Intranet usage at a UK University

[snake79]

Hi all,

My question is regarding the intranet of a UK University. They have recently expanded efforts into more social networking, online shopping and general online communication.

Some of the students (in journalism) have been posting reviews on topics on interest, with links to newspaper articles which are published on external websites, online magazines and newspapers.

My question is 1) is this infringement of IP rights and 2) is the University liable as owner of the platform?

Thank you in advance!

[AndyJ]

Hi snake,

Publishing links does not normally infringe copyright in the original articles. We have a number of recent decisions by the Court of Justice of the European Union which confirm this (Svensson, Bestwater (not available in English), and C More Entertainment). The only time when this practice might amount to infringement is if the writer posted a link which was intended to circumvent a paywall or similar restriction requiring a login etc.

And in the event that someone did publish something which infringed copyright on the University intranet, the University would not be liable unless it had failed to expeditiously remove the material concerned once it was made aware of the existence of the infringing material. There is no requirement for a hosting service etc to pro-actively monitor for such things. This so-called safe harbour protection arises from Articles 12 - 15 of the eCommerce Directive 2000/31/EC, and is broadly similar in nature to the US Digital Millennium Copyright Act (DMCA).

[snake79]

Thank you for your reply AndyJ.

Would the Copyright, design and patents act (1988) also come into play. Specially chapters 4 on moral rights and 5 on dealing with rights in copyright works?

I'm also thinking some of the international framework surrounding this has been codified into UK law, such as the Berne convention and Trips. So i could also apply that right when doing a legal risk assessment?

Thank you in advance.

[AndyJ]

Would the Copyright, design and patents act (1988) also come into play. Specially chapters 4 on moral rights and 5 on dealing with rights in copyright works?

I'm not quite sure what you are asking about here. In the example you quoted above, in which someone links to material on another site like that of a newspaper, there's no copying and so the CDPA is not engaged. When you provide a link to an external site, the user's browser actually fetches the material linked to from the site hosting the material, and transfers it to the user's device or computer. It does not go via, nor does it ever need to be stored on, the linker's computer (the University intranet in this case). The only copy which is made is on the user's screen, and the CJEU have ruled that as long as the user takes no action the save the material, the copy on screen is not an infringing copy. This is reflected in UK law by section 28A.

I'm also thinking some of the international framework surrounding this has been codified into UK law, such as the Berne convention and Trips. So I could also apply that right when doing a legal risk assessment?

Again, I don't understand which right you are talking about here. You correct that the UK has signed up to the Berne Convention, and TRIPS and quite a few other international treaties concerning copyright, and the CDPA has been drafted or amended so as to reflect its obligations under these treaties. A legal risk assessment would need to take account of the main provisions of the CDPA, both the those activities which may infringe copyright (Chapter II), and the exceptions (Chapter III) which may mean that what at first sight appears to be infringing, is actually permitted. Chapter IV (moral rights) may be invoked by some of the fair dealing exceptions contained in Chapter III. Chapter V is all about the correct way to get permission (usually, a licence) to use someone else's copyright work, and so I suggest that it would not form part of a risk assessment

[snake79]

That makes perfect sense.

One question however, CDPA 20, Infosoc 3 which states:

'Electronic transmission to an audience which is not present in the same place where the transmission originates'

So if i were to place a link online onto the platform, surely this article would come into practise?

Apologies for all the questions, but you're being such a great help!

Thanks again

[AndyJ]

Hi snake,

If I tell you that Adele is on at the O2 on the 22nd April and that you can get tickets for the performance at Joe's Ticket Emporium (she's not and you can't) that would be doing much the same as a link. You don't have to follow up my advice and get ripped off by Joe's exorbitant prices, and in most cases you don't have to click on a link. And even if an embedded link serves up the content automatically, you, the person who provides the link, are not making an unauthorised copy, you are directing the user's browser to a place where the content is held. In the cases in the CJEU I referred to in an earlier posting the court said that linking and framing does not amount to making a work available to the public as long as: a) no technological barriers such as paywalls are circumvented by the link, and b) the linker does not knowingly link to a work which they know to be infringing. This last provision only applies where the linking site is being run for profit (see the GS Media case).

