article
Will copyright enforcement tip the scales over privacy rights?
23 July 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.
save to PDF