. The first point is that this implies that it is anticipated that legal action will be via conventional channels and sanctions, i.e. damages where infringement is proven in court. Secondly, even the prospective future measures seem to stop short of disconnection. They included throttling, shaping and various targeted blocking approaches that seem aimed at limiting Internet access to certain sites or services rather than stopping it altogether. It's also not clear though whether these sanctions will come as the third 'strike', via court order, or as a consequence of one of the earlier warnings, at the behest of the ISP.

Now, how does this tie in with the successful campaign to save Amendment 138, the EUP-sponsored provision that would require sanctions to be in accordance with due legal process? As passed by the EUP in May, the Amendment incorporates the following text into Article 8(4)(h) of the Framework Directive:

"applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent"

As the late Professor Joad would have put it, it all depends on what you mean by "fundamental rights and freedoms of end-users". If you confine these to the right to have Internet access at all, as hinted at by Chapter 8's discussion of ubiquitous and essential digital services, then Chapter 4's proposals probably are compliant with Amendment 138. There is no suggestion that Internet access would be cut off altogether, even for the most persistent offenders (although they might be sued into penury). However, if you take a wider view, you might argue that the other sanctions discussed such as constraining or blocking certain services might well be an infringement, and given that it seems that these will be 'strike 2', at the ISP's discretion, rather than 'strike 3' after a court order, then on such an interpretation they would not be compliant with Amendment 138.

To summarise, what we have here is a report that seems to acknowledge the folly of threatening total disconnection from the Internet as a sanction for alleged rights infringement, and which puts forward proposals that would, as per Amendment 138, require a judicial ruling before opening up alleged file-sharers to serious sanctions. What is not clear, however, is whether this also applies to other technical measures such as blocking or throttling, and this is a point on which further consultation should concentrate.

Hoffman on Laddie on Trade Marks

I've writter before about the legacy of Sir Hugh (formerly Mr Justice) Laddie, and his contribution to the development of IP law. This evening saw the first Sir Hugh Laddie Lecture at the Institute of Brand and Innovation Law he founded at UCL, featuring Lord Hoffman on the topic of Sir Hugh's dealings with the ECJ on the question of what exactly was the function of a trade mark.

It was a very good talk, and a fitting tribute to Sir Hugh. As Lord Hoffman readily admitted, it did not contain much in the way of radical revelation into trade mark law. Rather, he sought to trace the development of the tension between the English and European courts as to trade mark function via a series of cases in which Laddie J (as he then was) had been involved.

Now, it was clear from this that Lord Hoffman was setting out to tell us a story, and when you are being told a story it's important to bear in mind that the narrator will inevitably be imposing some sort of narrative structure and goal on it, if only to make sure that it is a story. Here, the narrative was very much the doughty English judge defending the traditional view of a trademark purely as a badge of origin against the encroaching European tide of wider trade mark function. This isn't to say that Lord Hoffman is anti-European; rather, he was to an extent telling the story of how a friend of his had done battle to preserve the understanding of what a trade mark was for that had dominated English IP law since the 1938 Trade Mark Act. That Act had made it clear that a trade mark had one role and one role alone: to indicate to a buyer where goods had originated. The 1994 Trade Mark Act, by implementing the common EC Directive on trade mark law, imported a new approach with more than a whiff of the traditional Benelux approach of viewing a trade mark as having aspects more akin to a brand.

Matters came to a head with the famous (or infamous, depending on your point of view) case of Arsenal v Reed. It was clear from Lord Hoffman's summary of the facts where his sympathies lay; as he put it, by selling scarves bearing the word (and trade mark) 'Arsenal', Mr Reed was simply saving his customers from scrawling the club's name on a blank scarf rather than asserting that his goods originated with the Gunners. Laddie J had felt much the same way, but had been obliged to refer the point to the ECJ. The A-G's Opinion had been sympathetic, and the ECJ had seemingly taken it aboard - but then found that in the current case, Mr Reed's actions in fact were trading on the reputation of Arsenal's trade mark. When the case returned to England, Laddie J promptly held that the ECJ had made a finding of fact - which was his job - and for the first and apparently only time anywhere refused to follow the ECJ. The Court of Appeal later took a rather more diplomatic (I've heard other words used) approach, and in the end Mr Reed lost. But Arsenal v Reed - along with cases on repackaging of drugs - brought home how much the 1994 Act had changed trade mark law, and how difficult it was to preserve the traditional narrow interpretation in English law of the function of a trade mark.

