Stop43.org.uk stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill






Commercial use of Orphan Works, and Extended Collective Licensing of any work, are a breach of Human Rights

The recent ruling in the 20C Fox vs. BT ‘Newzbin2’ case set Stop43 thinking, and we have realised that there is an extremely important ramification of this ruling, that so far the entire Intellectual Property Establishment has ignored: the commercial use of Orphan Works, and Extended Collective Licensing of copyright works, are breaches of authors' Human Rights.

And before we go any further, this ruling is
case law. It is not merely the opinion of a barrister or legal counsel: this ruling is authoritative. It sets a binding legal precedent that BT, the loser in this case, have said they will not appeal. It stands.

IN SHORT

In its entirety, this ruling establishes in UK law that:

The Human Rights Act 1998 restrains the Government from introducing legislation that is not compliant with human rights legislation, and indeed reading Section 6 it may be unlawful for civil servants even to draw up such legislation. When asked at a pre-consultation meeting on 23rd August 2011 attended by Stop43, among others, Matt Cope of the Intellectual Property Office confirmed that new UK legislation must be compliant with the Human Rights Act 1998.

It follows that any proposed legislation to enable the commercial use of orphan works or the extended collective licensing of copyright works, which is intended to result in a copyright holder in practice being 'deprived of his possessions' without his knowledge or consent (which Mr. Justice Arnold has judged to be the consequence for rightsholders of piracy of their copyright work) would breach Article 1 of the First Protocol of the Human Rights Act 1998.

Of course, the Human Rights Act 1998 also safeguards the 'general interest’, and limited exceptions to individual human rights may be made in that interest, subject to the doctrine of proportionality:

The European doctrine of proportionality means that, "an official measure must not have any greater effect on private interests than is necessary for the attainment of its objective".

and

Exactly how the courts should approach issues of proportionality was discussed by Lord Steyn in the case of R (Daly) v SSHD [2001] 2 WLR 1622, in which he said at paragraph 27: "The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

Human Rights obligations transcend economic policy: Reminds all Governments of the primacy of human rights obligations over economic policies and agreements; - United Nations Sub-Commission on Human Rights resolution 2000/77

Are the benefits likely to flow from orphan works legislation and/or ECL so overwhelming that they justify
a) limiting a fundamental right (i.e. copyright), and
b) damaging, if not wrecking, several creative industries?


The key question here, in the Facebook and Twitter era in which anyone with a smartphone becomes in practice an author and rightsholder of work of potential commercial value, and also has moral rights in that work which are protected by international human rights treaties, is this:

How can it be in the interests of the general public to deprive them en masse of their human rights, in the 'general interest'?

Such a thing would obviously be a non-sequitur, especially as alternative ways of satisfying the general interest with regard to orphan works exist such as making lawful the digitisation for preservation, cultural display and cultural use of orphan works, as Stop43 and others advocate, and which would not breach international human rights or copyright law:

Section 42 of the act [CDPA 1988] restricts use of a preservation copy to preserve a fragile item or to replace a lost item. If Section 42 were extended to cover all types of work, whether orphan or not and in any medium, but these use restrictions continued, libraries and archives should be content.’ - Professor Charles Oppenheim, member of JISC Working Group on Intellectual Property Rights, commenting on Will Gompertz’ blog, 16 May 2011 (our emphasis).

Any legislation enabling the commercial use of orphan works or blanket ECL, and therefore breaching our fundamental human rights, would obviously fail the three-stage test of proportionality.

IN DETAIL

Authors' Moral Rights and Copyright are established as universal, fundamental Human Rights by international treaties that oblige their signatories to implement their provisions in domestic law. The UK is signatory to and bound by at least five such treaties:

The Universal Declaration of Human Rights, Article 27:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.


The International Covenant on Economic, Social and Cultural Rights, Article 15:

1. The States Parties to the present Covenant recognise the right of everyone:

(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

The Charter of Fundamental Rights of the European Union, Article 17

Right to property

1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.

2. Intellectual property shall be protected.


Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 1

and

The European Convention on Human Rights, Article 1 of the First Protocol.

In UK law the property rights are expressed in Article 1 of the First Protocol of the Human Rights Act 1998, the wording of which is identical to Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 1, and The European Convention on Human Rights, Article 1 of the First Protocol; and which states:

Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Human Rights obligations transcend economic policy: Reminds all Governments of the primacy of human rights obligations over economic policies and agreements; - United Nations Sub-Commission on Human Rights resolution 2000/77

Let us be clear. As a fundamental, universal human right, copyright and moral rights belong to anyone who ever creates anything, with few exceptions. Opponents of copyright are at pains to obscure this fact and make out that these are a) narrow professional rights and b) that in any case they are invariably taken into ownership by the big corporations. This is nonsense.

20C Fox vs. BT (‘Newzbin2’)

The Hon. Mr. Justice Arnold passed judgement in this case on 28 July 2011. BT have stated that the action was a test case and they will not appeal the judgement. It therefore stands as UK case law, sets legal precedent, and demonstrates that the English courts are prepared to take this problem absolutely seriously and to make human rights their starting point in a judgement in a copyright case. This is extremely important, as it makes it much harder for the government to pretend that it can set aside this country's commitments to human rights when seeking to pass laws that would go against the fundamental principles of copyright.

