Tanya Aplin

Reflections on Measuring Text Re-Use from a Copyright Law Perspective

Dr Paul Clough’s paper examines ways of measuring text re-use in respect of material produced by news agency services. It describes the METER project, a project which involved quantifying and measuring the probable reuse of Press Association (PA) material or ‘copy’ in specific stories by members of the British national press. The project used both manual techniques and computational models of measurement, although clearly the real interest is in developing the latter. These computational or automated methods of measuring text re-use could prove useful not only in the sphere of news agency services, but also in other contexts, such as copy-detection.As a UK copyright academic, I found Dr Clough’s research interesting in, broadly speaking, two main ways. First, I was struck by the similarities and differences between the concept of text re-use and that of UK copyright law. Second, I was interested in the role computational models of measuring text re-use might have in the copyright sphere.

The Relationship Between Breach of Confidence and the ‘Tort of Misuse of Private Information’

Action for Breach of Confidence in a post-HRA era’ [2007] 1 Intellectual Property Quarterly 19. 2 Campbell v MGN Ltd [2003] QB 633 (CA) 663. 3 Campbell v MGN Ltd [2004] 2 AC 457 (HL) 465. But compare the view of Lord Phillips MR in the later decision of Douglas v Hello! (No 3) [2006] QB 125 (CA) 160: ‘The Douglases’ claim in relation to invasion of their privacy might seem most appropriately to fall within the ambit of the law of delict. We have concluded, however, albeit not without hesitation, that the effect of shoehorning this type of claim into the cause of action of breach of confidence means that it does not fall to be treated as a tort under English law’ (emphasis added). 4 See Rabinder Singh and James Strachan, ‘Privacy Postponed’ (2003) EHRLR 11, 19–20; Gavin Phillipson, ‘The “Right” of Privacy in England and Strasbourg’ in Andrew T Kenyon and Megan Richardson (eds), New Dimensions in Privacy Law (Cambridge University Press, 2006) 184–228; and Roger G Toulson and Charles M Phipps, Confidentiality (Sweet & Maxwell, London 2006) paras 2-029 and 2-109. 5 See Alexandra Sims, ‘“A Shift in the Centre of Gravity”: The Dangers of Protecting Privacy through Breach of Confidence’ [2005] Intellectual Property Quarterly 27. 6 Ie, the equitable action for breach of confidence that existed prior to the Human Rights Act 1998 taking effect. 7 [2006] EMLR 10 (CA) (McKennitt). 8 [2006] EWCA Civ 1776 (Prince of Wales). THE RELATIONSHIP BETWEEN BREACH OF CONFIDENCE AND THE ‘TORT OF MISUSE OF PRIVATE INFORMATION’

Creativity and the Law

This chapter considers the intersection between creativity and the law. Two types of intellectual property laws—copyright and patent—and the ways in which intangible or intellectual labour is regulated by them are discussed. Copyright law is an obvious choice because of its perceived role as a tool for stimulating or rewarding creativity in the cultural or aesthetic sphere. Patent law is associated with technological innovation and, it too, is frequently viewed as crucial to incentivizing and rewarding creativity, this time in the scientific or industrial sphere. The chapter discusses the legal tests of originality (for copyright) and novelty and inventiveness (for patent law) and how these operate within the legal framework to define what and who has legal rights in their creativity. This discussion is also situated within a wider literature that acknowledges the dissonance between the law and creative practice.

Right to Property and Trade Secrets

Trade secrets are valuable assets that are often used in tandem with intellectual property rights such as patents, trade marks, designs and copyright. While Strasbourg has shown a willingness to find that trade marks, patents and copyright fall within Article 1 Protocol 1 of the ECHR and thus that their protection is a type of human right, it does not follow that the same should be the case for trade secrets. Unlike these intellectual property rights, trade secret protection is not recognized as proprietary in the domestic law of signatory states. Article 17 of the EU Charter of Fundamental Rights, in referring to ‘intellectual property’ as a type of possession, does not assist with the enquiry in the EU context because it is unusual for Member States or EU law to characterise trade secrets as intellectual property. As well, TRIPs obligations do not mandate intellectual property protection. If Strasbourg or Luxembourg were nevertheless to find that trade secrets are within the right to property then this would be likely to create pressure to apply strict liability to third parties, interpret exceptions restrictively and provide for strong enforcement measures. Thankfully, the recently proposed EU Trade Secrets Directive rejects a robust property approach to the protection of trade secrets and instead demonstrates a more balanced unfair competition type model. While the benefits of harmonization in this field may be questioned, the movement away from property rights should be welcomed.