So what do we take from this? As I said, Lord Hoffman's narrative was clear. I can imagine of course a corresponding talk by a senior ECJ jurist taking, as its narrative thread, the steady exposure of England's old-fashioned and eccentric interpretation of what a trade mark was for in the face of sensible efforts to harmonise European law in this area. But it's hard to disagree with Lord Hoffman's closing comment that if, in implementing the Trade Marks Directive, Parliament had meant such a fundamental change away from a narrow right towards broader protection of what are in effect brands, then it should have clearly said so. All in all, an interesting and thought-provoking evening, and I hope that the Laddie Lecture goes on the way it started.

Good News on Three Strikes

In one of the more pleasant surprises of the long-running saga of the updates to the EU Telecoms Package (see my earlier posts here, here and here) the EU Parliament has soundly rejected moves to strip out legal protection for users against disconnection without recourse to law. Amendment 138 is back, and more importantly has been put back by the deliberate vote of a large majority of MEPs.

More on the story from Pangloss (thanks for the kind words, but many other people did far more than me!), Technollama and Monica Horten, who provided invaluable assistance to my ORG work regarding the minutiae of EC legislative procedures.

This is not the end of the matter, or even, to quote Churchill, the beginning of the end. But with any luck it is the end of the beginning, especially if there is now wider awareness of the issues among MEPs.

SCRIPTed, Vol 6 No 1, is now online

Yes, SCRIPTed, Edinburgh University's online journal of Law, Technology and Society, has reached its sixth volume, hence the cover picture. If you look hard at the top left corner of the big version, you can just see your humble scribe (look for the blue tie and thinning thatch).

Volume 6 Number 1 features another excellent set of papers and analysis pieces:

Peter S Jenkins on Virtual Worlds As A New Game Theoretic Model For International Law: The Case Of Bilateral Investment Treaties

Philip Leith and Maeve McDonagh on New Technology and Researchers’ Access to Court and Tribunal Information: the need for European analysis

Eddy D Ventose on Patent Protection for Second and Further Medical Uses Under the European Patent Convention

Nigel Waters on The APEC Asia-Pacific Privacy Initiative – A New Route To Effective Data Protection Or A Trojan Horse For Self-Regulation?

Rolf H. Weber and Romana Weber on Social Contract for the Internet Community? Historical and Philosophical Theories as Basis for the Inclusion of Civil Society in Internet Governance?

Wiebke Abel and Burkhard Schafer on The German Constitutional Court on the Right in Confidentiality and Integrity of Information Technology Systems – a case report on BVerfG, NJW 2008, 822

Daniel B. Garrie and Maureen Duffy-Lewis on Conquering the Tower of e-Discovery Babel: New Age Discovery for the 21st Century

Miranda Mowbray on The Fog over the Grimpen Mire: Cloud Computing and the Law

Herbert Zech on Nanotechnology – New Challenges for Patent Law?

plus conference reports and book reviews.

Congratulations to Wiebke, Shawn and everyone else at SCRIPTed for another excellent issue.

Amazon, Twitter, and the Gay Books Purge that Wasn't

A little bit of background: over the holiday weekend, news began to spread that Amazon had done something rather odd and disturbing with many, if not most, books that dealt with lesbian, gay, bisexual or transsexual themes. They hadn't been removed from sale, but their sales rank had been suppressed. As well as being a direct indicator of a book's popularity, this is a key factor in Amazon's automated book recommendation system, so a book without a sales rank is far less likely to be offered up to potential customers. I know a few authors, and their Amazon sales rankings are something they take a keen interest in. For Amazon to remove them for a whole category of books is naturally going to concern both the authors of those books and anyone interested in that category. And when that category is LGBT books... well, you can imagine that suspicions of Agendas, or Moral Panic, or even Censorship started to circulate.

And circulate they did, thanks to Twitter. April 2009 might well go down as the month that Twitter went mainstream, firstly with The Guardian's April Fool, and then with the Twitter '#AmazonFail' tag, by which Twitter users alerted to the issue could chose to follow comments and updates about it.

(Two points here. Firstly, this highlighted for many people the power of Twitter tagging as showing a use for what is often regarded as a rather trivial medium. A Twitter tag in effect allows users to get an instant paging service on a current topic in short, bize-size form that can easily be pushed to a phone or PDA. It's an excellent way of forming an instant community-of-interest, as this example showed. Secondly, I wonder if anyone will do a study into the way that 2009 has seen '[name]gate' as the label for a scandal be supplemented by '[issue]fail' as the instant term for a controversy, at least online?)

