Introduction

In June of this year, we sent out an alert about the anticipated new UK copyright infringement exceptions. These exceptions were to be introduced based on the recommendations of the Hargreaves Review. Surprisingly, some of the exceptions had been dramatically pulled from the legislative slate at the last minute. However, the UK government has now upheld its subsequent promise to re-publish the statutory instruments for the infringement exceptions for (1) personal use, (2) parodies and (3) quotations, with new legislation on all three subjects that came into force on October 1, 2014.

Almost in parallel, a European ruling and an Advocate General opinion have helped to prepare for the arrival of the two statutory instruments, with commentary on (i) the scope of parody and (ii) in relation to personal use, the impact of copyright levies.

The New Legislation

Two new regulations have come into force, amending the Copyright, Designs and Patents Act 1988 (the “CDPA”) to include new exceptions for copyright infringement. The first – the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 (the “Quotation and Parody Regulations”) – extends the provisions for quotations of copyright-protected works (having previously only been available for criticism and review), and creates a new provision for parodies.  The second regulation – the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (the “Personal Copies Regulations”) – concerns making copies of copyrighted works for personal use.

Quotation

From October 1, 2014, the free quotation of copyright protected works is no longer limited to reporting current events or to works of criticism or review. The Quotation and Parody Regulations, inserted into the CDPA as section 30(1ZA), now permit quotation for any purpose, provided that:

  • the work quoted has been made publicly available;
  • the use of the quotations constitutes “fair dealing” with the work;
  • the extent of a quotation is no more than is necessary for the purpose; and
  • the quotation is accompanied by sufficient acknowledgment to the copyright owner (unless this is impossible).

The UK Intellectual Property Office has stated that this amendment will help to save costs on copyright clearance, support free expression and align UK law with the rest of Europe. However, as anticipated in our previous alert, the Quotation and Parody Regulations do not provide a definition of “quotation”, or guidance as to how extensive a “quotation” is allowed to be. This may place undue pressure on the meaning of “fair dealing” as UK courts seek to define the scope of the exception.

Parody

The new exception for parodies allows fair dealing with a work for the purposes of caricature, parody or pastiche (section 30A of the CDPA) and provides that fair dealing with a recording or performance  (section 2A to Schedule 2 of the CDPA) for the purposes of parody does not infringe copyright conferred in the performance or recording. This change now means that the permission of the copyright holder will no longer have to be obtained, provided that the use of the original work is fair and proportionate.  This is good news for British comedians and artists, it would seem, unless, of course, it is their work that is being parodied.

However, an EU court ruling on parodies in September 2014 has already placed some restrictions on the new legislation. In Deckmyn v Vandersteen C-201/13, the Court of Justice of the European Union (the “CJEU”) defined a parody as something that evokes an existing work while being noticeably different from it and constituting an expression of humour or mockery. The CJEU also stated that national courts must strike a balance between copyright owners’ interests and mimickers, and that copyright owners have a legitimate interest in disassociating their work from a parody, if the parody involves a discriminatory message.

This creates a whole new checklist for UK courts to consider, alongside the usual fair dealing test. Judges will have to also hold a view on whether the parody (i) strikes a fair balance, (ii) differs noticeably from the original work, and (iii) is sufficiently humorous. In particular, the last of these requirements may worry budding parodists, who could end up having to justify their comedy in front of a very different audience than first intended.

Continue Reading Copyright: Europe Explores Its Boundaries – New UK Infringement Exceptions – The Ones That Came Back Again

On 5 June 2014 the European Court of Justice (CJEU) published its decision in the “Meltwater” Case C-360/13, (Public Relations Consultations Association Ltd (PRCA) v Newspaper Licensing Agency Ltd (NLA) and Others). In a ruling that some have hailed as a victory for common sense, the CJEU declared that browsing freely accessible copyrighted material on the Internet does not constitute a copyright infringement, and on-screen and cached copies will constitute temporary copies for the purposes of Article 5(1) of the InfoSoc Directive ( EC Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society (“InfoSoc Directive”) was introduced in 2001 to meet the challenge of the Internet, e-commerce, and digital technology).

Background

The case concerns the PRCA, which is an association of public relations professionals, and the NLA, which is a body set up by UK newspaper publishers for the purpose of collective licensing of newspaper content. The PRCA’s members use a media monitoring service offered by Meltwater which involves Meltwater sending emails to users containing headlines of articles which are then linked to the rights holder’s website. Users can also access search results on Meltwater’s website. (It should be noted that if a website has a paywall, the user will have to pay for access to the material on the same terms as everyone else – the link does not enable the user to avoid the paywall.)

