Privacy at all costs? Data protection in the age of terrorism

Apple usually hit the headlines on three occasions: when a new range of products is launched, when their financial results are released and, most relevant to Intellectual Property enthusiasts, when they are either suing or being sued by Samsung for infringement of one or other of the patents that the other asserts ownership over.

However, the technology giant have most recently thrown themselves into the spotlight by refusing to comply with a US court order requesting that they allow access to private data stored on the iPhone of Syed Rizwan Farook, the man who killed 14 and seriously injured 22 others in a gun attack in San Bernadino, California on 2nd December 2015. Specifically, Apple have refused to create a way to override their own encryption and data protection software.

From Apple’s point of view (and taken directly from the company’s open letter on their website), the US government “is asking Apple to hack our own users and undermine decades of security advancements that protect our customers”. Since the news broke of Apple’s stance, other heavyweights have come out in support of the protection of customer data and encryption at all costs. Google’s chief executive, Sundar Pichai, recently tweeted that “forcing companies to enable hacking could compromise users’ privacy” and this stance should please the masses insofar as evidencing that the CEOs of multinational technology corporations treat the privacy and data of their customers in such high regard.

Unfortunately for Apple, the US government’s request is set against a backdrop of terror and the death of innocent civilians. From a UK perspective, a conflict between data protection and national security was envisaged when passing data protection legislation, evidenced through section 28 of the Data Protection Act 1998 which states that personal data is exempt from the data protection principles should the exemption be required for the purposes of safeguarding national security. With this in mind, the salient, and rather circular, question becomes thus: when should protection of the masses (national security) take precedence over protection of the masses (data protection) and vice versa?

Since the dawn of the digital age, data protection has been of the utmost importance for both service providers and end users – service providers gain end users’ trust by protecting their data effectively and end users are more willing to provide personal data to service providers that can show they have taken all necessary measures to protect their data. In this regard, Apple can be highly praised for creating an encryption system that is so secure that they themselves have to create new software for it to be circumvented. This, most would agree, is a far better scenario than having a marketplace saturated with companies with the attitude of VTech, who, as pointed out by Troy Hunt (a Mircrosft MVP for Developer Security) amended their Terms and Conditions after a recent data breach scandal to shift an assumption of responsibility for data provided to VTech on to consumers themselves. (http://www.troyhunt.com/2016/02/no-vtech-cannot-simply-absolve-itself.html)

The present situation is not ideal for the technology industry. Several technology companies (including Twitter and Linkedin) have announced that they have filed a legal brief supporting Apple’s position. Whilst this move will be favoured by those in the ‘privacy at all costs’ camp, the brief lodged in support of the US Justice Department by the families of the victims of the San Bernadino attack can be seen to give off the impression that some of the biggest global corporations are not suitably not engaging with a government body in the fight against domestic and international terrorism.

Apple have always tried to be the company that pushed the boundaries with their innovation and product design, but the trust that they have in the consumer marketplace has been one of the main factors of their global rise from the ashes of a far less profitable time in the company’s history. On the one hand, they now stand on the precipice of making history for advancing the privacy rights of the individual consumer. However, Tim Cook, the CEO of Apple, must surely know that he is playing a dangerous game, running the risk of being seen to be playing off customers’ privacy against national security in a game of cheap point scoring.

As a standalone crusade against being forced to hack its own users, Apple’s resistance is to be admired. However, it is impossible to detach Apple’s stance from the backdrop of the San Bernadino attacks. It is for this reason that Apple need to ensure that in trying to prove a point, they do not isolate a large portion of the general public by not assisting the US government with their enquiries into the tragic events at San Bernadino.

Note from the author – at no stage does the content of this blog post offer or provide legal advice of any form and should not be relied on as such. Should anyone have any personal/professional issues concerning Intellectual Property, please seek legal advice. For further information, please see the full Disclaimer under the ‘About’ tab.

 

 

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Internet Service Providers – Policy Makers’ Go-To-Guys

As discussed in my previous blog post (‘General Election 2015: A Vic-Tory for Intellectual Property?’), one of the Conservative Party’s key IP-related manifesto pledges focused on placing greater responsibility on Internet Service Providers (‘ISPs’) to police the Internet. You will also recall that I did undeniably label anyone who believed that an elected majority government would keep to their election pledges as naïve.