I won't dive into discussion or explanation as it has been done far better elsewhere. US editor and blogger Patrick Nielsen Hayden has made some sensible observations (and there are a few more in the comments to that post, admittedly amidst a lot of wibble). The Seattle Post-Intelligencer blog has what seems to be credible news from sources within Amazon on what happened. But most interesting to me are the comments from tech blogger (and long-term friend) Simon Bisson on what this tells us about Amazon's infrastructure.

And what it tells us may not be good news for Amazon, or indeed its shareholders. To quote Simon:

"The simple answer is Amazon's architecture. It's highly distributed, and there's no operations team. Each component (and over 200 go into a single page) is run by its development team, of four to five people. They are responsible for its features, its development - and for making sure it runs effectively."

We had a term for this when I was in the RAF: "Spring-Loaded", as in 'crammed full of cogs and springs that will explode in a shower of little bits of brass unless the lid is screwed down very tight'. Another term is "System of systems", popular as a cool-sounding buzzword but a phrase that should strike fear into the heart of anyone who understands that ten fragile things stacked up together are in fact likely to be more, not less, delicate than one fragile thing alone.

I don't think for a second this was an evil reactionary plot by Amazon to purge itself of LGBT publications or to appease the Religious Right. Whilst that, if true, would have been very bad for Amazon's reputation, I think the actual explanation may in the long run be even worse. If it turns out that such an embarrassing incident could have arisen from a single coding error, and that Amazon's infrastructure allowed the error to pass undetected, propagate around the world and then take days to fix, then it rather makes the world's best-known online ordering brand look like a massive house of cards. At the very least, it will be an object lesson both in scalability of architectures and in corporate image management in the age of Twitter.

I look forward to the e-Commerce conference papers with interest.

Patry on Copyright

No, not the six-volume epic, but rather the talk given last week in London by its author, Google's copyright counsel William Patry. As well as a comprehensive summary here - with replies to comments by Patry himself - the SCL has made the talk, together with introduction, questions and closing remarks - available for download.

I have not been shy in bemoaning the way that the digital rights dispute too often becomes a sterile shouting match between extreme positions on both sides; those who would make copyright all-encompassing and eternal against those who would do away with it altogether. I am keen to see evidence of any respectable middle ground and I think Patry lays it out very well. There is a good case for the rights of creators to be protected, but such protection must be evidence-based and economically justified. Otherwise, as Patry points out, we are at best in the realm of emotional arguments and at worst at risk of following the same ideology-breeds-policy route that has made such a mess of the global economy.

We need more articulate exponents of the middle ground. I've had to defend the very concept of intellectual property against well-meaning activists who assume that anyone connected with IP law must by definition be a copyright maximalist. This is no more true that assuming that anyone dealing with land law would advocate the banning of rights of way and other easements. Equally, not everyone who questions proposals to further extend the term of copyright is a wild-eyed IP abolitionist! Those of us who disagree with either extreme are not sitting on the fence; we're trying to take a sensible middle view. This does not mean that we imagine that we have easy solutions, for as Patry admits it will be difficult to resolve the issues arising from current IP law. But just because something is difficult does not mean that we should not attempt to think sensibly about it, or to ask that those who do make policy do so on the basis of evidence and debate, not emotion and rhetoric.

Apple DRM'ing Earphones? Maybe not.

Apple gained a lot of positive publicity a few months ago by removing Digital Rights Management (DRM) from iTunes music. However, there's a bit of a backlash in various online geek forums over claims that the new iPod Shuffle includes a chip that uses 'DRM' to ensure that only Apple-made (or perhaps Apple-approved) headphones work with it. To put this into context, the new Shuffle has all its controls on the headphones themselves, so ordinary headphones won't work with it.

But is this really 'DRM'? It turns out that manufacturers in the US have indeed put such compatibility chips into devices and then tried to use the Digital Millennium Copyright Act (DMCA) to attack competitors who sold compatible accessories without permission. A leading example was Lexmark v Static, where Lexmark used a chip in printer cartridges to ensure that they could not be refilled and resold. However, the US courts were not sympathetic to Lexmark's claim that bypassing such protection counted as illegal circumvention under the DMCA, noting that:

"We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case"

Is Apple trying to lock in sales of headphones? It would seem unlikely that it was ignorant of the Lexmark case, and other commentators have cast doubt on the 'DRM' analysis - see some of the comments at this post. 