The NLA argued that Meltwater’s customers needed various licences to access the rights holder’s material, including: (i) a licence to use the temporary on-screen and cached copies of search results created when the user viewed search results on Meltwater’s website and (ii) a licence to use the temporary on-screen and cached copies of an article created when the user clicked on a link and viewed an article on the rights holder’s website. The PRCA claimed that these temporary copies fell within the copyright exemption detailed in Article 5(1) (as transposed into UK law by Section 28A of the Copyright, Designs and Patents Act 1988).

Article 5(1) provides an exemption from copyright infringement based on the following cumulative conditions where:

  • Copying is temporary.
  • Copying is transient or incidental.
  • Copying is an integral and essential part of a technological process (i.e., (1) the acts of reproduction are carried out entirely in the context of the implementation of a technological process and (2) the completion of those acts of reproduction is necessary, in that the technological process could not function correctly and efficiently without those acts).
  • The sole purpose of copying is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work.
  • Copying has no independent economic significance.

Both the UK High Court and UK Court of Appeal agreed that PRCA members needed a licence from the NLA in order to receive the Meltwater service. The PRCA appealed to the UK Supreme Court.

Continue Reading Copyright: Europe Explores its Boundaries Part 3: “Meltwater” – EU rules that browsing does not need a licence – a victory for common sense (or for pirates)?

The latest issue of our Socially Aware newsletter is now available here.

Welcome to a special privacy issue of Socially Aware, focusing on recent privacy law developments relating to social media and the Internet. In this issue, we analyze a controversial European ruling that strengthens the right to be forgotten; we examine a recent California Attorney General report regarding best practices for compliance with the updated California Online Privacy Protection Act; we summarize the FTC’s recent settlement with Snapchat and its broader implications for mobile app developers; we report on a case filed by a French consumer association accusing three major social networking sites of using confusing and unlawful online privacy policies and terms of use; and we highlight the growing popularity of anonymous social apps and the security risks that they pose.

All this–plus a collection of thought-provoking statistics about online privacy…

Following our post on U.S. lawsuits concerning the ownership of LinkedIn and Twitter accounts, we report on a recent United Kingdom High Court ruling that considered who was entitled to operate four LinkedIn Groups, and other UK cases that have addressed related issues.

Before we describe the High Court’s ruling, it is important to provide a bit of background.  As with other social media services, opening a LinkedIn account requires an individual to enter into a contract with LinkedIn.  LinkedIn’s User Agreement prohibits account holders from transferring their accounts to another party.  Strictly speaking, then, the question is less one of, “Who owns a given LinkedIn account?” than the equally important question of who owns or controls the contacts accumulated by that account:  are those contacts the confidential information of the account holder’s employer, or are they the property of the account holder himself or herself?  And what about LinkedIn Groups, described on LinkedIn as “a place for professionals in the same industry or with similar interests to share content, find answers, post and view jobs, make business contacts, and establish themselves as industry experts”?  Does an employer have any proprietary interest in a LinkedIn Group that was set up and operated by an employee in connection with his or her employment, once that employee leaves the company?

Before third-party networks such as LinkedIn existed, the position in the UK with regard to the ownership of company contact lists and databases was relatively straightforward:  materials created during the course of employment are owned by the employer and are the employer’s confidential information.  However, in the social media context, the position is not so clear-cut.  If employees are encouraged to use LinkedIn in connection with their employment and so accumulate contacts, can the employer prevent employees from using those contacts when their employment terminates?

Although there is not, as yet, any definitive UK legal authority on the issue, two cases now give an indication of the position that the UK courts will likely take on this issue.

First, back in 2008, in the UK High Court case of Hays v Ions, Mark Ions, a former employee of recruitment company Hays, was ordered to hand over details of contacts that he had migrated from his work email address book to his personal LinkedIn account.  Hays had alleged that Ions transferred the contacts while working at Hays with a view to their subsequent use in connection with his own rival business.  Ions argued that Hays had encouraged his use of LinkedIn to connect with clients and that, once the Hays contacts accepted his own LinkedIn invite, those contacts ceased to constitute Hays’ confidential information because the information was then accessible to others on LinkedIn.  The court did not accept Ions’ argument and noted that, even if Ions had had permission to use client email addresses to connect with clients, it was unlikely that this extended to the use of such information outside his employment with Hays.

