Intellectual Property: Rights of an Information Society Service Provider - Coursework Example

Intellectual Property Intellectual property Introduction An owner of a copyright or the owner’s licensee of such a copyright, claiming that copyright has been or is being violated, has various remedies under the law. The person can seek an injunction against the alleged violator.1 Before one can get an injunction, one must satisfy certain well known principles of law. However, an injunction unprocedural granted may be set aside due to the inconveniencing nature of injunctive order to the alleged violator.2 In the case at hand, an injunction was sought against the information service provider( the provider) prohibiting it from allowing from allowing customers to access the copyright protected materials without the consent of the copyright holder, a prohibition against the provider not to give access to customers of the website with the materials in issue. Further that the provider to prohibit access of customer to any such website it might be aware of that contains that would allow infringement of the copyright. This paper is a critical discussion of whether an injunction as the one above is not only in conflict with the rights of an Information Society Service Provider, but is also against legitimate rights of customers of such an Information Society Service Provider. This paper will analyse various cases in light of the above statement of violation of rights of the provider and the legitimate expectations of the customers of the provider on getting access to information. These paper attempts or rather answers two maintain questions. The first question is whether the provider has any rights and whether the broad prohibitory orders violate those rights. The second question is whether the customers of the provider have legitimate expectations to access all the information in the website of the provider. However, I will begin by looking at the legal framework for injunctions meant for blocking for websites. Case law from both United Kingdom and European Union Court of Justice decisions will be analyzed in an attempt to answer the two main questions. However, it is important that the legal framework regarding the protection of copyrights. Copyright, Patents and Designs Act The Act provides for the thing that would amount to infringement of rights of the copyright holder. These activities include copying, renting and lending to the public, issuing of copies to the public, playing or showing in public or making an adaptation of a work that has copyright.3 The Act also provides for the remedies available to a copyright holder in the event of infringement.4 Most importantly for the purposes of this paper is the injunctive order provided under s 97A of this Act. Directive on Electronic Commerce This directive5 provide for the protection the protection of the any internet service providers who only provide the services of hosting, caching or a conduit for any information that may be protected by copyright.6 The directive provides that the service provider is not required to monitor all activity happening in its website.7 The internet service provider may not be held liable for any illegal activities taking place in the website without its knowledge. The member states of the European Union may make legislations providing for reporting obligations of the internet service provider to report any illegal activity occurring in its website to the relevant authorities.8 Directive 2001/29/EC of the European Parliament and of the Council One of the objectives of the directive is to ensure that copyright holders are capable of are getting remedies amongst them injunction against any infringement of their work.9 The directive also provides that the remedies obtaining by way of legislation must be proportionate, effective, and dissuasive.10 Charter on Fundamental Rights of the European Union The charter contains rights and freedoms that human beings in European community are supposed to enjoy. There are rights that are associated with copyright protection, also for the persons doing business where copyright would involved. That would include internet service providers and the users of internet. There is the right to receive information that would be associated the internet users.11 There is protection of right to hold intellectual property12 and further there is right to do business within the laws of the community.13 The above legal framework is important in assessing the main questions in this paper. The four legal frameworks will be assessed in the cases that will be discussed in this paper. Blocking Injunctions A copy right holder may seek a blocking injunction against an intermediary in the form of information service provider who supplies information knowing that the information will be or is being used to infringe copyright.14 This legislation is an attempt to comply with the provisions of the European Union directive meant to protect the copyright holders.15 Therefore this provisions of law having force in United Kingdom provides a clear framework through which court seeking to determine the propriety of blocking injunction in a set of fact may rely on. There are cases that have been filed against third party service providers. Scarlet Extended SA v. SABAM This case16 was brought by SABATAM on behalf of its members arguing Scarlet was allowing it customers to down and share copyrighted work without them paying royalties and without authorisation of SABATAM. Scarlet was not however a downloading or sharing site. An action for declaration of infringement of copyright and blocking of the access of the copyright material was made. The court in Brussels granted the orders sought but scarlet appealed. A two front argument was advanced. First, the blocking of website was a violation of rights of Scarlet to do business. Secondly that the blocking would lead to limitation of access to information contacted to the rights guaranteed under European Union Charter for Human Rights. The case also involved interpretation of E-Commerce Directive17 that prohibit members states from imposing a monitoring obligation on internet service provider who acts as a conduit, a host