The judgement rules:

1. This case is about the legal remedies that can be obtained to combat online copyright infringement. The Applicants (“the Studios”) are six well-known film production companies or studios that carry on business in the production and distribution of films and television programmes. The Studios are members of the Motion Picture Association of America Inc, and they bring this application in a representative capacity on behalf of all group companies of the Studios that are owners or exclusive licensees of copyrights in films and television programmes. The Respondent (“BT”) is the largest internet service provider (“ISP”) in the United Kingdom. By this application the Studios seek an injunction against BT pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (“CDPA 1988”).

19. The problem of online copyright infringement is by now a very well-known one. The nature and scale of the problem so far as sound recordings are concerned were eloquently described by Charleton J of the High Court of Ireland in his judgment in EMI Records (Ireland) Ltd v UPC Communications Ireland Ltd [2010] IEHC 377 at [8]-[21].

22. I accept that online copyright infringement is a serious problem for copyright owners such as the Studios and the other rightholders who support this application, but in general it is one whose impact is difficult to quantify with any confidence.

75. The legal context for the present application consists primarily of (a) domestic and European human rights legislation and (b) three European Union directives relevant to copyright enforcement and the domestic implementing legislation [our emphasis]. I shall set out the relevant provisions here. I shall also have occasion to make reference to certain other legislative provisions later in this judgment.

[Note that despite the action being brought under the Copyright, Designs and Patents Act 1988 section 97A, Mr. Justice Arnold includes human rights legislation within the legal context and mentions human rights legislation before copyright legislation.]

76. Section 3(1) of the Human Rights Act 1998 (“HRA 1998”) requires that “So far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with human rights.” Section 6(1) provides that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”, and section 6(2)(a) defines “public authority” as including a court.

77. The Convention rights that are relevant in the present case are those guaranteed by Article 10 of, and Article 1 of the First Protocol to, the European Convention on Human Rights.

164. Before considering this argument, it is convenient to begin with the position with regard to Convention rights adopted by counsel for the Studios in his skeleton argument before the argument was advanced by counsel for BT. This may be summarised in the following propositions. First, the Studios’ copyrights are property rights protected by Article 1 of the First Protocol. Secondly, the right of freedom of expression under Article 10(1) is engaged by the present application.

165. None of these propositions was challenged by counsel for BT.

[This is not surprising. The Theft Act 1968 makes it clear that copyright infringement (a.k.a. ’piracy’) is appropriation, and therefore theft:

Section 3 states:

1. Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

Section 6 states:

1. A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights...

It follows that any legislation which would have the same effect in practice on the owner’s rights of rights-holders and their property as the appropriation described above would legalise such theft, but in so doing breach Article 1 of the First Protocol, as Mr. Justice Arnold’s ruling goes on to make clear.]

183. I do not read Kitchin J as having said that, if the court has jurisdiction to grant an injunction which protects third party rightholders in addition to the applicant rightholders, nevertheless it would be wrong in principle to grant such an injunction. Furthermore, as noted above, it is clear that the matter was not argued before Kitchin J in any depth. In particular, it seems clear that Kitchin J was not referred to any of the relevant jurisprudence under the Human Rights Act 1998. As counsel for the Studios pointed out, it is now well-established that, where the court is aware from the evidence that the Convention rights of persons other than the parties are engaged, then it is not merely entitled, but obliged, to take them into account. This is particularly well-established in the privacy context, where the courts now routinely take into account, and where appropriate protect, the Article 8 ECHR rights of third parties which are engaged: see e.g. ETK v News Group Newspapers Ltd [2011] EWCA Civ 439, [2011] EMLR 22 at [14]-[21].

[With reference to orphan works and the human rights of their absent rights-holders, the above paragraph makes clear that ‘it is now well-established that, where the court is aware from the evidence that the Convention rights of persons other than the parties are engaged, then it is not merely entitled, but obliged, to take them into account.’]

185. In my judgment, subject to the points that remain to be considered, the Studios have established their entitlement to an injunction under section 97A.

200. In general, I am satisfied that the order sought by the Studios is a proportionate one. It is necessary and appropriate to protect the Article 1 First Protocol rights of the Studios and other copyright owners. Those interests clearly outweigh the Article 10 rights of the users of Newzbin2, and even more clearly outweigh the Article 10 rights of the operators of Newzbin2 [our emphasis].They also outweigh BT’s own Article 10 rights to the extent that they are engaged.

In its entirety, Section 6 of the Human Rights Act 1998 states:

Acts of public authorities.

1. It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
2. Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

3. In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
4. F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
6. “An act” includes a failure to act but does not include a failure to
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b)make any primary legislation or remedial order.


Section 6 appears to encompass civil servants, employees of Executive Agencies of the government, and their consultants and sub-contractors in its definition of 'public authority'. Under this section it can be argued that work by such persons in drafting legislation which would in practice have the effect of depriving the public of its human rights is unlawful under Section 6(1) of the Human Rights Act 1998.

As we said earlier, a Spanner in the Works.

  • Article updated 2011/08/27, adding reference to the Theft Act 1968, and paragraph 183 from the Judgement and reference to its application to the rights-holders of orphaned works
  • Article updated 2011/09/01, adding references to the European legal doctrine of proportionality, and the Charter of Fundamental Rights of the European Union, Article 17
  • Article updated 2011/09/11, adding reference to the primacy of human rights over economic policy as expressed in the United Nations Sub-Commission on Human Rights resolution 2000/7