Intellectual property: love or hate?

Now available via ‘advance access’ (institutional login required) to the Journal of IP Law & Practice (JIPLP) is my colleague Prof. Christopher Wadlow‘s barnstorming piece on Marmite, the BNP and the law, The Marmite Election. I had the pleasure of hearing the ‘live’ version of this piece earlier in the year, and it has already received a good deal of informal praise (including from those outside of law – note the use of semiotic theory and cultural studies alongside the expected doctrinal legal analysis). Aside from the thorough analysis of a range of trademark, copyright and passing off issues, including the relationship between these points and freedom of political expression, the reader will also find a remarkably wide range of references to authors, bands and musicians (from Florence & the Machine to Morrissey via Vera Lynn and Samuel Beckett), the X Factor and snowclones (to name but a few) in the text and footnotes. It’s also quite funny, and as such is an appropriate way for JIPLP to mark the end of another busy year. Enjoy!

SLS 2011: Media and Communications

This is my (personal) report on the Media and Communications subject section at the annual conference of the Society of Legal Scholars, held in Cambridge this week. For those not familiar: the SLS is the organisation for legal academics in the UK and Ireland, and this was its 102th annual conference. As well as plenary sessions and an AGM, the main business of the conference is a range of subject-specific parallel sessions, of which Media and Communications is one. A related area is Cyberlaw, but this year they ran at different times in the week (the conference is divided into groups A and B), which did appear to increase the attendance at both. During this year’s meeting, I was elected as the fourth convenor of the section, taking over from Mike Varney (and before him Tom Gibbons and before him Eric Barendt) – a quite daunting line of succession!

Session 1 had a focus on information – although in very different ways. Damien Carney (Portsmouth) opened up with ‘Truth and the unnamed source’, considering the importance of truth (and objectivity) in the law and ethics of the protection of sources. He looked at the recent decisions in National Post (Canada) and Financial Times v UK (the latest instalment in the Interbrew case), making particular points about the reassessment of who the privilege on the protection of sources ‘belongs’ to, with the Canadian and European courts heading towards an emphasis on the rights of the public to know (the truth?). Lawrence McNamara (Reading) followed with his paper on terrorism and disclosure obligations, considering section 38B Terrorism Act and the various laws that preceded it. Despite very few cases on the matter, the provision has an impact on the practices of media organisations, although there are differences between the thresholds applied within organisations and as apparently required by law. He also debated the rights and wrongs of a media exemption and how necessary it is to take a legal approach in any event. Finally, Neil Richards (Washington University, St. Louis) presented his theory of intellectual privacy. He distinguished between ‘tort privacy’ and ‘intellectual privacy’, particularly on the difference between the impact of each on freedom of expression, suggesting that the former might be confined to ‘truly shocking’ disclosures, but the latter was important because it protects the process of considering and forming ideas. Interestingly, there was a strong technological dimension here, given the role of search engines and of surveillance technologies. He proposed four key aspects of the right to intellectual privacy: thought and belief, the right to read, spatial privacy and confidentiality, and also considered the need for a horizontal approach rather than a negative constitutional doctrine alone.

Session 2 had a European theme, with papers from Irini Katsirea and myself. Irini’s presentation was about product placement, specifically the implementation of the new rules set out in the Audiovisual Media Services Directive (AVMSD) in two jurisdictions, Germany and the UK. She highlighted some of the vaguer aspects of the Directive, such as the criticism (but not outright ban) of thematic placement, the conflict between provisions on surreptitious commercial communications, undue prominence, and limited scope for allowing product placement. The UK has excluded certain genres (above and beyond the Directive), but only for broadcasters under UK jurisdiction, again because of the Directive. Germany has required identification of PP in acquired programming, but without an offence of breach of this duty. The UK and Germany took different paths on thematic placement – unclear in the former, banned in the latter. The minimal requirements of the Directive on notifying viewers were also considered. In the discussion of the paper, we also wondered to what extent product placement was actually present in EU-origin programmes since the Directive. My own paper was on the European Convention on Transfrontier Television, a Council of Europe instrument dating from 1989 but currently in serious trouble after an aborted attempt to amend it. After explaining the history of the relationship between it and the EU’s media law directives, I discussed how the European Commission objected to the amendments that would have brought it up to date with the AVMSD, assessing the legal basis for this objection (external powers of the Union) and how this was debated in various fora. I also looked at the reaction of the UK, which had in the 1980s been a strong supporter of the Convention, but had some problems with the current amendments and mixed feelings about the Commission’s intervention. I concluded with a wider discussion on EU-Council relations and whether other areas (such as media pluralism and impartiality) might fare in future developments. [If readers will permit a further note: I have a draft paper on which comments would be appreciated, not available online but happy to supply copies if you are happy to offer your views: email me].

