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Published: March 1999.

Copyright Obstacles to Exploiting Websites - A European View

How European copyright reform is being achieved

Firstly, copyright is essentially seen as a commodity which can be traded: therefore it has economic value and trading in anything economic is regulated by the European Union to ensure that a Single Market is developed between the present fifteen Member States. This requires harmonisation of copyright law so that the owner of a work created or held in one country will have the same possibility of exploiting it economically in all part of the Union.

To achieve this the European Commission (the civil servants of the Union) identify areas where reform is needed and make proposals which are then widely debated and then referred to the European Parliament (elected members). The Parliament will form a view and the Commission then revises its proposals in the light of this view and it is then passed to the Council of Ministers (made up of the appropriate minister from each country responsible for the subject concerned) to reach a common position. This is then resubmitted to the Parliament and again wide consultation takes place. Finally the Directive is agreed and becomes European law. Each country then has about two years in which to draft or amend their own legislation and have it passed by their national parliament. This process can take several years to complete.

The Commission has had a programme of copyright harmonisation over the last nine years, starting with computer programs (Council Directive 1991), lending and rental (Council Directive 1992), Duration and rights in previously unpublished works which are out of copyright (Council Directive1993), and databases (Council Directive 1996). All these directives apply not only to the 15 EU Member States but also to Norway and Iceland who are members of the wider European Economic Area (EEA).

Introducing some basic principles

Content

Although most of the rights enjoyed by copyright owners in Europe are similar to those in other parts of the world, it is worth mentioning some particular issues as they might affect websites mounted by museums, galleries or archives.

Duration

Publication Right

Whether or not the mere existence of an item in a museum collection which is open to the public constitutes "making available to the public" has not been determined.

There is a special quirk in the whole system for the UK. Until 1988 unpublished literary works remained in copyright indefinitely until published. To get rid of this perpetual copyright transitional arrangements were introduced to give protection to such works until the year 2039 (50 years after the new copyright law came into force). This means that any manuscript of similar work which was unpublished in 1989 remains in copyright until 2039 and the new Publication Right cannot apply. It does not apply to artistic works, which make up the bulk of museum collections (as opposed to library and archive collections) so this causes both less and more of a problem.

Performing

Is it fixed?

Web technology

Broadcast or cable television programme?

Is it a database?

In addition to these questions the web sites themselves are probably equivalent to databases. A web site is essentially a compilation of a number of different elements, some of which will attract copyright and some will not, but this does not affect the status of the compilation itself.

Ownership

Web site links and the wider dimension

Firstly there is a technical question which has considerable legal implications. The perception of the user is that, when you click on a link to another web site, you go into that site. As I understand it, this is technically not the case. Rather when you click on the hypertext link then the text which you are seeking is transmitted to the user. Therefore you are not simply viewing something which exists but having it transmitted to you. This in itself constitutes copying a work. The natural reaction to this is that, if the owner of the site to which the link has been created did not want a work copied then they should not have allowed the link to be built. However, links are not always built with the knowledge and permission of the owner of the web site to which they are connected. This has raised the question of whether clicking on the hypertext link actually causes the material sought to be broadcast. But it could be argued that not only was the work copied by the person doing the searching but they also caused it to be broadcast which is a separate exclusive right of the copyright owner. These issues have been raised in a recent case in Scotland involving the Shetland Times and Shetland News. (Innnes & McMillan 1997) The latter created a web site which primarily consisted of links into the web site of the Shetland Times. The Shetland Times has taken out an injunction against the Shetland News preventing this link on a number of grounds, all of which have to be determined by a full hearing of the case. However the issues raised are of considerable significance and it may be worth looking at one or two of them briefly.

Firstly the Shetland News created links to the headlines of the Shetland Times. The Shetland Times claims infringement of copyright in the headlines. It has generally been held that there is no copyright in a title unless it is so unusual that it may be considered creative and original in its own right. However the judge in the interim hearing has asked that this matter to be considered. Headlines have generally been considered commonplace and therefore not susceptible to copyright. They are statements of facts and there is no copyright in facts as such only in the specific way they are expressed. A second issue is the question of fair dealing. Fair dealing is a wonderful concept in United Kingdom law and is far more flexible than the American equivalent of fair use, largely because it is undefined! However, it is not found in the legislation of any other European country except Ireland. Nevertheless, one of the reasons for fair dealing is reporting current events and it would seem at least an arguable case that one newspaper web site is reporting current events which it has found in another web site and therefore this is a matter of considerable interest. However, it must be realised that the Shetland News was not itself creating news or information but merely providing a link into somebody else's news and information which is not the same thing. A further aspect of the case is the question of passing off. Passing off is not a direct copyright matter but more of trade. Nevertheless it often involves infringements of copyright. Hence the passing off is providing goods or services which look sufficiently like somebody else's goods or services that they may be considered as coming from the second person even though they do not and may not, on close examination, be considered as coming from that second source. However creating something which looks very like, sounds like, or has the general appearance of another product may well lead to a charge of passing off. It is important when creating web site links that the user is always aware of whose information is being used. If you start a search in a web site and then use a hypertext link into another web site you may form the impression that you are still looking at the first web site even though you are not. It is therefore important to make sure there are displays, borders or icons which make it quite clear whose web site, and therefore copyright material, is being viewed and possibly downloaded or printed. A small icon which says something like 'copyright information available here' would overcome this difficulty to some extent. This problem is linked to a related one that when links are built from one web site into the body of another rather than to the opening pages, then all sorts of important information is lost. The user is not aware whose information is being viewed or used, neither are they aware of ownership or any restrictions, limitations or privileges granted by virtue of using this second web site. Therefore it would seem a good idea that all links are built initially into the opening page of a web site rather than into the body of the web site itself.

