Digital Copyright

Law and Practice

Simon Stokes

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509917310
• Edition: 1
• Topic: Law
• Subtopic: Copyright Law
• Index: Law

The first edition of this book in 2002 was the first UK text to examine digital copyright together with related areas such as performers' rights, moral rights, database rights and competition law as a subject in its own right. Now in its fifth edition, the book has been substantially updated and revised to take account of legal and policy developments in copyright law and related areas, the new UK copyright exceptions, recent CJEU cases, the regulation of Collective Management Organisations, orphan works, and developments in EU copyright legislation and the EU's Digital Single Market Strategy. It also contains new sections on big data and data mining, the impact of artificial intelligence and blockchain on copyright, and the future for UK copyright after Brexit. The book helps put digital copyright law and policy into perspective and provides practical guidance for those creating or exploiting digital content or technology, whether in academia, the software, information, publishing and creative industries, or other areas of the economy. The focus of Digital Copyright is on the specifics of the law in this area together with practical aspects. Both academics and practitioners will find the book an invaluable guide to this ever-expanding field of law. Review of Previous Edition:
'Overall, Digital Copyright is well worth the relatively modest price for a book that will be stimulating for anyone who has to think about copyright in the digital realm.'
Francis Davey, Journal of Intellectual Property Law and Practice

1

Why Digital Copyright Matters

1.1.Overview of this Book

Copyright is the property right the law gives authors/creators and those taking ownership from them to control the copying and other forms of exploitation of their creations or ‘works’. The traditional view is that copyright arose out of lobbying by printers to prevent the piracy of their books. So in one sense it was a response by vested economic interests to the growth of a new technology. The first UK copyright statute dates back to 1709. The current statute, the Copyright, Designs and Patents Act (CDPA), dates from 1988. A lot may have changed in over 300 years but it remains the case that those who exploit their creativity (or that of others) continue to use copyright to fight a battle against piracy and the pirates become ever more sophisticated in their approach. Digitisation is yet another new technology copyright is coming to terms with. The most significant recent legislative development was the adoption in Europe of the so-called Information Society Directive¹ in May 2001 and its implementation into UK law by the Copyright and Related Rights Regulations 2003.²

This book argues that digitisation continues to pose fundamental challenges to copyright which have only been partially addressed by the 2003 Regulations, important though these are, although as noted case law continues to develop and there is now further legislation in this area arising from recent UK and EU consultations and initiatives. The book’s aim is to help educate rights owners, users, and their lawyers about these challenges so that they can better protect and exploit their copyrights. Other texts tend to focus on all aspects of copyright, or deal only with specific digital rights or works such as software, databases and so on. This book treats digital copyright law as a subject in its own right. The basic rules of the game may be derived from the real, analogue world. Yet how those rules are applied and what businesses and their lawyers do with the proliferation of additional rules to address digitisation will determine in part the success of the digital economy. It focuses on the private rather than the public sector although in most cases the rules will be the same.³ If this book helps creators, businesses and their lawyers through the maze of digital copyright it will have served its purpose.

The focus is on copyright and related rights such as database rights which protect digital content. The book does not deal with non-digital copyright matters such as design rights and the protection of semiconductor chip designs by topography rights. The perspective taken is that of Anglo-American copyright rather than of continental ‘author’s rights’ prevalent say in France or Germany. However author’s rights are discussed in the context of moral rights and the development of the copyright jurisprudence of the CJEU.⁴

1.1.1.This Chapter and the Book

This chapter looks at why copyright remains important, the challenges posed by digitisation and the history of legislation relevant to digital copyright. Later chapters look in more detail at the legal rules underpinning digital copyright, the constraints on how these rights can be exercised and four very important digital copyright-based industries: databases, software, e-commerce and e-publishing (including data and content more generally). The book concludes with practical advice on how to protect, manage and exploit digital copyright assets across a range of industries.

1.2.Copyright: Its Scope and Rationale

1.2.1.Why Have Copyright?

Most of us take copyright for granted. We may choose to ignore it when we photocopy materials, duplicate software or perform works protected by copyright. But when pressed, most lawyers and business people would at least acknowledge that the law ought to grant authors property rights in their works. Surely authors should have the right to prevent the ‘theft’ of their works and their creativity ought to be rewarded?

1.2.2.The Case Against Copyright and Copyright Reform

Some argue that copyright ought not to exist or at least it should be severely limited in its application. The ‘open source’ or ‘copyleft’ movement discussed later in this book is one example of this. We all stand on the shoulders of giants – if all copying were outlawed how would society advance? A novel or a painting is self-evidently not the same as a piece of real property, to be subject to access and possession to the exclusion of all others. Once made available to the public surely all products of the human intellect should be available to everyone for their use, edification and enjoyment? The great US jurist and Supreme Court Justice Louis Brandeis memorably argued against the privatisation of knowledge and for an ‘intellectual commons’ in the landmark US case International News Service v Associated Press⁵: ‘[t]he general rule of law is, that the noblest of human productions – knowledge, truths ascertained, conceptions, and ideas – become, after voluntary communication to others, free as the air to common use’.

