There are a lot of people posting here claiming their opinion as fact. This post started off as a reply to a specific post, but soon got 'a bit long' so decided to make it a general reply so that people could understand what, exactly, the law in this area is. I'd add now that I'm not a lawyer - I've a law degree and I'm currently studying for an IP law masters. Two of my current subjects cover this area (Intellectual Property Law and Computer Law), but I've also looked at this area in other ways throughout my degree. I don't claim to know everything on this area, but I'll only post what I can backup with statute and cases.
Existence of copyright
The first question that needs to be asked is whether there's any copyright in any of the items we're talking about. I think, here, it's clear that there's copyright in the audio-visual content under s 1(B) CDPA 1988. There is also possible copyright under s1(A), but 1(B) is good enough and there will lie the thrust of any infringement case. It is also clear that the links themselves are incapable of holding any copyright (under
Exxon Corporation v Exxon Insurance (1982)) and, even if they did, nobody cares about infringement there - and copyright would be held by the person who created the links themselves rather than FACT.
As part of a defense of his actions, it could be claimed that copyright does not exist in some of the televisual works under the dicta of
Hyde Park Residences Ltd v Yelland (2000). The case states that enforcement of copyright may be contrary to both the public interest and the right to freedom of expression (since HRA) in some cases - and thus effectively invalidates copyright in those instances. The instances mostly seem to be where the content is 'immoral, scandalous' or where the public have a right to know - such as if the prime minister went on tv and declared war on Iraq - there'd probably be no copyright on that footage. This is thus a narrow defense, but it could both use a lot of time up - so much that the CPS might just get fed up and give up - and would at least take the scale of the infringement (if any was found) down a little.
Infringement
We must now look to see if there has been any infringement.
Primary infringement
The first type of infringement to look at is primary infringement. This comes in a couple of types:
- Copying s(17(2))
- Making adaptations
- Issuing copies to the public s18(2)
These are all quite literal in their meaning. Copying is defined as 'reproducing the work in a material form'. Clearly there has been no reproduction of work by tvlinks. Making adaptations means different things depending on whether we're talking about software, databases or anything else. Here we can leave software and databases out of this and look merely at the definition for everything else - that is taking from the original copyrighted work and creating from it a work that still contains a substantial amount of the original. Here this is clearly not the case.
So that leaves us with issuing copies to the public. This is defined, under s18(2(a)) as 'putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the copyright owner'. Now, logically, tvlinks put nothing into circulation - the copies were already in circulation through the sites that contained the actual links. If there is already circulation through that source then to link to that source, or otherwise give further people access to that source is not 'putting into circulation' and, as such there is no infringement here. We have now reached the end of possible primary infringements without finding any infringements.
Secondary infringement
The next thing to look at is secondary infringements. Secondary infringements are different from primary infringements in that they require knowledge of infringement on behalf of the infringer. If tvlinks were never told that they were infringing, before being shut-down, there is thus a case that there has been no infringement. In this particular instance it may be possible to argue that knowledge was obvious, but certainly it is going against normal procedure for the copyright holder not to inform the infringer. Bearing that in mind, lets look at the possible types of secondary infringement:
- Dealing in infringing copies (s22)
- Providing articles for making infringing copies (s24)
- Facilitating infringement by transmission (s24(2))
- Circumvention of protection measures (s296 (as amended))
The list doesn't match up exactly with the act, but lists them more as substantive infringements.
Section 22 of CDPA defines dealing in infringing copies as 'imports into the UK, otherwise than for his own private and domestic use, an article which is, and which he knows or has reason to believe is, an infringing copy of the work'. It is true that when you download from one server to another, if the first server is based outside the UK then you are importing. Tvlinks, however, did not itself download any of the files - it merely linked to links to them. As such there has been no importation by tvlinks and thus no infringement under this ground.
Providing articles for making infringing copies is defined in s24(1) and is in relation to 'an article specifically designed or adapted for making copies of that work'. This is in reference to programs like DVDShrink and the likes. A link is incapable of being an 'article' and, as such there is no infringement under this ground.
Facilitating infringement by transmission is defined under s24(2) as 'transmit(ing) the work by means of a telephone system...knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission'. The only thing that tv-links was transmitting was links. As previous mentioned, the links are not subject to copyright control and, as such, there is no infringement upon this ground.