This doctrine applies whatever the type of copyright work. Section 20 CDPA was originally designed to cover an infringing re-transmission by cable or radio signal of broadcast TV or radio. With the advent of catch-up services such as iPlayer the section was widened to include re-transmissions via, for example, the internet. However this section would only apply if the source of the work was not authorised by the owner of the copyright. Exactly this situation has recently been covered in a case before the High Court involving the Football Association Premier League (FAPL) and several ISPs. In this instance FAPL were successful in getting an order from the court requiring the ISPs to block various sites which were streaming Premier League matches without permission. Clearly in this case the FAPL did not have to do much to prove that these streams were unauthorised. And in circumstances like that, I think it would be fairly easy to show that someone who linked to one of the servers providing the streaming content would also be well aware that the content was infringing, thus they would be making a communication to a part of the public which the copyright owner had not given permission for. In Svensson and Bestwater, the CJEU referred to this as being a communication to a 'new public' which the owner had not envisaged when he authorised a more limited availability of his work (say to subscribers to BT's service for the FAPL games). Contrast this to another case involving FAPL, where they objected to a pub in the UK showing Premier League games using a genuine decoder card which allowed access to a European satellite broadcast available to viewers in Greece, which was considerably cheaper than the UK Sky version of the game. The courts (including the CJEU) found that this practice was legal because effectively the same product was being offered to both audiences and both were authorised by the FAPL, the only difference being that Sky charged more for licences in the UK than the other company (Nova) did in Greece, and the CJEU said that this contravened the principle of the free movement of services within the EU. (Needless to say, since that case FAPL have changed the way they offer the service to different licensees across Europe).

[snake79]

Thanks AndyJ for all the help given!

[snake79]

Hi all,

I have another question regarding intranet usage at a UK based university.

If students were to post comments on the forum about football, along with some of the posts containing short footage (say 10 seconds) from a tv broadcast of the match which is being discussed.

Would this be considered infringement at all?

Thanks in advance.

[AndyJ]

Hi snake,

If the short clip (as opposed to the actual football game itself) was the subject of critical comment or review by a contributor, then yes it might qualify as fair dealing. However a game of football (or indeed any sport) is not something which can be protected by copyright. This means it cannot be the subject of the comment or criticism, because the Act clearly states that the exception for the purpose of criticism or review must be "of that or another work or of a performance of a work," where 'work' here means a copyright work.

However if the criticism etc is of the broadcast - say some poor choices of camera angles or a shot of faces in the crowd at exactly the time a crucial goal is scored - then that would be a suitable use of the fair dealing exception.

There is a slightly tenuous argument which says that a very recent football match would amount to a 'current event' and therefore using a clip might fall within the section 9(3) news reporting exception. This is pretty dodgy ground though. Given that the organisation who would be opposed to such activities - the FAPL - is extremely litigious, you might need a very good barrister to make that argument work!

In any event, for any such use to fall within a fair dealing exception, it would be essential that no more of the broadcast than was necessary was actually copied (and here I think 10 seconds probably fails to meet that criterion) and that a proper acknowledgement of the source was given. Bear in mind that while Vine still existed the FAPL vowed to try and stamp out even 6 second videos (of course, there were no copyright infringement of any TV broadcast in the Vine recordings) appearing in social media. Therefore if this is anything other than a hypothetical question, don't be surprised if the University gets a few DMCA takedown notices!

[snake79]

Hi Andy,

Couple more questions. Sorry to keep bothering you with all this!

If users were to sell and buy clothes, both new and second hand on an auction (think eBay) style basis. Also some of the goods are imports from overseas countries.

What kind of infringement would the university potentially be facing? The platform does allow for online shopping amongst the students, but if say some of the goods were counterfeit for example, then we are liable if we don't actively remove this content right? (Btw this is all from a UK perspective)

Thank you in advance.

[snake79]

Done abit of digging, so i believe the Trade Marks act 1994, s.97 and 98 will be the statute law.

And judging from your previous reply, the platform should not be hosting that type of content but its the users whose responsibility it is to not sell anything which may copyright infringing in terms of counterfeit.

Any other angles i may need to address?

Thanks in advance!

[AndyJ]

Hi snake

The EU directive on eCommerce (Directive 2000/31/EC*) provides so-called information society providers (ISPs) a high degree of protection from liability from all forms of infringement where the operator of the site has no knowledge that infringing content has been uploaded by users, and remains non-liable as long as they act expeditiously to remove the content once informed of it. Furthermore an ISP is not required to actively monitor what is placed on its site, or which passes through its telecommunications, in order maintain this freedom from liability. (See Articles 12 - 15 of the Directive).

An ISP in this context means any service, like eBay, Youtube at one end of the spectrum down to forums such as this, and comments pages which are not pre-moderated. It would certainly apply to the proposed use of your university intranet.

But to make sure that the university, or whoever is responsible for the auction part of the site, can react quickly in the case of an allegation of infringement it is best to set up a simple means for users or complainants to contact the operator. So for instance a button to click on all pages to which to public has access, clearly marked with its purpose, leading to some sort of form to record the details. Unlike the US DMCA system, the European system has no set format for how to report infringement, but clearly there are some basic details which ought to be obtained.


*The Directive was brought into force in the UK by the The Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013).