or cache of materials. However the state may make it an obligation on the service provider to report to the relevant authority of any illegal access of materials that have copyrights. Court of Justice of European Union agreed with both the argument. The court held that requiring Scarlet to install a complicated and expensive computer system to filter the material being accessed would make the process of intellectual property protection unnecessarily expensive. It continued to say that such an injunction would be contrary to the required balance between the right to trade by the internet service provider and a copyright holder. On the violation of rights of access to information for internet users, the court held that the proposed installation of filtering system had capacity not distinguish the access of lawful content and unlawful content. This would act as a violation of right to access to information. The prohibitory orders against the internet service provider in the case at hand looked against the decision in the case of Scarlet v Sabatam show that the Internet service provider can establish a case of violation of its right to engage in trading activity. A case for violation of legitimate expectation of the internet users to access to the required information can also be made. However, this decision is not sweet music to the ears of the copyright holder. This decision had followed an earlier decision of the European Court of justice known as Promusicae v Telefonica.18 In this case, Promusicae sued Telefonica arguing that its website allowed file sharing to its customers of music that was protected by copyright. Promusicae wanted to be provided with IP addresses of the subscribers of Telefonica. The court rejected the prayer for the IP addresses arguing that was personal information which would amount to violation of right to privacy. This case also insisted on the right of an internet service to do business and not to be required to carry out filtering of content that is accessible to the subscribers. The Sabatam v Scarlet was followed by another case by Sabam against an internet service provider known as Netlog.19 The case is almost similar and insisted on the right of the internet subscriber to engage in business and not to police its subscribers. The effect of these decision is that there is uneasiness among the copyright holder and will serve to increase lobbying to amend the European Union directive and hence the jurisprudence regarding limiting the responsibility of internet service provider.20 This decision have also been said not to have been elaborate when it came to the violation of right of subscribers and seems obsessed with the protection of rights of the internet service providers to do business.21 These cases seem to be in contrast with the case of UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH22 with regard to the finding of blocking of the website despite all of them emanating from the European Court of Justice. However the case does not address the rights of the subscribers in the best way possible if at all. This case23 alleged violation of copyrights by Constantin Film Verleih and GmBH against UPC. They complainants sought an injunction and blocking of the website of UPC that allowed downloading the films and streaming without the authorisation of the complainants. TUPC were ordered to take all reasonable measure to block access of the websites. UPC was dissatisfied by the decision and appealed. The issue was referred to European Union Court of Justice. It was argued that the blocking amounted to violation of rights of UPC to trade, and access to information in the internet by internet users. The court held that there was no violation of fundamental right of UPC to trade as they would still conduct their trade and could avoid liability of violation of infringement of copyright if they took reasonable measure to prevent access to illegal content (content that was not authorised by the copyright holder). However, the court did not decide the question of whether there was a violation of rights of the users of internet access to information. However, it held that it was the duty of any intermediary to ensure that internet users’ right access to information was not unreasonably curtailed. In the case at hand, the question is whether the right of the information service provider has been violated. Rights of the service provider cannot be said to have been violated at all. The prohibitory injunction was meant to block access of the offending copyright materials. On the issue that the court did not address in UPC case, the internet users can only argue they have been denied access to information in the internet if the copyright holder were to authorise access but the intermediary withhold or block access unnecessarily. However, the decision of the court in UPC case to leave the question of whether internet users’ rights were violated by limiting their access to information can be faulted. The court shirked its responsibility and put the copyright holder economic rights at risk by leaving it to reasonability of the intermediary decision and due diligence. The court ought to have seized the moment to declare rights or refuse to declare right of access of information to internet users on one hand and those of copy right holder on the other hand. It was also not right by putting a reasonable standard of care to the intermediary. The standard ought to be certain and determinable to allow the copyright holder to make easy and straightforward claims for infringement. These decisions have been heralded as an important milestone in trying to strike a balance of rights of the three. However, there is still lack of clarity on the burden placed on the internet service providers and the role of copyright holder.24 Further the concept of knowledge of infringement so as to attach liability to the internet service provider has been seen as almost granting immunity to the service providers. Thus a balancing act, though hard to define and far from being clear-cut and hand to come by is important.25 It is important that national legislation to come up with the so called balancing act and define the roles of each in protecting