Protection of intellectual property on the Internet

To clarify the issues of protection of copyright and related rights on the Internet in the context of a rapidly changing Russian legislation in the designated area seems reasonable to consider regulation of foreign experience in the U.S., UK, France, Japan and China , countries with different legal systems and approaches.

British protection

Great Britain is a country with Anglo-Saxon legal system (countries of “common law”), where a special role in the system of sources of law is given to legal precedent. In this regard, it is essential to define the role of the law and precedent in the regulation and protection of intellectual property.

In the UK, indeed, there are many precedents operating in the sphere of intellectual property rights. Among them it is worth noting: The Case Sabaf vs MFI; Campbell vs MGN Limited, Regina vs Johnstone, Buchanan vs Alba Diagnostics Limited; Designer Guild Limited vs Russell Williams. Decisions on cases designated concretize provisions of statutes, are the main sources of interpretation of legislation and regulations that allow applying provisions of statutes in practice. At the same time in scientific literature there is a trend of power of law increase in the UK, particularly in the regulation of intellectual property. This trend is in most cases due to the influence of international legal acts on the formation of the British intellectual property rights.¹

A classic example of the protection of copyright in the Internet in UK law is Copyright, Designs and Patents Act 1988. It lists some cases of free use of protected works by libraries and archives (art 38-43), and educational institutions in regard to the passages of published works (art 32). Copies of documents in electronic form are permitted under the license for their use (art 56). Any copying is perceived as a violation of the license, except for backups, which in the case of damage to the original are subject to the original license. Penalties for use, sale, and production of objects protected by copyright and similar acts (art 198) are – from a fine to imprisonment from six months to one year.²

However, as the statute in the UK determines the norm, which must comply with the spirit and the general rule; along with its acts Copyright and Related Rights Regulations 2003 year – a document that brings the UK copyright law to European, abstracts of which are described in Copyright directive.3 In accordance with part 2 of art 8 clause 28A Copyright and Related Rights Regulations 2003 “copyright in the text, except for computer programs, databases, or sources in the original form of literature, painting, music or movies will not be disturbed creating a temporary copy which is the transition or unexpected, which are not the basis and whose sole purpose is to enable: (a) transfer over the network between third party by intermediary, or (b) other lawful use without commercial purpose.

This explanation for the Internet user releases responsibility for the use as the need of license verification arises when accessing certain sites. Texts (in the format of web pages, graphics, etc.), video and pictures from the network are only objects that are passed from user to user, although this does not negate their original legality. Such an approach in the domestic law would help to avoid disputes about transfer and non-commercial distribution of legitimate objects via the Internet (objects which use does not violate exclusive rights of third parties)

The American approach

Another approach to the regulation of copyright on the Internet is used in the United States. Federal copyright law⁴, passed in 1976 allows free photocopying for educational purposes (including reproduction of copies for use in the classroom), professional training or scientific research (article 107), as well as free photocopying by libraries and archives (article 108) most of the protected works. At the same time, despite the lack of a relevant statutory legal act, which governs copyright protection in the Internet, there is a “Digital Millennium Copyright Act”, adopted in 1998 in the United States.⁵ At the moment it is the most progressive document adopted to streamline regulatory protection of copyright in their use in the Internet.

Significant difference of American approach from the English is that in the U.S. limitation of liability for copyright infringement is defined more specifically than in the UK. In accordance with Digital Millennium Copyright Act (sec 202) all objects of copyright that are in the Internet are subject to protection. However, any person is exempt from liability for violations of ignorance inappropriate. Way of notification of the violation may be a letter, telegram or e-mail. And only if within a reasonable time a recipient of notification does not remove copyright object, it can be applied to the rules of liability for infringement, and providers are engaged to remove it from the network. Thus, American law is based on the presumption of ignorance of person who violated copyright law, that there are rights of third parties under the object. And only notice of violation creates the conditions for liability.

Regarding determining object of copyright law, only unique works fall under it that are protected by copyright law. In the U.S., there is a concept of “transformativeness” applied in the network to the non-license use of objects protected by copyright law. Protection is provided only to the original work (full by form originally created by the author), whereas a picture or content of Internet site are usually only copy or part of work. It doesn’t mean that in the United States there are no rules for protection of inviolability of work. At the state level standards on the right to inviolability of work are constructed on the basis of one from the two models. In some states watchdog model is the basis for protection of the interest in inviolability of work, which maximum limits possibilities for changes in work, therefore, grants an author an opportunity to make claims out of rights violations, including in the case of distortion of work as a result of gross negligence. In other states, on the contrary, interest in the protection of work from distortion is provided to the extent that it is able to damage honor and dignity of author, that is, if his authorship remains recognizable and the work itself became public in distorted version⁶.