Well if the High Court’s recent decision to grant an injunction forcing 5 major ISPs to block websites hosting infringing eBooks is anything to go by, I may well be forced to eat a slice of humble pie.

Decision of the High Court

The Publication Association made an application to the High Court for an injunction under section 97A of the Copyright, Designs and Patents Act 1988 (‘CDPA 1988’). By way of background, section 97A was inserted into the CDPA 1988 by The Copyright and Related Rights Regulations 2003 and gives the High Court the power to grant an injunction against a service provider who has actual knowledge of someone using their service to infringe copyright.

This particular application related to eBooks, being electronic books available to download and view on various devices, most notably tablet computers. Despite this being the first time that section 97A CDPA 1988 has been used to obtain an injunction in relation to websites sharing infringing eBooks, the power has been well used in the past few years in relation to the sharing of music and video content online.

The injunction granted by the High Court is comprised of three main elements: (1) the injunction was granted against 7 major infringing websites (ii) 5 major ISPs have been ordered to block these 7 infringing websites (BT, Virgin Media, EE, Talktalk and Sky) and (iii) the ISPs in question were given 10 days to implement such blocks.

An Undesirable Judgment?

Whilst we can only assume that the High Court’s judgment was well intentioned, is a further extension of the already wide use of section 97A CDPA 1988 the best way to deal with infringing material on the Internet?

  1. Does this address the real problem?

It is well documented, not only within IP circles but also in mainstream media, that major websites hosting infringing video content have been blocked in the recent past and that ISPs have been the ones burdened with the responsibility of enforcing and policing this action. However, it does appear that this continuing need for injunctions indicates that ganging up on the middle men in this scenario is just not working. What this area of the law has failed to achieve is a substantial and significant disincentive to creating infringing works due to it not being those producing infringing materials that are subject to sanctions and Court Orders.

Admittedly, it is easier to pursue five ISPs than hundreds of thousands of people in bedrooms across the globe copying and uploading infringing material onto the Internet. However, the policy driven approach as it currently stands does little to dissuade this behaviour. We are simply penalising the wrong group.

  1. ‘The easy way out’: Are policy makers placing too much responsibility on ISPs?

In September 2013, the Police Intellectual Property Crime Unit (‘PIPCU’) was launched in the UK to protect against crimes concerning breaches of Intellectual Property Rights. The City of London Police’s website (of which PIPCU are affiliated) states that the Intellectual Property Office provided PIPCU with initial funding of £2.56m until June 2015, with a further £3m promised to take PIPCU through to 2017. With funding at just over £5.5m, this should allow PIPCU to actively police the Internet and deal both with websites that it feels are offering infringing material to the public and those individuals behind the uploading of the infringing material.

The work of PIPCU since their inception should rightly be applauded, as it was reported on the City of London Police’s website that towards the end of February of this year, more than 2,000 websites have been blocked in connection with hosting infringing materials. However, this statistic begs the question: ‘why, when there is a designated task force to deal with prosecuting IP infringers, are the legislature and the Courts placing such burdensome obligations on corporations (in this case, ISPs)?’

Perhaps this has something to do with corporate social responsibility – is this the legislature’s attempt to make corporations more aware of their responsibility of making sure that their ‘product’ is not used to encourage or assist the breaking of the law? This is a possibility, as the wide powers granted to the Courts under section 97A CDPA 1988, along with the sanctions for those ISPs who fail to comply with an injunction issued under the legislation, could act as an incentive for ISPs to keep an eye on the users of their service more carefully. However, the fairly recent extension of a section 97A CDPA 1988-style power to the realm of trademark law (see the 2014 High Court decision in Cartier, Montblanc and Richemont v BSkyB, BT, TalkTalk, EE and Virgin) seems to suggest that ISPs are still not as willing to self-police in all areas of IP infringement without being forced to do so by the Courts.