Session 3 was about recent developments, both with a European context and a British focus. Tom Gibbons (Manchester) looked at the relationship between reputation and privacy within Article 8 ECHR, and the differences between English law on defamation and on privacy. He was reluctant to describe what is happening in Strasbourg as a doctrine, given the inconsistent positions expressed by differently constituted courts, but discussed a number of defamation-type cases where the engagement of article 8 was taken for granted. Nonetheless in Karakó v Hungary there may have been a move away from this position, with some importance attached to internal and external notions (he considered, later, whether reputation is external and privacy is internal). English cases on injunctions (ZAM, Terry) have added comments on the importance of reputation, and the Supreme Court’s decision in the freezing orders discussion discussed ECHR decisions and the need for a serious threshold. Are we moving towards a Re S-style ultimate balancing exercise? Is the justification defence to defamation threatened by an article 8 approach? What about Reynolds? He also argued that the ability to evaluate others is important and subsuming reputation into article 8 may be difficult to reconcile with this. Following on, my UEA colleague Michael Harker presented his paper on vertical restraints in broadcasting, or why ‘content is king’. As well as a thorough explanation of the market structure of pay-TV in the UK, he focused on Ofcom’s intervention regarding sports channels, particularly the requirement on Sky to offer its channels to other platforms (e.g. digital terrestrial) at a regulated price. Michael explored the differences between ‘sectoral’ and ‘competition’ approaches, and the remedies available in both cases. The possible consequences of intervention were outlined, including the need to protect innovation and also the policy goals of (for example) promoting broadband uptake.

Finally, session 4 was a pair of case studies. Ewa Komorek (my former colleague as a doctoral student in Dublin) reported on the ups and downs of Polish media law. She looked at three particular issues: ‘Rwyingate’, politicisation of public service media and problems with press freedom and criminal law. The first was a major national scandal regarding the proposed takeover of a private television channel by a major media company, and the disclosure of an attempt to exchange ‘a law for a bribe’, as a national newspaper reported. This led to a major report on the activities of the ‘group in power’, the resignation of a government, and wider discussion of the adequacy of the legal framework on media concentration and mergers. The second is also about the relationship between politics and media, with Ewa explaining the structure of the public service broadcaster and recent changes that may (or may not) increase the independence (from political influence) of the broadcaster. Finally, she looked at a range of criminal provisions, including those about insulting the president (imprisonment up to three years and no defence of provocation!) and defamation itself, despite criticism from the ECHR on the impact of these provisions. She was followed by Eliza Varney (Keele), whose presentation was about disability and ICTs after recent changes to EU law, particularly the 2009 amendments to the electronic communications directives and EU equality law. Although some progress has been made through the updating of universal service provisions, she pointed to outstanding issues such as the consumer-driven approach to regulation, the focus on sensory disabilities (e.g. as compared with cognitive), and the weakness (after industry lobbying) of some provisions. Eliza argued for a universal design approach and considered whether a disability-specific provision of general equality law (particularly if the proposed directive on discrimination re access to goods & services does not proceed) might be of assistance.

