General liability under copyright law
Internet service providers offer a wide range of services, such as providing internet access, email services or hosting websites. By doing this, internet service providers risk infringing copyright and related rights, though some measure of control will be provided in agreements entered into with their subscribers, such as requiring the subscribers to comply with copyright law and to not make copyrighted material available to others. Temporary copying will be allowed under s28A of the Copyright, Designs and Patents Act 1988, as inserted by Regulation 8 of the Copyright and Related Rights Regulations 2003. Under s28A, copyright is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable:
a transmission of the work in a network between third parties by an intermediary; or
a lawful use of the work;
and which has no independent economic significance.
The section applies to all forms of copyright work other than computer programs, databases and broadcasts, and rights in performances. For internet service providers, this means that they are not liable for infringement if a work is transmitted by one person to another through the provider’s equipment. It also covers caching, that is, the temporary storage of data for quick retrieval, such as when a website page is stored temporarily in the cache so that it does not have to be uploaded again from a server when browsing a website. Having said all that, internet service providers may be liable for copyright infringement in three main ways, namely through secondary infringement, by authorising infringement, or by joint infringement.
Section 24 of the Copyright, Designs and Patents Act 1988 deals with secondary infringement by providing means for making infringing copies. Under s24(2) ‘copyright in a work is infringed by a person who without the licence of the copyright owner transmits the work by means of a telecommunications system (otherwise than by broadcasting or inclusion in a cable programme service) knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the United Kingdom or elsewhere.’ The important exception in this section is that the transmission must not be to the public, including making a transmission available to the public in a way which allows them to access the transmission when and where they choose. Consequently, it seems that material on a website, which can be accessed at practically any time or place, will be outside the scope of s24(2), so this section is likely not applicable to internet service providers.
Under s16(2) of the Copyright, Designs and Patents Act 1988 ‘copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.’ As long as the infringing act occurs in the United Kingdom it is irrelevant where the authorisation comes from (see ABKCO Music & Records Inc v Music Collection International Ltd ). Authorisation is interpreted broadly, and indifference or failing to act may be considered authorisation. An internet service provider which fails to inform its subscribers of copyright law and that copyright must not be infringed may be seen as authorising infringement.
Joint infringement is when two or more people act together with the aim of infringing copyright. There may be an argument that an internet service provider could be a joint infringer with one or more of its subscribers who make infringing material available though the internet service provider’s equipment. Internet service providers should monitor and control the material which is being made through their service, but the volume of material involved renders this an impossible, or at least impractical, task. Reasonable controls, however, ought to be undertaken, and subscribers should be informed about copyright infringement.
Internet service providers and illegal material
The Electronic Commerce (EC Directive) Regulations 2002 provide a defence for internet service providers where illegal material has been stored on or transmitted through their service. Under Regulation 17, (the mere conduit defence) ‘where an information society service is provided which consists of the transmission in a communication network of information provided by a recipient of the service or the provision of access to a communication network, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that transmission where the service provider:
- did not initiate the transmission did not select the receiver of the transmission; and did not select or modify the information contained in the transmission.
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