A further issue has been raised by a recent case of Nottinghamshire County Council. The County Council commissioned a report on social work in connection with satanic child abuse in the 1980s. The Council decided not to publish the report for its own reasons but the authors mounted it on several web sites in the UK. The County Council obtained an injunction which required them to remove the document from the web sites and this was done pending a hearing in the High Court. However the World Wide Web is designed to disseminate information and the document was subsequently loaded onto a web site in Canada. The County Council wrote to the owner of the web site who agreed to remove the document but they subsequently complained that he had retained hypertext links into another web site where the document was still available. The County Council have claimed that this creation of the hypertext link is tantamount to publication of the report for the reasons I described earlier about the nature of such links.

The latest proposals

The real furore has arisen over the proposed exceptions to these rights. The European Commission are notoriously opposed to the idea of exceptions in copyright and their view is largely based on the powerful lobbying by the leisure, entertainment and commercial publishing world. The proposals for the new legislation do include certain exceptions but these are of a limited, and in the view of most information providers, inadequate nature. Having defined reproduction as including temporary and transient copies, the Commission then goes on to require Member States to make such copies exceptions provided they have no economic significance and are necessary to the technical processes required to use a document. Therefore downloading something legitimately cannot infringe copyright because it results in one or more temporary copies for non-economic purposes. However, the rights of the owner in terms of the reproduction right can be limited in terms of reproduction on to paper or any similar medium by the use of any kind of photographic techniques or some process having similar effects. Presumably this would mean that a museum could photograph an object in its collection or even photocopy a tapestry or engraving. In addition Member States may make exceptions for establishment which are accessible to the public and the copies are not for direct or indirect commercial advantage. Therefore a museum could make photographs of works in its collection but not sell them as postcards, put them on tee-shirts or mugs. But this exception does NOT apply to any form of electronic copying as the exception is only for copying on to paper. Therefore any idea that museums might digitise images of their collections and make them generally available, either for free or fee, would be quashed immediately. It is important to note as well that Member States MAY make such exceptions. There is no obligation to do so. In the present situation most Member States do not have specific "fair use" clauses (one EC Commissioner actually said this was an alien concept in Continental Europe) but do allow some private and personal copying. But Luxembourg, for example, has no such exception and it seems unlikely they would introduce one under legislation which is permissive rather than directive. Thus the idea of the Single Market would crumble as a museum in the UK might legitimately make a copy of an exhibit and send this to Luxembourg where it would immediately be an infringing copy!

However, these limitations do not apply to the Right of Communication to the Public from which there are only very limited exceptions for illustrating teaching and scientific research and the needs of those with disabilities which prevent them from using a work in its usual format. [There are also special rules for national security, reporting current events and criticism and review - the last includes a reference to "fair practice" a term which is currently being used to persuade the Commission that something like fair dealing/use should be introduced throughout Europe].

As the Directive stands it may be possible for a museum to digitise images of material in its collection (although this will vary from one country to another) but to communicate this material to the public would be an infringement of the owners rights. Clearly this would pose insuperable problems in obtaining permission, especially for older material or that produced by obscure organisations. What would be the point in allowing a museum to create a digitised collection if it could not be used for the benefit of the public.

In an electronic context many people suggest that the protection and management of copyright material can be left to the technology. The answer to the machine is in the machine. Recognising this the EC has funded many projects on this topic which are outside the scope of this paper but they have also incorporated this concept in the proposed legislation. Member States are required to give adequate protection to such mechanisms including legislation to make it illegal to circumvent, or manufacture or market devices which can circumvent legally established management systems. There is a swell of opinion in Europe that such mechanisms may well sweep away all idea of fair sue as access will be totally managed by the technology. Therefore it has been proposed that it should be legitimate to circumvent such mechanisms for the purposes of fair practice. Just how it is possible to determine when such circumvention is legitimate and when it is not seems beyond the capabilities of the technology. The alternative view being pressed is that such systems should be able to manage fair use but how do you tell a system when you are being fair and when not?

Conclusion

References