article
The Scales of Justice
27 June 2008
From telephone tapping by law enforcement agencies to the
publication of images of children of famous parents, the right to
privacy has long been seen as a right which has to be balanced
against other fundamental rights or legitimate interests.
Increasingly, a newer balancing act is being required between
the right to privacy and the enforcement rights of intellectual
property (“IP”) holders. The need for such a balancing act most
prominently comes to the fore in relation to the prevention of
illegal downloading or sharing of music and films; estimates of
lost revenues from these activities in the UK alone run into
billions of pounds annually.
Another area where privacy issues and IP rights come head to
head includes the on-going worldwide debate about domain name
registration systems and whether they should seek to protect the
personal information of domain name registrants from publicly
available search facilities.
As the digital age progresses, the means through which IP rights
can be infringed become more accessible and in many cases more
difficult to detect. It is in this environment that strenuous
efforts are being made across the world to strike a workable
balance between the rights of individuals to privacy and the rights
of IP rights holders to enforce their IP rights.
The right to privacy
An estimated 600 million people worldwide have access to the
Internet. Where technology provides a means of capturing,
reproducing and using information accessible over the Internet
users are rightly concerned about the standards of privacy and
security that they can expect. Is this concern, however, a
legitimate reason for withholding information about those
infringing IP rights?
The expectation of privacy is enshrined within Article 8 of the
European Convention on Human Rights (the Convention) which has been
incorporated into English law by the Human Rights Act 1998 (HRA).
The HRA creates a general right to respect for privacy where none
previously existed. Article 8 offers general protection for a
person’s private and family life, home and correspondence from
arbitrary interference by the State, but this is a qualified right.
The qualification is that interferences by the State can be
permissible, but they must be justified and must be (1) in
accordance with law (e.g. in accordance with a piece of legislation
or the rule of a professional body); and (2) in the interests of
the legitimate objectives identified in the Convention (including
for the prevention of crime and for the protection of the rights of
others); and (3) necessary in a democratic society; i.e.
proportionate, meaning proportionate in the light of the harm being
addressed.
The right to protection from invasion of privacy under the HRA
affects the activities of central government, local government and
other public bodies such as the police and the courts. This right
does not extend to being a general right to protection from
invasion of privacy by other individuals in society. However,
piecemeal common law and statutory protections (for example,
actions for harassment and breach of confidence, or under
Regulation of Investigatory Powers Act (2000) (“RIPA”) which allows
access to electronic data protected by encryption) together with
the general obligation on the courts to interpret statute where
possible in a way which is compatible with Convention rights does
go some way to protecting the privacy of individuals by other
individuals and companies in practice.
Protection of rights holders
On the other side of this balancing equation is the right of IP
rights holders to assert their exclusive control over the use of
their creative work by taking action against infringers. Copyright
action can only be taken where infringements can be detected and
where the infringers can be identified. It is here where the
tension between the two rights is at its most acute.
Copyright infringement and file sharing
Although file sharing is by no means a new concept, the
traditional technology limited the sharing to the circle of
computer users an individual knew and agreed to share files with.
The improvement of the technology by which file sharing can occur,
the development of advanced file sharing applications and the
increasingly widespread availability of broadband access, means
peer to peer file sharing networks have become extremely
popular.
File sharing enables users to share files, including copyright
works, amongst one another without the need for reference and more
importantly payment to the relevant rights holders. This uploading
of the copyright work is a restricted act; a copy is being used
without the IP rights holder’s permission. It also raises
infringement issues as it is may be a communication of a copyright
work to the public, a restricted act under s20 of the CDPA (as
amended) and which can constitute a criminal offence under s 107 of
the CDPA.
The above activity means that not only are IP rights holders
suffering damage from such infringement, they are also being
deprived of a potentially rich revenue stream by not being able to
exclusively control their work. Naturally right’s holders are
aggrieved by these developments and are increasingly looking for
ways to either capitalise on file sharing or methods to enforce
their rights and stop the file sharing taking place.
Without relevant information about the identity of infringers
the IP rights holder is powerless to stop the infringing activity.
