Viacom's claim against YouTube for copyright infringement

Viacom Media has filed a $1billion lawsuit against Google, and the popular video-sharing company it purchased in October 2006, YouTube.  Besides damages Viacom is seeking an injunction to prevent what they describe as "massive intentional copyright infringement".

Viacom alleges that 160,000 unauthorised clips taken from Viacom programmes have been uploaded onto YouTube and illegally watched more than 1.5 billion times.  Google is denying the allegation that YouTube has taken part in any copyright infringement and claims to have fully respected the legal rights of copyright holders.

Viacom's case is likely to rely upon US legislation, namely the 1998 Digital Millennium Copyright Act which provides that a website is not liable for copyright infringement as long as it takes steps to remove the material soon after it has been notified by the copyright owner.

Viacom claims that YouTube has not done enough to take reasonable precautions to deter the large-scale infringement on its site.  It also complains that it is unjust for the burden of monitoring copyright infringement to be borne by the copyright owner, since this is no longer an adequate method to police copyright infringement in the current technological climate where infringement can be on a massive scale. 

Viacom questions why YouTube can monitor and remove pornographic and other illegal material from the site and yet will not put in place similar safeguards in respect of material which infringes copyright.  If YouTube co-operates with Viacom's demands for such safeguards, it is likely that the parties will settle the dispute without going to trial.

For further information please contact: Rebecca Swindells

Deep linking - infringement of copyright?

The recent Belgian case of Copiepresse v Google (06/10.928/C) has brought to the fore the issue of whether the deep linking of copyright material on a website constitutes copyright infringement. Deep linking is where a link on one website takes the user directly into a part of the linked site, so bypassing the linked website’s homepage. This is distinct to a simple link where a link on one website directs the user to the homepage of another website.

The Copiepresse case concerned Google's use of the headlines and short extracts from the text of articles of Belgian, French and German speaking Belgian daily press for its "Google News" service. Google News is a specialised search engine that indexes press articles published on the internet. It provides the headline of the article, a snippet of the text and a deep link to the webpage of the news provider which the article is taken from. The Belgian newspaper publishers (Copiepresse) brought a claim for copyright infringement of the substantive articles and the Belgian Court of First Instance ruled in their favour, stating that the “reproduction and communication to the public of the titles of the articles and the short extracts from articles" for the Google News service infringed Article 1 of the Belgian Copyright Act 1994 (BCA 1994). Article 1 BCA 1994 is very similar to sections 16 and 20 of the Copyright Designs and Patents Act 1988 (CDPA 1988): it states that the author shall have the sole right to reproduce or authorise the reproduction of the work and the sole right to communicate the work to the public "by any process whatsoever, including making it available to the public in such a way that any party may have access at the place and moment he chooses himself". 

In addition, the Belgian Court found that Google's "cache" also infringed Article 1 BCA 1994. The Google "cache" contains copies of all of the web pages examined by Google when searching the internet, with each copy being directly accessible from Google's cache by the public. Typically the cache will be accessed when pages are unavailable or to speed up access to pages from websites which are difficult to access or are overloaded. The Belgian Court held that Google's practice of saving works protected by copyright in its cache and allowing internet users to access these works directly from the cache (i.e. without referral to the original site) constituted an act of reproduction and communication to the public contrary to Article 1 BCA 1994.  

Two management companies which hold and manage a number of photographic and journalistic works in Belgium and a press clippings agency also intervened in the Copiepresse case and claimed damage to their authors' moral rights. The Belgian Court held that the authors' moral rights had been infringed by Google's failure to acknowledge the author of those works and by the modification of some works without the author's consent. However, the Court held that it was the third party interveners' responsibility to notify Google of the identification of the authors of the works concerned together with evidence of the three intervening companies' right to manage the moral rights in the works in question before Google could be forced to remove those works from its cache.

Although the application of section 20 CDPA 1988 has not specifically been tested in the English Courts yet, the Copiepresse case suggests that deep linking may be caught by section 20 CDPA 1988 and it is therefore advisable to obtain the authorisation of the copyright owner before using a deep link to a copyright owner’s website. Whilst it may be open to a website owner using a deep link to argue that the copyright owner offered an implied licence to use a deep link to their work by placing the copyright work on the internet, this argument was specifically rejected by the Belgian Court of First Instance in Copiepresse.