  1. Turning a Blind Eye to Infringement

Whilst statute can often be criticised for being unclear, section 97A CDPA 1988 is initially clear in its terms – an injunction may be granted if an ISP has actual knowledge that someone is using its services to facilitate infringement. However, this clarity ends as swiftly as it began, as for the purposes of defining actual knowledge, the Courts take each case on its own facts. Some minimal guidance is given by section 97A(2) CDPA 1988 and permits the Court to take into account whether a service provider has given their email address to allow swift communication (lifted from section 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013)), whether any notice given includes the full name and address of the sender and whether that notice details the alleged infringement.

In a section of statute that provides the Court and legislature with a vast amount of power over ISPs, does the requirement of actual knowledge, as opposed to merely constructive, implied, imputed or any other kind of knowledge, provide ISPs with a reason to turn a blind eye to copyright infringement so as to avoid the burdensome conditions that can ultimately be imposed upon them?

This is not a suggestion that ISPs would go out of their way to avoid being notified. This idea simply proposes that should the Courts continue to use their powers under section 97A CDPA 1988, ISPs may adopt a passive approach toward the prevention of copyright infringement, through simply sitting back and waiting to be notified of a potential infringement as opposed to actively patrolling their product to source them out and block them. Surely, a system of active policing would be for the greater good as far as policy makers are concerned?

Where Next for ISPs?

As alluded to above, it was clearly stated by the Conservatives in their pre-election Manifesto that getting tougher on ISPs was on their agenda for the next 5 years. I am not sure that anybody expected a judgment concerning the use of section 97A CDPA 1988 to follow so shortly after the General Election; however, should this be a sign of things to come, ISPs may well be far too busy complying with Court Orders to take calls regarding the problems with your broadband!

Note from the author – at no stage does the content of this blog post offer or provide legal advice of any form and should not be relied on as such. Should anyone have any personal/professional issues concerning Intellectual Property, please seek legal advice. For further information, please see the full Disclaimer under the ‘About’ tab.

General Election 2015: A Vic-Tory for Intellectual Property?

Since my last blog post, the small matter of the general election has come and gone. With the dust having now settled, the UK faces 5 years led by David Cameron and a majority Conservative government. I will stress at this juncture that I intend to remain apolitical from the outset of this blog post.

Whilst Mr Cameron did not, unlike his main rival, take the biblical step of etching his pledges for the next 5 years into a stone slab, he did, as did all of the other parties running in the election, outline various policies and pledges for the next 5 years in a manifesto. Whilst most of these commitments related to taxation, the economy and the NHS (and quite rightly so), Intellectual Property did get a mention on three main occasions relating to British food products (trademarks), commerce (patents) and supporting creative industries (copyright focused).

As we embark upon the next 5 years of a Conservative government, now seems the perfect opportunity to flesh out the promises made by the Tories concerning Intellectual Property in their manifesto and ascertain whether or not their implementation is both possible and worthwhile (this is, of course, written under the naïve assumption that an elected party with a majority government will keep to the promises made in their manifesto).

Trademarking British Food Products

First off, the Conservatives have pledged to establish a ‘Great British Food Unit’, with this body designed to aid the marketing of British food products around the world through helping to trademark these goods, thereby enhancing their marketability.

In theory, this is a lovely idea. However, aside from potentially reducing unemployment in the UK by a further 20 people through the establishment of this group, what ‘help’ is this group actually going to provide to improving the way in which produce is protected through trademarking? The Conservative manifesto provides no substantive explanation as to the composition of the Great British Food Unit (i.e. whether it will be comprised of government ministers, trademark attorneys, lawyers or a mixture of all three). However, it is widely understood that the main goal of this unit is to increase the number of British products attracting ‘protected name status’, meaning in practice that foods marketed as being produced in specific places cannot subsequently be reproduced in a cheaper way elsewhere, thus protecting the interests of regional industries.

Making the UK an Attractive Centre for Patenting

Credit where credit is due, Ed Miliband’s campaign message of wishing to under-promise and over-deliver rather than over-promise and under-deliver is a good approach to take in the long run, as governments are usually judged on their achievements, or lack of them, whilst in government (see how Mr Miliband was castigated for the failures of the last Labour government). However, statements like this can lead to fairly bland and vague pledges.

It seems that, as far as promoting commerce through making Britain an attractive place to seek patent protection for new inventions is concerned, David Cameron and the Conservative Party have developed a nasty case of ‘the Milibands’. Their manifesto provides that Britain will become the most favourable place in the whole of Europe to gain patents for new inventions; however, this is where the pledge ends. No whys or hows, no rhyme or reason.