In accordance with the precedent established by the court decision Feist Publications v. Rural Telephone Service 499 US 340 (1991) it was recognized that in respect of works or compilations that do not conform to the original, violation of copyright cannot be considered. This decision finally put an end in definition of copyright in the United States.⁷ Thus it was recognized that only original work but not copies in the network are protected by copyright law.

With respect to copies of works published the network provisions of the “Digital Millennium Copyright Act” are applied, adopted in 1998, which provides criminal liability for copyright infringement in the Internet. Law on the protection of copyright in the private reproduction presupposes criminal punishment for dissemination of pirated copies of films made before the official premiere⁸. Only penalty in lost benefits is provided for distributing copies of copyrighted information. Norms devoted to two issues established DMCA basis: liability of providers and technical facilities for protection of copyrights.

The main issue concerns definition of a circle of persons who are liable for copyright infringement in the Internet. Vividly this problem is manifested at work of P2P- network, where data from computer of one user can be freely downloaded by another user through the Internet, bypassing the dedicated servers, which are absent under the circumstances.

In connection with this it is worth noting a matter on limitation of liability (Section II DMCA, called “Online Copyright Infringement Liability Limitation Act” or the Law on Limitation of Liability for copyright infringement on the web).

According to the provisions of this section, the provider shall not be liable for copyright infringement by its customers regarding transfer and storage of information. Pending the entry into force of DMCA, providers and administrators of websites very often subjected to liability for copyright infringement by the user when the server provider reproduced illegally obtained copy of the user’s actions content. In accordance with the Copyright Act 1976, section 17 of the United States Code (the 1976 Copyright Act, codified in Title 17 of the United States Code) any reproduction of the object of copyright without permission of the copyright holder was recognized as violation of copyrights. But “safe harbor provision” of the DMCA granted immunity to network provider in case if illegally obtained and published material is loaded by the user, and the provide in turn does not process the specified content and keep server copy. At the same time, it is important to note that the provider shall follow certain requirements to take advantage of such immunity from liability for breach of copyright by the user⁹.

“Safe harbor” provision allows to websites like YouTube, Facebook, which work is based on the content created by the users themselves to act without incurring civil liability for copyright infringement. So in the case of Viacom International v. YouTube, Viacom sued YouTube “for direct … guilty copyright infringement” and claimed damages in the amount of USD 1 billion.¹⁰ YouTube Company “hosting¹¹ on placement of video in the Web allowing users to share their personal and author videos via the Internet through the use of web sites, mobile devices, blogs, and e- mail” stated about release from liability under provisions of “safe harbor”. YouTube representatives argued that the company enjoys immunity from liability, since the burden of monitoring for copyright infringement in the first instance has the right holder and the company is not obligated to search for illegal content on its website. In June 2010 the court ruled in favor of YouTube.

At the same time provider can not rely on the immunity granted in accordance with the provisions of the DMCA “safe harbor”, if the claimant has complied with notification of provider that his website infringes copyrights. So in the case of ALSS can Inc. vs Remarq Communities Inc., there was a question about whether the provider shall be liable for providing access to news blocks containing unauthorized copies of photographs of the plaintiff after it had been notified by the plaintiff, that the website is infringing copyrights. In this case the provider stated that it will remove unauthorized content only after all infringing objects be identified, which given the number of photos was not quite easy to do.

It is worth noting that DMCA provides conditions under which service providers can not be held financially liable for copyright infringement on the web. These conditions imply that:

material is transmitted through the Internet without changing its contents;
service provider does not select recipients of the content;
transfer of material was initiated by someone other than the service provider;
no copies of the materials are created by the service provider during the interim or instantaneous transfer of information;
transfer, routing, provision of connection and storage of materials are carried out by automatic technical process without sampling such materials by the provider.

Using these rules, administrators of torrent trackers are able to avoid liability for infringement of copyright by users.

Despite this, right holders are tend to blame trackers in aiding access to wrongfully disseminated objects of copyright, which is often successful. Such disputes can drag on for years. So in the case MPAA vs. Gary Fung, owner of torrent Isohunt , MPAA filed suit in September 2006 , and the court ruled in favor of the plaintiff in summary order judgment only in December 2009. During this time Isohunt place was taken over by tracker “Pirate Bay”, gaining increasing popularity.¹²

Now RIAA is moving away from its strategy to combat piracy network. Instead lawsuits RIAA intends to influence the users through internet providers, reported Wall Street Journal.¹³ Finding that a user is actively exchanging musical compositions, RIAA sends his provider an email, which the provider either redirects to the user or independently notifies his client about his illegal activities and asks to stop them.¹⁴

If the user does not respond the provider sends follow-up letters accompanied by lowering the rate of exchange of data on the web. If the user does not respond in that case, the provider may completely remove the user from the Internet. This communication method is more efficient because it primarily keeps anonymity of violators in front of RIAA, secondly by doing so it is possible to influence on more violators than at initiating litigation.

