What general liability is there under copyright law?
Internet service providers (ISPs) offer a wide range of services, including internet access, email services and website hosting. This means ISPs risk infringing copyright and other intellectual property rights, though some measure of control is provided by way of agreements with their subscribers, such as requiring subscribers to comply with copyright law and to agree not to make copyrighted material available to others.
Temporary copying is permitted under s28A of the Copyright, Designs and Patents Act 1988 without the risk of infringement. However, it must be a temporary copy which is transient or incidental; it is an integral and essential part of a technological process; and its sole purpose 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
This applies to all forms of copyright in literary work, other than computer programs, databases and broadcasts, and rights in performances. For ISPs, this means they are not liable for infringement if a temporarily copied work is transmitted by one person to another through the ISP’s equipment. It also covers caching, ie. 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.
However, ISPs may be liable for copyright infringement by secondary infringement, by authorising infringement, or by joint infringement.
What is secondary infringement?
Secondary infringement occurs on the transmission of a work, without permission of the copyright owner, through a telecommunications system (other than by broadcasting or within 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 UK or elsewhere. Also, the transmission must not be to the public (section 24 Copyright, Designs and Patents Act 1988).
Under section 24, there is also secondary infringement where someone provides the means to make infringing copies. There are further circumstances in which there is secondary infringement, for example, someone imports (other than for their private and domestic use) an infringing copy of a copyright work which they have reason to believe is an infringement.
What is authorising infringement?
Copyright is infringed by someone if they authorise another person, without the copyright owner’s permission, to do any act which is restricted by the copyright. So long as the infringing act occurs in the UK, it is irrelevant where the authorisation comes from (see the ruling in ABKCO Music & Records Inc v Music Collection International Ltd ). Authorisation is interpreted broadly, and includes giving implied permission, or by tolerating or supporting an infringement which they had the power to stop.
As far as ISPs are concerned, authorised infringement would include circumstances where an ISP enables its subscribers to infringe copyright, or ignores a subscriber’s infringement knowing they are infringing copyright in a work.
What is joint infringement?
Joint infringement is when two or more people act together with the intention of infringing copyright. It is arguable whether an ISP could be a joint infringer with one or more of its subscribers who make infringing material available through the ISPs equipment. ISPs should monitor and control the material available through their service, but the volume of material involved means this would be an impossible and impractical task. Reasonable controls, however, can and should be implemented, and subscribers informed of copyright infringement.
ISPs and Illegal Material
There is a defence available for ISPs under the Electronic Commerce (EC Directive) Regulations 2002 where illegal material has been stored on, or transmitted through their service – ie. where the ISP is a ‘mere conduit’. So long as the ISP did not initiate the transmission, or select the receiver of the transmission, and did not select or modify the information contained in the transmission, the defence will apply. If the defence is not made out, the ISP could face criminal sanctions, and or damages.
There is also protection for business which cache copies of websites in providing access services. ISPs will not be liable if such cashing is “automatic, intermediate and temporary for the sole purpose of providing a more efficient service” – so long as the ISP does not modify that information. The ISP must also comply with further responsibilities, including conditions on access to the information, and any rules regarding the updating of the information, and to not interfere with the lawful use of technology (widely recognised and used by industry) to obtain data on the use of the information. They must also act expeditiously to remove or disable access to the information stored when put on notice, for instance, the court has ordered its removal or disablement.
As for hosting, if the ISP stores user information, the ISP may be able to rely on an exemption for online hosts to avoid liable for any criminal sanctions. However, that ISP must have no actual knowledge of unlawful activity or information; and when they do obtain such knowledge, the ISP must act expeditiously to remove or disable access to the information. Also, the recipient of the service must not have been acting under the authority or the control of the ISP, otherwise this exception cannot be relied on to avoid liability.