Increased Responsibility On Internet Service Providers (ISPs)

Arguably the final act of the last Labour government with a major impact on Intellectual Property was the passing of the Digital Economy Act 2010 under the guidance of Lord Mandleson. The primary goal of this legislation was to place responsibility upon ISPs to block websites carrying infringing content on them. The most common websites targeted thus far have been online video streaming websites and peer-2-peer file sharing hosts (one now only has to mention The Pirate Bay litigation for the debate about file sharing to re-open).

Whilst complaints from ISPs ensued due to the onerous monitoring conditions placed upon them, the Digital Economy Act 2010 remained in force throughout the Conservative/Liberal Democrat Coalition, with multiple infringing websites being blocked by various ISPs as a result. Thus the pledge in the Conservative’s pre-general election manifesto this time around of continuing down the road of forcing ISPs to police the internet (whether or not they want to) is not surprising.

Thus whilst the next generation of young adults’ thirst for getting their hands on as much downloadable content as possible whilst simultaneously parting with as little money as possible increases, this newly elected government appears to be committed to protecting legitimate commercial interests and creative industries (film, television, music etc.) whilst stifling all those seeking to make a quick buck free-riding on the efforts of others. This, coupled with David Cameron’s pledge to continue to educate the general public as to what constitutes copyright infringement through voluntary anti-piracy projects highlights a government willing to place Intellectual Property at the forefront of commercial development.

Impact On The Next 5 Years

Whilst having a majority government goes a long way to increasing market confidence and, in turn, investment in creative development, the vague pledges regarding trademarks and patents are symptomatic of a ‘style over substance’ government. Of course the government wish to make the UK a more attractive place to gain patents and help to enhance the marketability of British products around the world through trademark protection – what government would want to harm the commercial lure of their country? However, aside from attempting to increase the reach of ‘protected name status’ products, your guess is as good as mine (and potentially as good as that of the Conservatives) as to how this is to be achieved.

On the other hand, whilst some may argue that there are other areas of copyright law that the new government should be focusing on, their specific pledges towards furthering the accountability of ISPs and educating the public are to be applauded in the way in which they promote the interests of creative industries in a society which has rapidly become one constantly demanding ‘more for less’.

And let us not forget that, irrespective of the Conservative’s plans for the next 5 years, who knows what curveballs the European Courts could throw our way, both in terms of legislation and case law. That is, until, the in-out referendum rears its head….

Note from the author – at no stage does the content of this blog post offer or provide legal advice of any form and should not be relied on as such. Should anyone have any personal/professional issues concerning Intellectual Property, please seek legal advice. For further information, please see the full Disclaimer under the ‘About’ tab.

Lego – A Lawyer’s Plaything

I was fortunate enough to recently visit “The Art of the Brick” exhibition at The Old Truman Brewery in East London. For those of you who are unaware of this global phenomenon, it is an art exhibition made entirely out of Lego bricks.

The brain behind the bricks is Nathan Sawaya, a former corporate lawyer. After resorting to building Lego models in his spare time to relax, Nathan decided to turn his back on the Law and try his hand at Lego on a full-time basis. Since this decision in 2004, he has been heralded as being the founding father in taking Lego to the art world.

As someone who would repeatedly choose a quirky art form over a Rembrandt or Monet, I was stunned by the sheer creativity of Nathan Sawaya and the way in which he has managed to manipulate a material that most of us, myself included, can do no more with than build a tower. However, as a student of Intellectual Property, the case law and debate surrounding sculptures under copyright law immediately became apparent and the exhibition suddenly took on a whole new meaning.

Is a Lego model really a sculpture?

Section 4(1)(a) Copyright, Designs and Patents Act 1988 (‘CDPA 1988’) expressly provides copyright protection for original sculptures, irrespective of their artistic quality. Whilst it is clearly (and quite rightly) the legislature’s intention that artistic quality should not be a consideration when categorising what is a sculpture, the Courts have been careful not to draw the scope of what constitutes a sculpture too widely.