In the U.S. there is also practice of courts to consider publishing or posting material on the Web as another form of communication. Thus, the courts apply to cases involving offenses on the Internet legal analysis comparable to those, which would apply to more traditional means of communication.

American courts rule on the basis of the principle of legitimate use in certain circumstances.¹⁵ In this case, the question of whether the use of material protected by copyright, fair use, the courts considers four criteria adopted in the current judicial practice in the United States:

purpose and nature of the use of material;
volume and significance of the share of material on the web in comparison with objects as a whole;
features of copyright objects protected by law;
impact of unauthorized use of the potential market for copyright objects protected by law.

Thus, if all four factors are the arguments in favor of the plaintiff, the court decides about unauthorized use of the product by the defendant. But due to the fact that new information and communication technologies are developing rapidly, the procedure for resolution of such cases is still under development, some of the issues arising in this sphere have not been resolved.

Nobody even thought about development of P2P- networks …”¹⁶ Given these observations, the U.S. lawmakers began to move further attempts to improve legislation on copyright protection in the Internet, including taking into account specifics of sharing files via P2P- networks.

The first attempt to further improve the law became the Combating Online Infringement and Counterfeits Act or COICA, introduced by Senator Leahy on September 20, 2010. Provisions of this act provided the Chief Prosecutor of the State the right to bring action in ram against the owner of a site that violates copyright as well as not only make an order for temporary prohibition of the site, but also make injunction in respect of the offending site.

Later on May 12, 2011 Senator Patrick Leahy together with 11 other co-authors introduced into the U.S. Senate a bill called Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (hereinafter PIPA), which is a rewritten version of COICA, which could give the U.S. government and copyright holders additional tools to block access to websites that violate copyrights especially registered outside the United States.

This bill reproduces provisions of COICA regarding requirement to internet provider about immediate removal of all references to a website recognized as pirate at the request of the Chief Prosecutor of the state. This allows the U.S. Department of Justice and copyright holders to prosecute offenders, even if full investigation is not carried out and the offender has not yet been identified.

On October 26, 2011 Lamar Smith introduced a bill “Stop Online Piracy Act” into the U.S. House of Representatives (hereinafter SOPA). Under the bill any party, including providers, users and advertisers are obliged virtually at any application of right holder stop to provide services to a resource accused of copyright infringement and stop any interaction with it. Otherwise, the party, which has not fulfilled this requirement, will be treated as an accomplice to the offending site.

All attempts by legislators to improve legislation in the field of protection of copyright in the Internet are unsuccessful so far. No doubt because it is not easy to stop the already existing work on every second exchange of information in the global network. Especially when the largest Internet companies stand for protection of freedom of the Internet.

Japanese decision

In Japan the matter about subject composition of offenders was not clearly defined before recently. Earlier in cases involving violation of the rights of authors of P2P- networks, providers and administrators of these networks were held liable. For example, the Tokyo District Court found guilty tracker File Rogue liable for copyright infringement, arguing that File Rogue, and not users profited from of its site.¹⁷ But after and now, in Japan there is a practice to hold liable for copyright infringement end user. Thus, a number of students were attracted to the liability for illegal downloading of content through tracker WinMX.

Resolution of the question about degree of responsibility of Internet providers in Japan has also been reflected in legal acts, in particular in ISP Liability Limitations Act, 2001.¹⁸

According to article 3 (1) of the Act provider is not liable for copyright infringement in the web if only it had not taken steps to transfer information, which resulted in copyright infringement, provided that:

Provider knew that by transferring material using telecommunications network copyrights are infringed;
Provider could not but know (had to know) upon reasonable circumstances that by transferring material using telecommunications network copyrights are infringed;

Also according to article 3 (2) provider is not liable for damages caused to the right holder, if the first has taken all necessary measures to control and ban transfer of material infringing copyright provided that:

Due to justified circumstances provider was confident that transfer of information is illegal and violates copyright;
(1) Upon receipt of the provider application from the owner of copyright infringement and requirements and measures to stop illegal actions of infringer, (2) provider has taken all measures to notify infringer of copyright and claims for termination of their illegal activities, (3) but copyright infringer did not respond to notification of provider and did not terminate activities infringing copyrights within 7 days after receipt of notice from provider.