Circumvention of protection measures is defined under s296 CPDA and were amended by the Information Society Directive. It's a long section which is full of gray areas (with, IMHO, conflicting case law following it); though luckily there is no way this covers what tv-links were doing - it deals with removal of DRM.
Conclusion
So, we're finished with all the possible primary and secondary infringements and found nothing. Is it as simple as that? Unfortunately no. As the guy's been arrested we know at least one thing - whatever they think he's done wrong, they think it's a criminal offense. Now the only acts capable of
criminal liability are:
- Sale or hire
- importation (other than for private use)
- owning in the course of a business (with the intention to commit infringement)
- exhibits in public in the course of a business
- distributes in the course of a business
- distributing, not as a business, but to such an extent as to be prejudicial to the copyright owner
- performance with knowledge that doing so is infringing
- makes an item specifically designed for the purpose of infringement
Now this list sounds similar to a mix of the two lists we've looked at before and indeed there is some overlap. There are two key differences though, all require mens rea (you meant to do whatever it is you're doing), knowledge that what you're doing is infringing and, as it is criminal law, these must be proven beyond a reasonable doubt.
Instead of going through the whole list I'll jump straight to 'distributing, not as a business, but to such an extent as to be prejudicial to the copyright owner.' (my wording). Linking to copyright infringement could clearly be seen as distributing - by linking you are giving access to that material. In this specific case though, there are a couple of things that we need to deal with:
- knowledge
The question here is whether he had knowledge not only that said files were accessible from his website, but also that there was infringement. I think, in this case, it would be clear that he did because it would be obvious even to the casual observer. It's worth noting though that usually this must consist of the copyright owner informing the host that said files are infringing and then requesting there removal. I'm sure in this case that probably happened though.
- remoteness
For there to be a crime there has to be a causality link. For example if I shot you in the head, clearly I'm the cause of your death. If, however, I shot you in the hand and, on the way to hospital, the ambulance was in an accident, in which you received substantial injuries, only to get to hospital an hour later where you received negligent care resulting in your death - then the cause of death cannot properly be seen to be me shooting you in the hand (the chain of causality has been broken). That's an extreme example. Here we have a person linking only to a link to a link which allows the download. IMHO that's too remote for there to be any criminal liability - this would probably be mootable in some sort of way though.
I discussed this last point with my Copyright lecturer, who believes that he would have been done for 'assisting' in the offence. What, exactly he meant by this I didn't have time to find out (I asked quickly during a break) so there may be conspiracy or incitement - I'll do some more research and then update this section. I'm also planning on checking to see if there's anything in Blackstones later on so will update with that. Either way my lecturer said that it's a bit of a gray area at the moment because there haven't really been any cases on it - so I think we're looking at a test case here.
The Counter Claim
If I was the operator of tv-links, at the moment I'd be thinking about bringing a claim under s253 CDPA. This provides a remedy for groundless threats of infringement of copyright. I'd suggest this for two reasons. Firstly, it'd get the issue of whether the site was doing right or wrong finally solved and thus there would be no chance of repeated action being taken against the site. Secondly, if he wins, it'll be embarrassing for FACT and create a free mandate for other sites, like his, to be created within the UK. Thirdly, he'd get some cash out of it.
LINKS
Gowers Report (quite insightful in this area, but also very long and not cutting edge anymore)
Copyright, Designs and Patents Act 1988 (with, I think, all the amendments)
Exxon and Hyde Park Residences are both available on westlaw and lexisnexis (just search for the case name)
M Spence & T Endacott, "Vagueness in the scope of copyright" [2005] LQR 657 (available on lexisnexis)
R Burrell & A Coleman, Copryight Exceptions: the Digital Impact (CUP, 2005) (westlaw)
Hope that clears stuff up for some people. Oh, and congrats for reading this far.
EDIT: In response to the 'reg article, I'm pretty surprised. To be honest I just don't see any charges sticking if they continue down that route - it's nonsensical! This would require trademark law to take a leap towards copyright law - something that the courts have continuously refused to do. I fully expect the charge to change to one based on copyright before any case actually starts.