In the most relevant case to date on the subject, Lucasfilm Ltd v Ainsworth (a case concerning Stormtrooper helmets, which ironically have often been replicated by Lego in Star Wars-themed box sets), Mann J felt that one must have regard to the ordinary meaning of the word ‘sculpture’, but that the scope should extend beyond what one would usually expect to find in an art gallery or similar exhibition. Whilst the Supreme Court eventually upheld the decisions of the High Court and Court of Appeal (holding that a Stromtrooper’s helmet and armour are not sculptures), the Supreme Court was not keen on the Court of Appeal’s “elephant in the room test” (i.e. you know a sculpture when you see one) propagated by Jacob LJ and for good reason, as this test does little to promote creative endeavours and artistic furthering through the medium of sculpture.

Whilst section 4(2) CDPA 1988 does provide that the intention of the artist when creating a sculpture can be taken into account, (Mann J highlighted that the purpose of the Stormtrooper helmet and armour was functional, thus removing it from the sphere of the sculpture), it seems uncontroversial to conclude that Nathan Sawaya’s creations are sculptures in their own right, deserving protection by the law in some form. However, it should be noted that this is not a blanket rule concerning any model made out of Lego, but a view purely based on the very nature of Sawaya’s artwork.

The Issue of Originality

The main difficulty arises out of the subject matter of these Lego sculptures. As alluded to above, an artistic work must be original to gain copyright protection. For those who have not seen Nathan Sawaya’s work, it broadly falls into two distinct categories.

The first are works taken from the artist’s own ideas, and these appear to satisfy the admittedly low test for originality under copyright law following the CJEU’s ruling in Infopaq (‘the author’s own intellectual creation’).

The second type are more problematic, comprising of Lego sculptures depicting real-life paintings and sculptures. For example, in the London exhibition, there are exact replica Lego sculptures of da Vinci’s ‘Mona Lisa’, Munch’s ‘The Scream’ and Vermeer’s ‘Girl With A Pearl Earring’. The evident problem is that whilst Lego sculptures of these paintings may be an original way of displaying them, the actual content of the sculptures is not original.

Thus the question becomes: is there an infringement of copyright? For Nathan Sawaya’s Lego sculptures depicting historic portraits and sculptures, it would appear not. This is due to copyright having long expired in these works, causing them to fall into the public domain as a result.

So whilst it looks like Nathan Sawaya has not infringed the rights of da Vinci in the Mona Lisa, would the answer be the same if he made a Lego sculpture of a painting created in 2014? Under section 17(3)(a) CDPA 1988, ‘copying’ includes the making of a copy of a two-dimensional work in three dimensions as far as artistic works are concerned. As Lego bricks are, by their very nature, bricks, anything made with them appears to be inherently three-dimensional and, as such, would seemingly satisfy this definition of copying. Thus it would appear that Nathan Sawaya should stick to replicating the classics to avoid copyright infringement issues.

Is this fair?

Should Nathan Sawaya’s modern recreation of paintings and sculptures be limited to those created in the distant past following the expiry of their copyright protection? Perhaps the solution is to amend section 62 CDPA 1988 to allow for the copyright in all artistic works (rather than for a selected few as currently drafted) situated permanently in public places to not be infringed by making a sculpture of them. The reasoning behind the legislature’s limitation of non-infringing behaviour to making graphic works, broadcasts and photographs depicting a selected few types of work (section 62(2) CDPA 1988) is unclear – however, a line does admittedly need to be drawn somewhere to balance the rights of authors with the freedom to create and express artistic intent and desire.

So where does this leave our former lawyer turned bricklayer (if such a term can be used)? Whilst there is something rather poetic about only the historic being capable of modernisation through Lego without infringing copyright, perhaps a lack of freedom when concerning artistic works which still attract copyright needs to be addressed. That said, maybe the true test of whether a work is worth replicating at all is whether people are still interested in it once it has fallen into the public domain! Whatever the legal implications, Nathan Sawaya’s work is definitely worth seeing.

Note from the author – at no stage does the content of this blog post offer or provide legal advice of any form and should not be relied on as such. Should anyone have any personal/professional issues concerning sculptures and copyright law, please seek legal advice. For further information, please see the full Disclaimer under the ‘About’ tab.

Up And Running!

Welcome to A View On IP.

The first blog is currently being prepared and will be with you shortly, so watch this space.

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