Also it is worth noting that provisions of article 3 (2) of ISP Liability Limitations Act should be applied in conjunction. That is, even if at interaction of provider with offender at the request of the right holder about removing infringing content provider failed to take proper and necessary measures to control and ban transfer of relevant material conditions for exemption from liability for damages caused to the right holder shall not apply. Thus, first of all provider shall take appropriate action before notification of offender provided that he is confident in violation of copyright by user.

If case of failing to meet the above conditions provider will be civilly liable for damages caused to the right holder.

France and China

French legislation in the sphere of copyright protection follows classical scheme “droit d’auteur”, which recognizes advantage of personal non-property rights of author. French copyright law (Loisur le Droit d’Auteur et les Droits Voisins dans la Socit de l’Information)¹⁹ – “Law on Copyright and Intellectual Property Rights” adopted in 2006 in accordance with (Copyright Directive) European directive on copyright.²⁰ French copyright law protects only object created by intellectual work of author (article 112-1). Objects protected by copyright law made public in the Internet are protected along with other works.

The French judicial practice in cases of copyright infringement in the Internet dates back to 1997, when the decision was made on the case of illegal making public into the network “12 268 poems” of Raymond Kuano. The court decided that Kuano’s son had exceptional and moral right to these poems, so outlawing any publication it in the Internet.²¹ The decision was a precedent, since the law does not contain articles that would directly prohibit information contained in the Internet.

Unlike most countries copyright infringement in France is exceptionally a criminal offense (article 335-2, 335-4). It is punishable by a fine of EUR 300 000 and a term of imprisonment of up to three years; for committing a crime by an organized group the fine is EUR 500 000 and imprisonment of up to five years. Trends in development of protective norms in France lead to a tightening of liability and not for introducing norms of regulatory nature acting in the United States and England. This is typical to the countries of the concept “droit d’ auteur”, but does not lead to regulation but to violation of rights and freedoms of citizens to access and use.

Tendency of the French copyright legislation supports Chinese copyright law, which is characterized by providing more rights to foreign authors, than the citizens of the People’s Republic of China. For objects of copyright was provided mandatory registration. Copyright Act “Copyright law of the people’s republic of China” was adopted in 1990.²² Amendments to it were made once in 2001. The scope of the law extends to oral and written works, audio and video products, artwork, software, etc.

During practice activity in China a model of protection of intellectual property rights has developed, which is characterized by parallel implementation of administrative and legal protection. State policy on the issue of content filtering of the Internet is to give public and individual services to protect against harmful and illegal “content”. Content filtering is a technology that provides screening pornography, information of narcotic nature, viruses and spam. According to experts , this approach to copyright protection is unacceptable, since it leads to blocking providers of network segments, thus blocking user access not only to counterfeit objects of copyright.²³

Since in accordance with article 8 of the WIPO Copyright Treaty actions internet providers cannot be regarded as communication to the public, otherwise it will be imposed a duty on internet provider to verify all information passing through their infrastructure or stored on it.

Comparative analysis of regulations in the sphere of protection of copyright in the Internet acting in the USA, UK and France showed that regulation by the legal norms acts here in the most effective and efficient manner, as these rules come from the whole of society and govern its basic relationship.²⁴ This means that in case of violation of objective rights a state has possibility of legal enforcement. Enforcement mechanism is used to restore violated right, has protective and educational functions. In the People’s Republic of China copyright in the Internet is prohibitive, allowing on the one hand to better protect copyright owners and on the other – deprives Internet of basic networking principles: decentralization and freedom of information dissemination. Since providers are considered to be responsible for content in the network, they have to close entire network segments to prevent probable rights violations, thereby violating citizens’ right to free access to information.

It follows from the experience of legal regulation and protection of copyright in the Internet in foreign countries that for improving legislation of the Russian Federation the following provisions have been useful:

transfer of information and facilities protected by copyright from one person to another through the Internet is not a violation of rights of author (except for computer programs, databases or sources in their original form – literature, painting, music or movies). Main content of the Internet – texts, video and pictures are just objects that are passed from user to user.
copyright protection in the Internet is done without limiting rights to copy, transfer, share and receive any information. The law also acts as a regulator of relations, it tends to normalize relations without creating disputes by informing the user about the distribution and requirements of its termination. And only in case of refusal to obey the law, this conduct constitutes an offense;
the problem of determining jurisdiction in matters of copyright infringement in the Internet can be resolved by:

concluding international agreement on jurisdiction in respect of activities using the Internet, on which it is necessary to define criterion for the state’s jurisdiction for each common type of relations;
unification of substantive law. If related types of Internet relationships will be protected in various states to the same extent, the choice of jurisdiction is not crucial;
concluding international agreement determining applicable law to different situations (the right of the country where server is located or defendant). But this system will be effective only at simultaneous unification of legislation in most countries; otherwise defendant will be able to use the most convenient right for it.

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