Aggressive Protection of IP, and the High Court ruling on the Digital Economy Act

May 9, 2011

The IPKat, reporting from the Fordham IP Conference, recently noted the upbeat tone of the keynote delivered by Victoria Espinel, White House IP Enforcement Coordinator.  While new technology may have rendered effective copyright enforcement a daunting prospect, and in the minds of some a losing battle, Espinel’s keynote at the conference, and the Obama Administration’s recent White Paper strike a different chord.  Indicative of the new low-tolerance approach to IP infringement, are the words of Preet Bhara, U.S. Attorney for the Southern District of New York:

Aggressive protection of intellectual property is essential to America’s current economic prosperity and future success

Proposals aimed at clamping down on IP offences by the Obama Administration in the White Paper on Intellectual Property Enforcement Legislative Recommendations are varied and far reaching, recommending a raft of changes including:

1. The use of wiretaps in cases of copyright and trademark infringements
2. Clarification that unlawful streaming of copyright material is a felony
3. More serious penalties for repeat IP offenders
4. The creation of a new US right of public performance for works broadcast over-the-air

These are just some of the proposed reforms aimed at tackling what some consider to be an increasingly relaxed public attitude towards piracy and IP infringement.  The problem of how to enforce copyright online is significant to businesses in a wide range of fields, and a proper understanding of the relevant issues can be a considerable advantage when deciding if, and how to distribute content.  This is the motivation behind an upcoming webinar to be delivered by Azrights: Controlling Copyright in the Cloud.

Digital Economy Act Update

Meanwhile, the UK High Court recently rendered its opinion following the application by BT and TalkTalk for judicial review of the DEA and Copyright (Initial Obligations) (Sharing of Costs) Order 2011.  You might recall that our earlier post touched on the compatibility of the Act with European law, now the results are in (the case report is available here).

Of the objections raised by the Telecoms providers, only one was accepted by Justice Kenneth Parker, while four claims were dismissed confirming the courts view that the law is consistent with European legislation. The successful claim concerned an obligation on ISPs to bear a proportion of the costs involved in implementing the new legislation, and a number of parties have expressed dissatisfaction not only at the rejection of the remaining issues but at the degree of success that this claim enjoyed.  While elements of the charges to be borne by ISPs relating to Ofcom’s setting up, monitoring and enforcement of the rules were found to be unlawful, the judge maintained that they would remain liable for a significant proportion of the costs of operating the system and the appeals process – a burden likely to lead to higher prices for consumers, possibly to the extent that tens of thousands of people may be excluded from faster broadband access.

Data Protection

Of particular interest to this writer, is that the Judge makes the case for the classification of IP addresses as personal information.  The reasoning behind this is that, despite the IP address only identifying an internet connection (or an internet subscriber) rather than a particular user, it may still constitute personal data because:

the subscriber, who can be identified through the dynamic IP address, is inevitably linked to the data … as the person who, in a broad sense, has facilitated the infringement.

The suggestion here is that IP addresses, coupled with information about the time particular material was accessed by a subscriber assigned that address, may themselves be protected under Data Protection law.

This ruling is a significant blow to opponents of the Act, but the AG’s opinion in Scarlet v. SABAM, continuing efforts by the Open Rights Group, and the possibility of appeal by BT and TalkTalk mean that the future of the Act is far from certain.  The Initial Obligations Code, which sets out in more detail the operation of the Act, has yet to be published, and the Costs Order will now need to be reviewed in light of the decision.  So, it is likely to still be some time before we can expect to see the full impact of the law.