Neither fish nor fowl: video games and the law

Last month’s decision of the US Supreme Court in Brown v Entertainment Merchants’ Association (PDF) (formerly Schwarzenegger v VSDA) has attracted a lot of attention.  For some academic background on the story leading up to the case, see Rousse’s thorough ‘Electronic Games and the First Amendment’ (SSRN), or my own piece of last year, ‘The regulation of video games: past, present and future‘.  All the filings in the case are available via SCOTUSblog.  This blog post, written in honour of what was apparently Video Games Day in the US last Friday, brings you some comments of my own – bits of this have appeared previously in a nice piece by Ben Maxwell on Edge Magazine’s website, available here.  I’ve used the excellent coverage of press statements by various parties at GamePolitics.com for many of the added links.

The most significant thing about the decision to strike down California’s law on the sale of video games to under-18s was how clearly it was a First Amendment case;  the court was particularly firm in arguing that games were protected in full by the First Amendment.  Scalia (for it is he who writes the majority opinion) goes to great length to compare video games with other forms of expression (from comic books to movies), and even highlights the degree of gore found in the clearly-acceptable Snow White, Hansel and Gretel  and Cinderella, not to mention Homer’s Odyssey, Dante’s Divine Comedy and Golding’s Lord of the Files.  The interactivity of good fiction is used to dismiss the claim that interactive games deserve special legal attention.  To some extent Breyer’s dissenting opinion answers this (although see the Citizen Media Law Project’s blog’s puzzled face at how Breyer feels about the First Amendment), as does aspects of Alito’s concurrence (which reads more like a dissent, and anyway Scalia has four votes as well as his own (from the ‘liberal’ wing!) already, so a majority without the separate opinion).  (Thomas also writes a dissent, but it’s about the lack of constitutional rights of under 18s as a broader principle).

Not only does this confirm that games are being taken seriously at the highest legal levels, it also placed a heavy burden on California to justify the restriction.  With this in mind, the court was not persuaded in the slightest by the evidence put forward regarding a link between gaming and aggression, which must come as a disappointment to those who have been arguing these theories for some time.  The Empirical Legal Studies blog has a good piece on the evidential issues.  While the need to be aware of specific issues for under-18s was noted, even this was not enough to justify the intervention.  However, it’s interesting to consider whether there is a gap opening up between the approach of the court to sex and to violence (or indeed to language); the fact that the decision to hear Fox v FCC in 2011/12 (this time on First Amendment grounds alone; last time the focus was on administrative law) was announced on the same day does whet the appetite.

In the US, the decision means that the self-regulatory system (the ESRB) will continue to be the main form of video game regulation for some time, and other states that had considered following California’s lead will probably cease their efforts.  The ESRB pointed to the decision as an endorsement of its system, although there were some harsh words in concurrence and dissent regarding the effectiveness of the labelling system.  I was particularly interested to see the response of the State Senator who proposed the original legislation, Leyand Yee, who focused on the corporate power of the games industry being able to continue unchecked.  I don’t agree with a lot of Yee’s points in the press release, nor with separating video games from other forms of protected expression, but there is a point about accountability and indeed power when the anti-regulation industry is happy to support and fund regulation as long as it is the regulator.

Meanwhile in the UK, we already have a mixture of self-regulation and statutory control.  Most games are exempt, while some (either on the grounds of content – gross violence, etc – or format – significant video content) are presently classified by the BBFC under the Video Recordings Act.  Changes are on the way though (as discussed in my 2010 piece), with two simultaneous amendments to the VRA – the extension of statutory regulation to a wider range of games, and the possibility of designating a separate body for the classification of video games.  Taken togther, this will mean the use of the (existing and non-statutory) Europe-wide PEGI system for statutory classification in the UK, once the relevant orders (envisaged by the Digital Economy Act) are passed.

The High Court has already had one opportunity to consider video games, in a 2008 judicial review of the decision of the Video Appeals Committee (itself an appeal against a BBFC refusal to classify) regarding Manhunt 2, [2008] EWHC 203 (Admin).  On that occasion, the Court found that the VAC was not interpreting the ‘harm that may be caused to potential viewers’ provisions of the Video Recordings Act (as amended) correctly.  The ECHR’s concept of harm was mentioned, albeit briefly.  In future cases, one imagines that the detailed findings of the American courts may be useful (albeit of persuasive value only and subject to the usual concerns around the First Amendment in non-US courts).  The impact of a regulatory decision on the right to freedom of expression as contained in the Human Rights Act is clear.  Of course, the BBFC already states that it takes the HRA into account (alongside other statutory provisions) and one assumes that this will continue under the Video Standards Council for PEGI.  The VSC should declare, immediately on taking up its duties, that it will act as if the Human Rights Act applies to it (which it most likely does) and it should go about its business in a responsible fashion, including asking to be subject to the Freedom of Information Act and publishing its decision-making and appeal procedures.