copyright. A case law would also be important in absence of legislation. There is therefore the need of the court to take the challenge head on and come up with a definite answer to the balancing act. There are various arguments that have been advanced to hold the internet provider liable. First, it has been argued it difficult to find and identify the violators of the copyright and the internet service provider is therefore an easy target as the provider is easily identifiable.26 Secondly, internet service provider have the resources to pay the damages unlike the real violator could have little or no financial wherewithal and thirdly, the internet service provider is the most strategically positioned and placed to avoid violation of copyright.27 However, there are arguments that internet service providers ought not to be held liable for copyright violation. First, the providers are mere conduit and are not active in any violation. Secondly, the it would be unreasonable to expect the provider to screen the information being accessed in its website and thirdly, it would stagnate growth and development of internet.28 There is also the case of L’Oreal SA v eBay International AG29 which deal with violation of trademark through the eBay website. The European court of justice opined that a blocking injunction would be granted in appropriate cases where the internet service provider had an active role in facilitating the infringement of trademarks by its customers. The court also emphasise that in granting of remedies against an internet service provider, there is need to balance the rights of all those involved; that is the trademark holder, the service provide and the customers.30 It has been argued that this decision is important as it enhanced the accountability of internet service provider by holding they can be liable for violation of trademark if they do any positive steps towards facilitating violation of trademarks.31 Unlike the other cases where it was seen as the violation of right to do business, this case emphasises the importance of protection of trademark holder. Whereas the European court of justice seems to want to protect the rights of the intermediaries in the form of internet providers, the courts in the individual countries seems to uphold the rights of the copyright holder and can be said to disregard the fundamental rights of engaging in business for the internet subscribers. The decisions do not seem to talk of the subscribers in any way. Some of the cases granting blocking injunction orders are examine here below. Some of the cases involve the blocking of website that allowed people to infringe upon trademarks. Though trademark cases, they are important to the extent that they address the issue of blocking injunctions. Twentieth Century Fox (and others) v Newzbin2 This case32 involved Newzbin an information provider. In their website they allowed free and premium members. The premium members were able to access the large films at very low rates. Some of the films accessed were copyright protected and therefore it amounted to violation of copyright by those accessing the films. The plaintiff sued and sought an injunction under s 97A of the copyrights, Designs and Patent Act.33 The court granted an injunction requiring the defendant to filter the films in its database and remove all the films that were infringing on its website. The defendant had argued that it was not aware of the downloading of the films. It also argued that it was just an intermediary who provided the public with links through which the plaintiffs’ films could be downloaded. The prayer for an injunction to block the entire website was rejected. This case a clear case that an injunction blocking a website can be granted by the High Court if it shown that the service provider is aware that violation of copyright is being made. This is case has been argued to have created an obligation to an internet service provider to assist ensuring that there is no infringement of copy right of the website.34 However the court did not state the measure or give an example of such measures. The internet service provider is therefore left in state of limbo and can easily be caught up in the web of uncertain jurisprudence. It would be the internet service provider to prove that it has taken reasonable measure to ensure there is no infringement. In this case, the issue of whether the blocking injunction was a violation of rights of Newzbin to do business and the right of internet users to access information was not raised in the High Court. However, it can be argued from the order that the service provider cannot be heard to claim that its right to disseminate information has been infringed in any way. It was not authorised by the copyright holder to allow access of the information. The long run of the decision and the infringement finding made Newzbin to run into administration and thereafter close of the websites. It could be argued that there was a great need to strike balance and not to make an absolute finding of liability just because Newzbin was hosting and provided a platform for infringement. 35The customers of the information service provider cannot also be heard to complain about the legitimate expectation. This is for simple reason that legitimate expectation cannot arise out of an illegality. Further the copyright holder is not a public body.36 The remedy of blocking has been argued not to be efficacious as the information been protected may still be accessed through proxy.37 If this argument is correct, then blocking ought not to be given as a remedy as it would be in vain. In the second Newzbin case The issue of proportionality of the orders sought and remedies was in issue. If the complainants were to be ordered to provide the infringing URL was said to be unproportional when it comes to the implementation of the complimentary approach of protecting copyright. The court therefore refused to grant the remedy proposed by the defendant. The case of Cartier International AG and Others v BskyB and Others38 the issue before the court were mainly whether a blocking order would amount to violation of right to do business by the internet service providers provided