Concerns have been raised in certain quarters that the effect of strengthening copyright law in recent years to address the digital agenda will be to seriously and unjustifiably restrict the dissemination of speech, information, learning and culture while not providing any decisive incentives to the creator.⁶ One recent commentator has noted that ‘[t]he current copyright system makes no one happy’.⁷ On this analysis copyright law needs to be reassessed in light of its premises and pared back to a right of much more limited scope and duration.

Such a wholesale reassessment of copyright law is in the author’s view unlikely, at least in the short to medium term, looking at EU and UK developments since 2001 where the focus has been to consider and implement new copyright exceptions and to address specific issues such as orphan works and the collective management of copyright. Having said that, at the EU level the European Commission’s recent Digital Single Market Strategy looks to one single European copyright law but this is clearly a future rather than a current EU objective.⁸ Indeed there has been increasing concern that the territorial protection which national copyrights give conflicts with the ‘digital single market’ and this had led to action at the EU level to prevent geo-blocking and allow the cross-border portability of online content.⁹

So it is clear that in recent years the European Commission has taken a more interventionist role in copyright policy promoting a number of new initiatives following on from the 2011 Green Paper on the online distribution of audiovisual works (13.07.2011) and the EU’s IPR Strategy¹⁰ culminating in the 2015 Digital Single Market Strategy¹¹ which resulted in a package of copyright reforms discussed later in this book, including a proposed Directive on copyright in the Digital Single Market.¹²

Looking at the UK, on 6 December 2006 the UK Treasury under the Labour Government published the findings of the Gowers Review, a review of the UK intellectual property (IP) system, and certain recommendations were made which, if followed up, would have made limited changes to UK copyright law.¹³ Then the Hargreaves Review of Intellectual Property and Growth reported in May 2011.¹⁴ The Government acted on the Hargreaves Review – the Enterprise and Regulatory Reform Act 2013¹⁵ enabled the Secretary of State, by regulations, to introduce schemes to allow lawful use of orphan works and extended collective licensing by collecting societies under appropriate conditions, and to regulate collecting societies through codes of practice. Other actions following the Hargreaves Review included steps to establish a Digital Copyright Exchange (now called a ‘Copyright Hub’) under Richard Hooper,¹⁶ to expand the exceptions under UK copyright law and to introduce a new non-statutory system to help clarify copyright law by Copyright Notices issued by the Intellectual Property Office (IPO).¹⁷

1.2.3.Limits on Copyright

In any event, whatever the criticisms of the copyright system, copyright does not protect ideas as such. The courts have developed the so-called ‘idea/expression’ dichotomy to help set the boundary between what is in the ‘public domain’ and so common to others to freely copy and exploit, and what can be proprietary and ‘privatised’.

Thus copyright is said to only protect the expression of ideas, not ideas themselves. Take a famous painting such as The Bathers by the Neo-Impressionist painter Seurat. Anyone is free to copy the idea or style behind the picture (a river scene depicted using small coloured spots of paint: pointillism). But if it were in copyright the painting itself would be protected from being copied whether by photography or some other means.

Of course this all sounds simple enough but what if someone copies a piece of software not by literally copying the code but by writing a new program which nevertheless replicates the features and functions of the existing software? As we shall see later, such examples challenge the idea/expression dichotomy. In such a case it is difficult not to argue that what has been copied are ‘ideas’ but nevertheless that in certain cases the law ought to protect them.

Both the common law and latterly the legislature have also recognised that not all copying and exploitation of copyright works ought to be treated as infringements of copyright. In the UK there are certain ‘fair dealing’ exceptions to copyright, such as the right to copy materials for private study and research, for criticism and review, for news reporting and even for parody, In the USA the courts have developed a broader ‘fair use’ defence to copyright infringement and this was enshrined in statute in the 1976 Copyright Act. As we shall see in this book these defences are being tested to the limit in the digital environment.

1.2.4.Justifying Copyright

Copyright can be justified on several grounds. These are no mere philosophical speculations. The two major world copyright systems, the Anglo-American ‘copyright’ system and the continental ‘authors’ rights’ system stand on different philosophical bases. To make sense of copyright law it is necessary to understand what these bases are and their implications for protecting digital products.

In the UK and the USA copyright is frequently justified on the basis of some or all of the following:

(a)there would be no incentive for authors to create or innovate unless in return they are granted the exclusive rights to exploit their works: innovation is good both for economic and public policy reasons and therefore we ought to have copyright;

(b)the efforts (labour) of the creative artist deserve to be rewarded in their own right, regardless of any economic benefits;

(c)the fruits of intellectual labour should be classed as property just i...