With the continued rise in importance of the internet this is an area of English law which is likely to develop in the future. However, the current approach to whether deep linking constitutes copyright infringement is unclear, especially given a number of recent cases in other jurisdictions.  For example, the Australian Court held in Universal Music Pty Ltd v Cooper  that a website which used deep links to MP3 files on another remote website did not constitute a communication to the public by the linking site and as such there was no copyright infringement. The Australian Court stressed that whilst copyright was infringed by the remote website which stored and made available to the public the  protected MP3 files and the linking website facilitated access to the remote website, the linking website could not be said to be making the protected MP3 files available to the public. The American case of Ticketmaster v Tickets.com echoed this view, holding that deep linking does not of itself amount to copyright infringement although this decision was reached on the basis that there is nothing sufficiently original in a URL to attract copyright. Should the English courts choose to follow the approach taken by the American and Australian courts rather than the Belgian courts in Copiepresse, rights holders may be able to prevent deep links to works on their websites by relying on other intellectual property rights such as trade marks, database rights (provided the linked website qualifies for protection as a database) and actions in passing off.

For further information please contact: Virginia Simkins

Pro-life campaigner loses appeal against conviction for sending grossly offensive photographs to chemists

Veronica Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin)

Veronica Connolly, a pro-life campaigner, sent pictures of aborted foetuses to three chemists in Solihull which sold the 'morning after pill'.  She was subsequently convicted in October 2005 of offences under the Malicious Communications Act 1988 for sending photographs that were indecent and grossly offensive with the purpose of causing distress and anxiety to the recipients. 

Mrs Connolly appealed her conviction claiming that the Act should not apply to communications of a political or educational nature and that to find otherwise was a breach of her human rights to freedom of expression and freedom of religion (Articles 9(1) and 10(1) of the European Convention on Human Rights). 

Lord Justice Dyson and Mr Justice Stanley-Burnton sitting in the High Court had to decide whether communications which were political or educational in nature were exempt from the Act, whether the pictures were indecent and grossly offensive and whether Mrs Connolly's conviction was a breach of her Article 9 and 10 rights. 

The Court considered the matter initially without regard to the European Convention on Human Rights.  It held that the words "grossly offensive" and "indecent" were ordinary English words.  They were not used in a special sense in the Act.  It was impossible to say that no reasonable tribunal could have concluded that the images were grossly offensive.  With some hesitation it said the same of "indecent".  The Court also found that the intention had been to cause distress and anxiety. 

The Court then went on to consider whether Mrs Connolly's conviction under the 1988 Act was a breach of her right to freedom of expression under Article 10(1) of the Convention.  Dyson LJ considered that it was possible to interpret the 1988 Act in a way which was compatible with Article 10 of the Convention.  This could be done by giving heightened meaning to the words "grossly offensive" and "indecent" or by reading into Section 1 a provision to the effect that the section will not apply where to create an offence would be in breach of a person's Convention rights.  Article 10(2) of the Convention provides that the right may be subject to restrictions under a number of heads, including the protection of health and the protection of the rights of others.  The Court held that the interference with Mrs Connolly's freedom of expression, i.e. her conviction, was justified under Article 10(2) for the protection of the rights of others.  The others were the individuals who worked at the three chemists targeted.  They had the right not to have such material sent to them, where the photographs had been sent for the purposes of causing distress and anxiety.  Those individuals had not taken a public position regarding the abortion issue and unlike politicians had no influence on what was essentially a political debate.  The best Mrs Connolly could have hoped for was that the chemists in question would have stopped stocking the morning after pill. 
The Court went on to say that there was no support for Mrs Connolly's submission that freedom of religious expression was of a higher order and regarded as more worthy of protection than the freedom of secular expression enshrined in Article 10.  In any event, her argument under Article 9(2) failed for the same reason as that in relation to Article 10 (2).
Mrs Connolly's appeal was therefore dismissed.

This judgment is important since it clarifies that the terms "grossly offensive" and "indecent" have their ordinary English meaning in the Malicious Communications Act.  Simply because material is sent with a political or educational purpose does not prevent it being deemed grossly offensive or indecent.  It also highlights that Article 10(2) of the Convention protects the rights of others not to receive grossly offensive or indecent material intended to cause anxiety and distress, and that such rights must be exercised at work as well as at home. 

For further information please contact: Catherine Hurst