All this applies to the US, of course. What about the EC or UK? It is hard to be sure without a more detailed legal analysis (which, sad to say, I'm a little busy for right now) but the English courts, and indeed the House of Lords, have not historically been sympathetic to attempts by original manufacturers to creatively use IP law in order to secure a monopoly in accessories and spares, most notably in Leyland v Armstrong where it was held that copyright law could not be interpreted so as to provide restrictions against spares suppliers that design law did not. Furthermore, any argument based on copyright in the chip software would presumably run into the 'emulation is not copying' decision in Navitaire v Easyjet and Nova v Mazooma. 

The moral: be careful of jumping to conclusions about supposed IP-related corporate evils. After all, there are enough real examples out there that it's hardly necessary to invent more...

Fair Dealing and Unfair Suppression

It has all been a bit quiet around here of late, thanks in most part to the distractions of the Bar Vocational Course. I’m thoroughly enjoying it, but a steady diet of opinion-writing, drafting of particulars and preparing for advocacy has rather absorbed my time of late. However, things certainly haven’t stood still in the IT law or IP worlds, and as the final stage of the course looms distantly into view it’s time to get the blogging jacket* on again.

(*A fictitious garment I imagine as being in some way akin to a smoking jacket; I welcome suggestions as to its attributes.)

Anyway, on to law. Fair use, or fair dealing as it is more properly called in the UK, has been in the news again in respect of a dispute between radio station LBC and Ben Goldacre, writer of the Bad Science column for The Guardian and author of the associated (very good) book. As recounted here Ben Goldacre took exception to a lengthy segment of LBC presenter Jeni Barnett’s show in which she uncritically trotted out just about every ridiculous and discredited claim about the alleged link between the MMR vaccine and autism. Now, when you disagree with what someone has written you can direct people to the original article and even TV and radio features are often available via iPlayer or similar ‘listen again’ services. But LBC does not, so it seems, make its programmes so available, and so in order to protect himself against accusations that he was ‘cherry-picking’ parts of the programme, Ben Goldacre posted an audio file of all 44 minutes of the discussion, out of a total of 3 hours of Jeni Barnett’s programme.

At which point, LBC’s lawyers threatened him with an action for copyright infringment.

Now, it’s not in dispute that LBC are the rightful owners of copyright in Jeni Barnett’s programme. Similarly, Mr Goldacre has clearly made available a copy of a significant part of that programme (almost a quarter of it). So his action was clear infringement – or was it?

Section 30 of the CDPA 1988 provides for fair dealing in copyright material for purposes of criticism, review or news reporting. Ben Goldacre’s comments on the MMR programme were certainly critical, but how much of the original material was he entitled to reproduce in order to criticise it? One common complaint about fair dealing laws is that they provide no hard-and-fast rule as to what comprises reasonable use, although given the enormous variety of circumstances such borrowing can take place in, it’s almost inevitable that it has to be assessed on a case-by-case basis. Rather, we have to look at judicial guidance from cases such as Hubbard v Vosper [1972] 2 QB 84, where it was held that in matters of significant public interest then there may be good justification for extensive reproduction, especially if that is the only way that the material in question can be exposed for analysis and comment. Furthermore, in Pro Sieben Media v Carlton [1999] 1 WLR 605 the Court of Appeal held that for matters of ongoing public concern any journalistic coverage, not just pure ‘news’, may comprise reporting for the purposes of s.30 fair dealing.

Under the circumstances, where Ben Goldacre had no text or copy of the MMR segment of the programme to refer readers to, where he reasonably sought to avoid accusations of selective quotation, and where he had serious and detailed critical comment on virtually every aspect of the material in question, it seems to me that he would have had a very strong case indeed for asserting fair dealing.

As noted in this OUT-LAW podcast on the subject though, we’ll never know as Ben Goldacre has taken down the recording on the basis that he cannot afford to test the issue in court. This is understandable but unfortunate, as it means we will have to wait either for someone to be in a position to defend a test case or for legislative clarification (and given that there has just been a round of reviews of copyright exemptions, I don’t expect another one any time soon). But LBC’s victory has been an extremely hollow one, for, as described here, this row brought more publicity to a matter LBC likely wanted buried than Ben Goldacre could ever have hoped to achieve if LBC had ignored the matter. Copies and transcripts of the item abound (go and have a look, unless you suffer from high blood pressure; this level of wilfully wrong-headed arrogant ignorance is breathtaking.) To quote Robert Walker LJ in the Pro Sieben case, “an author's remedy for malicious and unjustified criticism lies (if it lies anywhere) in the law of defamation, not copyright.” To which I would add that in today’s world of blogs, wikis and torrents, attempts to suppress criticism via copyright action are all too likely to rebound, as LBC has just found out.