Despite ordering the disclosure of the Hays contacts and all emails and documentation relating to such contacts and any business obtained from them, the judge in that case held that Ions was not required to disclose all of his LinkedIn contacts to Hays because those contacts could include many persons who had no contact with Hays.  This suggests that the judge accepted that the entire LinkedIn account, although originally operated by Ions in the course of his employment, was not material proprietary to Hays, his employer.

We now have a second court ruling in the UK relating to the ownership of LinkedIn accounts.  In July 2013, the UK High Court considered who was entitled to operate four LinkedIn Groups that had been set up by an ex-employee when that employee left the company.  In Whitmar Publications Ltd v Gamage, Wright, Crawley and Earth Island Publishing Ltd, three employees had resigned from Whitmar to work for Earth Island, a rival publishing company that the employees had set up a few months earlier.  Whitmar alleged that the defendants had taken steps to compete against Whitmar while still employed by the company, in that they had misused Whitmar’s confidential information, infringed its database rights and breached their terms of employment.  Concerning the LinkedIn Groups at issue, Whitmar claimed that although the Groups had been managed by Ms. Wright—one of the former Whitmar employees—on behalf of Whitmar as part of her employment, the defendants had used them for the benefit of their rival business while still employed by Whitmar.  Whitmar sought an interim injunction to prevent the defendants from using, exploiting or divulging to any third party any of the information contained in these LinkedIn Groups.  Given that this was an emergency application, the court made a preliminary assessment of the evidence only.

The court agreed that Whitmar had a strong case that the defendants had been actively competing against Whitmar while still employed by it, in breach of the terms of their employment.  Further, the court rejected Wright’s claim that the LinkedIn Groups were personal to her and merely a hobby; Wright was responsible for dealing with the LinkedIn Groups as part of her employment duties at Whitmar, and the Groups operated for Whitmar’s benefit and promoted its business, as evidenced by the fact that Wright had used Whitmar’s computers to carry out her work on the LinkedIn Groups.  The judge also agreed that information contained within the LinkedIn Groups appeared to have been used as the source of the email addresses used to publicize an Earth Island launch event.

Ultimately, the court granted an order requiring the defendants to facilitate the exclusive access, management and control of the LinkedIn Groups to Whitmar, ordering the defendants not to access or do anything that would prevent Whitmar from accessing the Groups, and preventing the defendants from using, exploiting or divulging to any third party any of the information contained in the Groups.  In effect, the judge decided that Whitmar had a good chance of succeeding at full trial based on the available evidence.

Since the judgment in the first phase of the case, the parties have entered into an out-of-court settlement that, according to Whitmar’s website, means that the ex-employees will not enter into or fulfill any contract with a number of Whitmar clients or customers until December 20, 2013.  The ex-employees have also returned control of a number of Linked-In Groups to Whitmar.  Unfortunately for legal purists, but maybe happily for the parties, as a result of the settlement we won’t now get to know how the court would have ultimately ruled at full trial.

It is also worth noting that, in 2012, a UK employment tribunal case, Flexman v BG Group, raised an altogether different issue related to an employee’s use of LinkedIn: can an employee in the UK be dismissed for using LinkedIn to search for job opportunities?

In the first case of its kind, the tribunal ruled that John Flexman, an HR manager at BG Group, had been constructively dismissed following a dispute concerning his LinkedIn account.  BG Group had claimed that Flexman breached its social media policies by uploading his CV to LinkedIn and ticking the “career opportunities” box on his LinkedIn profile.  It also accused Flexman of breaching confidentiality by stating on his CV that he was assisting the company in reducing its “attrition rate.”  As a result, the company had ordered Flexman to remove any mention of BG Group from Flexman’s LinkedIn profile, other than his job titles and the dates he had worked there.  Flexman refused and demanded to know the source of the complaint.  After a dispute arose, Flexman faced an internal disciplinary hearing, with risk of dismissal, and Flexman eventually resigned and claimed constructive dismissal.  The tribunal upheld Flexman’s claim of constructive dismissal due to unacceptable delays in the company’s dealing of the case and the company’s failure to address a grievance related to the incident.  Unfortunately, the tribunal did not specifically address whether merely uploading a CV and ticking the career opportunities box was, indeed, a disciplinary matter.

As with the U.S. lawsuits we described in our earlier post on Socially Aware, these UK cases highlight the need for organizations to have clear social media policies in place in order for employees to understand what is expected of them when using business-related social media accounts.