UK developers may be relieved that they do not have to deal with a California-only system as there are already a number of different systems in use around the world, although they will still need to be aware of differences between the ESRB (US) and PEGI (European) systems of classification.Of course, Germany remains outside PEGI, and Australia remains a major ‘market’ for games with a standalone system for classification, which – in essence – has a ‘top category’ of suitable for 15 and above, which means that games classified for over-18s in other jurisdictions may not be acceptable in Australia.  This has been under review for some time.

Guest post for Human Rights in Ireland

Human Rights in Ireland is a group blog that contains many useful posts on, as you might expect, human rights in Ireland. I was very pleased to write a guest post for the blog, which has just been published. I’m republishing it here for those who have not already seen it.  I do recommend that you subscribe to the full HRinI feed!

The recent attempt by JP McManus to secure the removal of ‘fake profiles’ on Facebook (reported by the Irish Times on 30 May) through an application for an injunction (struck out after the pages were taken down) is just the latest reminder of the importance of intermediaries when it comes to law and the Internet. In this situation, McManus appears to have been doing something that isn’t difficult to understand – turning to the law to make the offending page disappear from the Web. In the UK, of course, we have seen the last few weeks as a significant time in the development of the law on privacy injunctions, with judges, newspapers and certain Twitter users taking fairly different approaches.

However, it’s far from a new problem. Within the then-novel field of what some called cyberlaw, the middle part of the 1990s was dominated by earnest debates in journals, courts and parliaments on the future of law. John Perry Barlow’s assertiveDeclaration on the Independence of Cyberspace of 1996 told governments they were not welcome in this new world that was governed by its own social contract, dismissing laws on everything from property to identity; ‘they are all based on matter, and there is no matter here’. Many responded by pointing to existing legal principles or forms of technological enforcement. Regarding Facebook, Twitter and other sites, the key resolution of these early debates, which continues to shape their rights and responsibilities as well as those of their users and those their users write about, was in new statutory principles on liability. For example, article 14 of the E-Commerce Directive (2000/31), transposed into Irish law as SI 68/2003, points to a ‘notice and takedown’ approach. This means that Facebook is not liable for – say – a defamatory statement posted by one of its users, as long as it ‘upon obtaining such knowledge or awareness [of the unlawful activity], acts expeditiously to remove or to disable access to the information’. In the case of ISPs acting as ‘mere conduits’ (like your friendly broadband provider), a greater degree of immunity is provided.

The position is a little different in the US, where a distinction is drawn between intellectual property (governed by a notice and takedown system in the Digital Millennium Copyright Act) and other (non-criminal) claims (close to absolute immunity without a takedown requirement, under the Communications Decency Act). Other provisions may also be relevant at a national level, such as s 27 of the Defamation Act 2009 in Ireland on innocent dissemination.

Whatever the position of the intermediary, important rights are at stage. Too much immunity, and the aggrieved person will say that they cannot see their rights vindicated; Danielle Keats Citron also argues that there are consequences for equality. Too little, and the intermediary becomes risk-averse, taking down content at the mere hint of potential possible illegality, as Ahlert, Marsden & Yung’s famous study demonstrated in 2004, with deleterious consequences for the right to communicate. Even where conditional immunity is pursued, there are further questions to be answered – what is expeditious, for example, and does it vary based on the gravity of the situation or the number of people who have retweeted the information? What of providers located in the US without meaningful assets, customers or facilities in the EU? Furthermore, beyond the big issue of liability, hosts may also be faced with Norwich Pharmacal orders, to disclose the name of a user where the host is ‘mixed up’ without fault in the wrongs of others.