IP rights holders believe they should be entitled to assistance in
putting the file sharers activities to an end by being permitted
access to identification information about those who are sharing
their works in this way. File sharers who are aware that what they
are doing is illegal should not be able to shield themselves with
privacy. From the rights holder’s perspective the file sharer is
someone who is engaging in illegal activity and as such has
forfeited its privacy rights and therefore should not be able to
hide behind those rights to thwart the IP holder’s right to prevent
work being exploited without its permission or being rewarded for
such exploitation.
The file sharer’s counter argument is that it should be allowed
to access content shared by others, particularly where such content
is not made available by the IP rights holder itself. Some file
sharers view file sharing as no different to format shifting the
copyright work themselves, such as recording television programmes
to watch at a later date.
The International dimension – preventing the
sharing
It is not only the UK that is struggling to strike a balance
between these two rights. In March of this year it was reported
that four major internet service providers (ISPs) in Japan have
signed up to a scheme to ban peer-to-peer network users who
illegally share files. Where the ISPs detect illegal downloading is
taking place users will first receive a warning and if they
continue with the downloads then their internet service will be
blocked.
The scheme looks set to work by copyright owners downloading
peer-to-peer software, searching for their content and gathering
the Internet protocol addresses of those participating in the
illegal downloading or file sharing. The rights owners will then
provide ISPs with the list of Internet addresses and ISPs will then
warn the infringers at those addresses.
Hence the scheme does not rely on the disclosure by ISPs of
private data but rather relies on the rights holders to detect when
an infringement is taking place and then ISPs to link up the
Internet protocol addresses with the private data on users they
have. The privacy of the user is maintained but their illegal
activities are stopped.
Closer to home, the British Phonographic Industry (“BPI”) and
Virgin Media (“Virgin”) have joined forces announcing a plan to
assist in dealing with the problem of illegal downloading of music
over the internet. Statistics show that more than six and a half
million people in the UK illegally access and distribute music, an
unacceptably high figure for the music industry. The BPI together
with Virgin have settled on an education programme which involves
letters being sent by Virgin and BPI to those Virgin customers
whose accounts have been identified by Virgin as having been used
to distribute music in breach of copyright. The letters will
provide practical advice on how to prevent misuse, links to
legitimate sources of on line music and will highlight the dangers
of downloading files from unauthorised sources. Naturally the
campaign has not been without its detractors, especially those
objecting to such a campaign on the grounds that this is merely the
thin end of the wedge which will eventually result in ISP’s
becoming more like modern day Big Brother. (The campaign, like the
Japanese scheme, has avoided breach of privacy issues because all
letters will be distributed by Virgin with no customer information
being provided directly to the BPI).
The ultimate goal of the BPI is to ask all ISP’s to operate a
three strikes policy aided by information supplied by the BPI
regarding illegal file sharers. Those who don’t heed the advice
being given and continue to share files may find their broadband
accounts suspended or even cancelled. Clearly for ISP’s such as
Virgin there is a vested interest because Virgin is also a content
provider that does not want to be inadvertently responsible through
its broadband network for facilitating the illegal access to
content it provides and wants people to pay for. A form of the
rights holder/enabler tension set out above. This dual role is not
lost on the illegal file sharers who point out that once ISPs begin
to align themselves with content industry then they are no longer
simply presenting themselves as a method by which to access and use
information but are tools being used to shut down an avenue of what
the file sharers see as free speech. Rights holders and industry
bodies such as the BPI by contrast see this education programme as
a useful addition to the other tools at their disposal to combat
theft of their rights such as adapting their business models to
suit the digital age and implementing digital rights management
tools.
Such schemes do not seek to invade users’ privacy by disclosing
private information but instead provide for rights holders to
monitor illegal activities and ISPs to take a proactive role in
prevention. One significant shortcoming is that they do not provide
for rights holders to be compensated for their losses. Another is
the ease with which an illegal downloader can simply set up an
account with another ISP. In order to address these issues ISPs
would need to share their information on the identity of wrong
doers – perhaps a step too far in the balancing act being
performed?
Digital rights management
Digital rights management technology presents its own
difficulties and is thrust into the rights versus privacy debate
when questions arise over the information being stored and accessed
by those controlling the technology. Similarly privacy issues arise
where information is gathered in lieu of a digital rights
management technology being used. This was the case with last
year’s launch by Apple of the iTunes Plus service. The service was
heralded as a breakthrough by offering music tracks for sale with
no digital rights management, which would allow iTunes tracks to be
played on other forms of MP3 players rather than just the iPod. The
user pays increased rates for such tracks but in return receives
more freedom in the way that it can use the tracks after purchase.