under Art 16 of the Charter of European. It was argued that legislation could limit this rights as provided under Art 52 of the charter. The Court found that there was legislation as s 97A of the Copyrights, Designs and Trademarks act provided for orders that could reasonably be interpreted to mean that the right to do business was limited. This case is therefore important and its application on the issue by the Information service provider is concerned. The right can be limited effectively by legislation and by dint of s 97A of that act; the right to do business is limited to the extent that it does not lead to infringement of intellectual property. The same could be said of the internet users and their claim for right to information.39 It can be argued that their right to access information is subject to protection of intellectual property and orders that may be issued under s 97A of the Act.40 Copyright has been argued to be a valid restriction of right to access to information.41 Be that as it may, copyright protection ought to be balanced with right to information and non derogation of copyright ought not to be the rule.42 In other countries, there have been cases that have dealt with the same issue of website blocking. In Sweden, The Pirate Bay Case43 stands tall. It was fully based on the Swedish aw and did not take into account any of European Directives on copyright or e-Commerce. It involved infringement of copyrights with impunity and with the knowledge of the website holder. When requested to pull down the copyrighted materials from its website, it gave ridiculous responses which were tainted with complicity in violation. The website of Pirate Bay maintained torrent files that could be accesses freely by users without any restriction. The prosecutors in this preferred charges against the Pirate bay for preparation to breach and abetting and aiding in violation of copyright protected under Copyright Act. The court found that The Pirate Bay had provided a website where users could prepare and share files, a website that had a high search facility and with easy and downloading facilities and therefore was found liable. The court ordered blocking but the website was not blocking. The case is a unique and on that blocking would be an available order. First, it was axiomatic that The Pirate Bay knew that there the website was being used as an infringement site. Secondly, they provided the users with the technology that supported violation of copyright. Looked from the facts of the pirate bay case, the issue in hand could be distinguishable. If it is a case of violation and facilitation of violation with impunity, then the order cannot be said to be a violation of rights. Conclusion Conclusively, the above legal framework and the case law arising from both the United Kingdom and the European Court of Justice has been analysed and the two main issues can be addressed. Firsts, is the question of violation of rights of the information Society Provider. The right to engage in business is protected in the charter. However, the information provider may have to move the European Court of justice by use of jurisprudence in Satabam cases and Promusicae v Telefonica where the court argued that the prohibitory order and website blocking would amount to violation of its right to do business. However, a case in the High Court in the United Kingdom may not be successful due to the jurisprudence in the case of Twentieth Century Fox (and others) v Newzbin, where a website containing offending was ordered to be blocked. It is important to note that if the prohibitory order would require the information provider to monitor the website, it would be wrong. On the issue of legitimate expectation of the internet users to access information, the right is not absolute though recognised under the charter for human rights. Any order unreasonably limiting their right of access to information would be violation of their legitimate expectations. Bibliography Bently, Sherman, Intellectual property law, third edition. Oxford: Oxford University Press. Cartier International AG and Others v BskyB and Others [2014] EWHC 3354 Charter on Fundamental Rights of the European Union 2000/C 364/01 Copyright, Patents and Designs Act of 1998. Derclaye. E, The Legal Protection of Databases: A Comparative Analysis Edward Elgon Publishing Ltd, Cheltenham, UK (2008) Directive 2000/31/EC of the European Parliament and of the Council Directive 2001/29/EC of the European Parliament and of the Council Hinze.G, European Court of Justice: Social Networks cannot be Forced Monitor and Filter to Prevent Copyright Infringement, Electronic Frontier Foundation. Accessed :< https://www.eff.org/ deep links/2012/02/eu-court-justice-social-networks>on 16.12.2014. Griffiths. J et al, ‘Intellectual Property, Unfair Competition, and Publicity. Edward Elgon Publishing Ltd, Cheltenham, UK (2014). Kulk.S and Borgesius, ‘Filtering for Copyright Enforcement in Europe after the Sabatam cases, European Journal of Intellectual Property (2013). L’Oreal SA v eBay International AG C-324/09 Mishra. P and Dutta. A, ‘ Striking a Balance between Liability of Internet Service Providers and Protection of Copyright over Internet: A need of the Hour,’ Journal of Intellectual Property Right (2009). Netlog v Sabatam C‑360/10 Promusicae v Telefonica C‑275/06. Raymond. H, ‘Intermediaries Precarious Balance within Europe: Oddly Placed Cooperative Burden in the Internet world, north western Journal of Technology and Intellectual Property (2013) Raymond. H, ‘Intermediaries Precarious Balance within Europe: Oddly Placed Cooperative Burden in the Internet world, North Western Journal of Technology and Intellectual Property (2013) Scarlet Extended SA v. SABAM C 70/10 Stamatondi. I, Copyright Enforcement and the Internet. Kluver Law international, Netherlands (2010). Talagala. C, ‘The Scope of the Doctrine of Legitimate Expectation as Ground of Judicial Review of Administrative actions; Bar Association Law Journal (2009) The Pirate Bay Case Stockholm District Court, Docket no. B 13301-06 (2009). Twentieth Century Fox (and others) v Newzbin EWHC 608 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH C-314/12. Read More