Although much of the news coverage of Twitter seems to have glossed over this point, such an order was granted in respect of Facebook as far back as 2008: Applause Store Productions v Raphael [2008] EWHC 1781 para 10. There are some unresolved issues (which the ECJ has hinted at) on the balance between privacy and e.g. copyright enforcement, and of course, there are limits to (a) how tolerant a court is of mass applications and (b) how much information is available (or useful) through this process.

Indeed, the Irish Times also reports that McManus had raised constitutional and data protection claims. Neither are particularly surprising, and it surely won’t be long before an Irish court has the opportunity to try and deal with this balance. The most significant case so far has been about a betting chat room (Mulvaney v Sporting Exchange t/a Betfair [2009] IEHC 133), but that was a fairly straightforward application of the Directive; the various ‘music’ cases did discuss (albeit unsatisfactorily) the need to balance various rights in the context of the claims of record companies against ISPs. Certainly, reliance on Convention rights has been important in the grant of privacy injunctions in England; the recent cases have been about the need for injunctions in the face of disclosure (e.g. CTB [2011] EWHC 1326 (QB)), rather than takedown disputes. However, if the Irish courts see a fully-argued constitutional claim, difficult issues of EU law will need to be negotiated. It must surely be hoped that the current reviewof the E-Commerce Directive will take note of the decade’s worth of development and interpretations and sets out a system for intermediaries, including a method (despite its title) to give thorough consideration to relevant fundamental rights as part of the process, whether they are engaged directly or indirectly.

Jo Glanville on The Net Effect at UEA

Jo Glanville (of Index on Censorship) visited the University of East Anglia today, for an event organised by the UEA Law School and media@uea. These are my notes (started handwritten, typed up later, no direct quotes). For me, it was an interesting end to a day that started with a first year lecture (constitutional law) on the history of freedom of expression, as Jo’s talk focused on the future, with the title “The net effect: the limits of Internet freedom“. She started by introducing the work of Index on Censorship, including its development from a focus on writers and censorship to a particular present concern with policy and reform. In this context, the recent speech by Hillary Clinton – her second on Internet freedom – was interesting, not just for the vision it set out but also how it differed from the simultaneous attempt to subpoena Twitter in respect of user information pertaining to Wikileaks. Interestingly, this was discussed in the context of the link (rather than the opposition) between freedom of expression and privacy. Twitter had ‘stood up’ for the user in this case and had challenged a gag order, but would others do the same? Another example of an attempt to resist censorship was the proposed judicial review of the Digital Economy Act brought by BT and TalkTalk.

However, there are other moves towards interference with communications, such as the return of the wiretap/intercept/CALEA debates in the US. In this context, she paid particular tribute to the work of Chris Soghoian. In the UK, interception of communications seems to have returned as an issue with the Coalition (despite promises), and the future of RIPA (interception) remains unclear – a particular issue given that the number of warrants in the UK and the US appears to be the same per year, despite the different sizes.

Regarding use of the Internet, one thing to note from Wikileaks is the power wielded by the likes of PayPay, Amazon and Visa, particularly if they have been influenced by the US Government. In the UK, the DCMS is now discussing ‘blocking’ with ISPs (for legal pornographic content on the grounds of the protection of children), but this has many problems, such as who decides and what grounds. We have already seen the Wikipedia/Internet Watch Foundation problem of over-blocking in the narrower context of the current IWF remit.

Jo also discussed a range of issues in relation to the current protests in Tunisia, Egypt and elsewhere, including the role of technology in these protests and also the response of activists to the Clinton speeches, concluding with a discussion of the preference for building an open, neutral network that could be used by activists to speak, instead of specific US intervention.

In discussion, questions came from both staff and students from the UEA Law School, touching on behavioural advertising (including how information gathered for this purpose could be used by public authorities), the different roles of ISPs and websites (and how they may be supportive of Index campaigns in some contexts but not others, e.g. net neutrality, co-operation with Government), the relationship between Wikileaks disclosures, Tunisian unrest and demographic changes, the role of the Global Network Initiative and how it can or cannot serve to moderate behaviour, and the response of users to HADOPI in France, particularly the move towards circumvention as a response to control.