[AlexanderHanff]

Originally Posted by amateria

Alexander,

Can I suggest adding copyright infringement to the list (if you haven't already). A good overview of statute law is at

http://www.jisclegal.ac.uk/ipr/IntellectualProperty.htm

but this does not really explain the relationship of copyright to electronic media. Your library may have Laddie, Prescott & Vittoria, or Copinger and Skone James, which are the main practitioners legal textbooks on copyright.

I hope the following is also useful:

Computer programs are "literary works" in the terms of the Copyright, Designs and Patents Acts 1988 (CDPA) and computer screens, such as those displayed on websites, are liable to be "artistic works" in accordance with the CDPA.

Literary and artistic works are protected by copyright if they have sufficient originality and complexity. (In practice, most things that have had more than a few minutes work put into them will be protected by copyright.)

There is no need to register copyright: it arises automatically as soon as a non-trivial, original work has been created. The author of the work can license others to reproduce the work in an unlimited way, can forbid all reproduction or can specify limited circumstances in which reproduction is be permitted. The author may transfer his interest in the rights to another. The new owner of the rights can then specify the terms on which reproduction will be allowed.

Any unlicensed reproduction of a copyright work is a criminal offence, punishable by imprisonment, and potentially gives rise to entitlement on the part of the owner of the rights to apply in the High Court for an injunction to prevent any further infringement and can sue for damages and/or an "account of profits" (payment to the victim of the profit that the infringer has made from the infringing act).

In the case of copyright works in electronic form, reproduction occurs when (among other things) the work or a significant part of it is copied into transient computer memory, stored on disk in virtual memory or stored more permanently on disk or any similar medium. This point is the basis of all software licensing: even to execute a program, it is necessary to have a licence in order to avoid civil and criminal liability for the reproduction of the program code transiently in computer memory.

The ISP effects a reproduction when it directs streams of data through its computer systems as a necessary part of its service. In order to do this lawfully, the ISP must have a licence to reproduce any copyright works. Is this reproduction lawful? If it is licensed, then it is. If unlicensed, the reproduction is unlawful. The licence may be express or implied.

The concept of implied licences makes not much sense in RIPA terms, but perfect sense in the context of copyright. If you publish a website, open to the world, then in the absence of any express terms there is an implied licence for end users and ISPs to reproduce the copyright material - as it a necessary part of the process of access and delivery. If the user has to register, accept terms and conditions and use a password (perhaps even pay) to access parts of the website, then reproduction of those parts of the website without complying with the registration etc. requirements is almost certainly an infringing act - unless you are the ISP, who has an implied licence to direct and transmit data streams to the duly registered user.

Many websites have express licences in the published terms and conditions: these specify the terms and scope of the copyright licence to reproduce the materials that comprise the website.

Is the further reproduction by the ISP for the purposes of Phorm's analysis lawful? It's difficult for me to see an argument that by publishing a website, an implied licence is given to Phorm or its partners to reproduce in order extract commercial value from the copyright material: this does not arise by necessary implication as a part of the directing of traffic. And, as many posters have pointed out, there are express licence terms on many large, commercial websites, which would not permit the reproduction envisaged by Phorm and its ISP partners.

It seems to me that a website publisher would be able to apply to the court for an injunction to prevent Phorm from infringing the website owner's copyright. After the event, I do not see why in principle a copyright owner should not seek to obtain damages or an account of profits from the ISP and/or Phorm that they have made as a result of their infringing acts.

All that's stopping rights owners is the cost - which would of course be very substantial. This is the problem with rights: they are expensive to enforce.


Keep up the good work,

Hi and thanks for the post. I actually know a great deal about copyright law (which is understandable if you google my full name hehehe) and yes there is an argument via copyright and case law to back it up (google and archive.org are just 2 organisations which have fallen foul of copyright judgements as a result of caching) however there is precious little case law in the UK on this front.

If you have explicit terms on your web site denying consent then obviously copyright becomes a much stronger argument. I have to say I don't actually agree with some comments I have seen from people claiming that their web activities are copyrighted as they are not actually "works" they are interactions/actions so I am not convinced the customer has any argument regards copyright. It could be argued that someone editing their blog, or creating other types of content (over a non-encrypted link) falls under copyright but Phorm are arguing that they don't profile POST data.

Of course during discovery you could ask the court to force Phorm to provide the hardware and source code for inspection to prove that they are not processing POST data but this would be very expensive and the Judge might refuse the request on the grounds of "Trade Secrets".

I am steering clear of the copyright aspects at the moment, I may include something at a later date though.

Incidentally are you a law student/graduate? I ask because that was one of the best explanations of copyright I have seen on a non legal forum, so if you are not qualified or studying law then I take my hat off to you for taking the time to research it so thoroughly.

Another point though is this, if we are assuming no implied consent from web sites (or explicit terms denying consent) then I think RIPA is the stronger legislation to use in court simple because it is criminal. Whereas Copyright Infringement can be criminal if it occurs for commercial gain or profit it is more often than not a civil matter. The injunction is a good idea and one I already expressed last week, although I was looking at a High Court injunction under RIPA based on the consent angle as opposed to an Injunction under Copyright Law (which would also be using the consent argument).

It is an interesting debate though. With Intellectual Property being the litigant's favourite target at the moment and with harsher penalties being lobbied for (even an attempt to change infringement from civil to criminal offences) it could be that copyright law might be seen as a more serious issue than RIPA in the eyes of the Judge (which is actually really a scary thought because I can't think of anything more serious than unlawful interception in my mind).

Anyway I am probably waffling because I have been up all night and all day so forgive me if I am, and again thanks for the post

Alexander Hanff