However it was discovered that personal data including names and
e-mail addresses of the purchaser were embedded into the tracks.
Technical expert opinions was that this and other embedded
information in the files used by Apple could be used to identify
the purchaser if the track was eventually found to have been
illegally shared. So far other rights holders have been reluctant
to relinquish the use of digital rights management technology, and
perhaps with good reason, given that it is estimated that 40 tracks
are digitally bootlegged for every legally downloaded track.
Judicial Assistance
IP rights holders are increasingly willing to bring pressure to
bear on ISPs to release information about illegal file sharers
through the Courts. However the approach of the courts will depend
on where the IP rights holder brings its case following the recent
clarification provided by the European Court of Justice in the
Telefonica case. (Productores de Musica de Espana (Promusicae) v
Telefonica de Espana SAU)
The Spanish Courts ordered the disclosure of subscriber
information to Promuiscae (a trade association of music producers)
about Telefonica customers who had been identified as illegal file
sharers. Telefonica objected on the basis that its obligation to
disclose this information was only enforceable in the context of
criminal proceedings not civil proceedings like those issued by
Promuiscuae.
The ECJ was asked to consider by the Spanish Court whether Spain
was entitled to have a rule preventing disclosure in civil cases
given that this appeared to go against the EU Directive protecting
copyright (Directive 2001/29 Copyright and related rights in the
information society).
The ECJ considered the IP rights holder versus privacy issue and
held that Spain was entitled to rely on its law to only oblige
access providers to disclose information about the file sharers in
criminal cases. However the ECJ’s judgment also means that Member
States are perfectly entitled to decide how the balance of the
rights are maintained and have a law requiring disclosure in civil
cases if it wishes, provided it can show that there is a balance
between the different fundamental rights of privacy and copyright
which are both protected in EU law.
This can be seen in the UK Courts’ approach to the release of
file sharers’ personal information by ISPs. The UK Courts have
ordered the disclosure of file sharer’s information, notably the
High Court required 10 ISPs including BT Tiscali and NTL to provide
the names addresses and other personal details of the alleged
file-sharers to Federation Against Software Theft (“FAST”). The
alleged file sharers were identified by a covert investigation
conducted by FAST which identified the suspects as having uploaded
software protected by copyright onto file sharing networks. The BPI
has also been successful in the UK Courts at obtaining disclosure
of file sharers information which it has subsequently been able to
use to take successful legal action against the file sharers
resulting in damages and costs being ordered against the filer
sharers in favour of the BPI.
Protecting privacy – a shield for IP rights holders as
well as infringers
IP rights holders are not always on the other side of the IP
rights enforcement versus privacy debate. A debate about the right
to privacy and the right of domain name holders to remain anonymous
has resulted in some Internet domain name registrars operating a
privacy service where they assign an alias to a domain name holder
or otherwise withhold the identity as restricted information which
is available on the publicly available WHOIS search facility whilst
the true identity of the registrant is maintained by the
registrar.
Just a few weeks ago the Canadian Internet Registration
Authority (CIRA) launched a new privacy policy and WHOIS domain
name search tool to protect the privacy of .ca domain name
registrants. The new policy limits public access to personal
information except under extraordinary circumstances or with the
explicit consent of the registrant. So the default position for
individuals is that personal information is automatically protected
as private; full registration information for corporate domain name
holders will remain automatically accessible. The policy does
however set out certain limited circumstances in which registrant
contact information may be disclosed and these include intellectual
property disputes (e.g. cyber squatting), threats to the Internet,
and identity theft. So, the debate is not simply a polarised one
about IP rights v privacy, since IP rights holders themselves can
look to privacy arguments to preserve their own identities.
Conclusion
The ever increasing capability of technology to monitor,
measure, detect and locate means that privacy issues will
increasingly materialise where IP rights are concerned.
Unless IP rights holders find a way of balancing their exclusive
right to control the use of their IP rights with individuals’
rights to and reasonable expectations of privacy, then the future
of enforcement, particularly copyright enforcement, looks set to be
a challenging one.
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