Commercialising Privacy and Privatising the Commercial: The Difficulties Arising from the Protection of Privacy via Breach of Confidence

The action for breach of confidence is a malleable one that in the last decade, under the catalytic influence of the Human Rights Act 1998 (UK) (‘HRA’), has been adapted by English courts to give effect to privacy interests. Courts have explicitly addressed the role of Article 8 of the European Convention on Human Rights (‘ECHR’) in their analysis of breach of confidence principles, leading to an increased degree of (informational) privacy protection. However, this apparently convenient vehicle for protecting privacy interests is not without its difficulties. First, allowing private or personal information to be commercialised and protected as a trade secret via breach of confidence means that protection is no longer anchored to a privacy justification and begins to resemble, or risks developing into, a publicity right. This is aptly illustrated by the Douglas v Hello! litigation. Second, the issue arises whether commercial organisations can claim privacy protection in relation to commercial information, instead of, or in addition to, trade secret protection. This chapter will examine both of these difficulties, using the Douglas v Hello! litigation as the context for doing so, and will argue that there are several complications that arise from entangling privacy interests with the protection of commercial secrets.

'Reproduction' and 'Communication to the Public' Rights in EU Copyright Law: FAPL v QC Leisure

In Football Association Premier League v QC Leisure, a dispute arose regarding the supply of (genuine) Greek satellite decoder cards to pubs and bars in the UK. The Football Association Premier League grants exclusive territorial licenses to broadcasters in different Member States. In the UK, the exclusive licensee is Sky and in Greece it is Nova, and the subscription fees charged by these broadcasters vary by thousands of pounds. In this case, Greek satellite decoder cards, which cost considerably less, were used by the operators of UK premises to receive live broadcasts of English Premier League football matches from satellite channels outside the UK (ie from Greece). The claimants brought an action against the defendants (who were suppliers of satellite decoder cards and operators of UK pubs) claiming infringement of Directive 98/84/EC on conditional access and also copyright infringement. In relation to the former claim, the claimants alleged that, by trading in satellite decoder cards intended for use in markets outside the UK, the defendants were dealing in ‘illicit devices’ within the meaning of Article 2(e) of Directive 98/84/EC and section 298 of the UK Copyright, Designs and Patents Act 1988 (‘CDPA’). A question on the meaning of ‘illicit devices’ was referred to the Court of Justice of the European Union (‘ECJ’). The claimants also argued that the defendants had infringed copyright in elements of the ‘World Feed’, which was a broadcast of the football match together with graphics, inserted logos, the Premier League Anthem, additional video sequences and commentary. Specifically, the claimants argued that a musical work, sound recording, film and various artistic works had been unlawfully reproduced and communicated to the public, within the meaning of Articles 2 and 3 of Directive 2001/29/EC on copyright in the information society (‘Directive 2001/29/EC’) and sections 17 and 20 of the CDPA. Questions on the scope of these rights were also referred to the ECJ. In addition, a series of legal arguments in relation to the free movement of goods, free movement of services and competition law were raised by the defendants and questions on these issues were also referred to the ECJ. The FAPL reference contains several difficult questions that range across various areas of EU law; however, this analysis focuses solely on the copyright questions that have been referred to the ECJ, specifically those concerning the rights of reproduction and communication to the public provided by Directive 2001/29/EC. As this Directive reflects the most far-reaching EU harmonisation of copyright law to date, and the rights of reproduction and communication to the public are two of the most fundamental rights granted to copyright owners, the scope of these rights are important matters of ECJ interpretation that will significantly affect intellectual property law throughout the European Union.

A Global Digital Register for the Preservation and Access to Cultural Heritage: Problems, Challenges and Possibilities

The aim of this chapter is to address the legal challenges, in particular the copyright law framework, relevant to digital preservation of and access to cultural heritage. It will examine the key components of legal deposit schemes, the problem of orphan works and finally, the copyright ownership implications of generating a digital register or archive.

Book Review: Resisting Intellectual Property

difference to the nature and implication of regulatory intervention during the BSEand FMD-epidemics. While he contends that the pursuit of the public interest requires ‘regulatory attention to be given to the potential impact of action or inaction on the ability of all to act effectively as citizens’ (p. 252), it is by no means clear how this might be translated into a workable decision-making structure – particularly in relation to matters posing imminent risks to human health or the environment which demand urgent intervention. Without such guidance, Feintuck does little more than challenge existing conceptions and applications of ‘the public interest’. It is a shame that the book does not go into greater detail on how the concept might become more than ‘an empty vessel’. As it stands, Feintuck’s understanding of the public interest is exposed to the very criticism that he makes of versions of public interest identified in his survey of regulatory activity – that their inherent ambiguity hinders the formulation of a viable framework through which values of democracy can be defended. This is not to say, however, that the book as a whole does not provide a thorough and timely exposition of a central issue in regulation. Although Feintuck does not solve problems of definition and application, he nevertheless makes a valuable contribution to an important and underresearched subject.

The Future of Breach of Confidence and the Protection of Privacy

Using the impetus of the Human Rights Act 1998, English courts have significantly reshaped the law of confidence in an attempt to better protect privacy. This article argues that there is a persuasive case for no longer utilising the equitable action for breach of confidence and instead recognizing a limited tort of privacy, in the form of misuse of private information. This would minimise any possible risk of distortions to the law of confidence as it relates to non-personal information, accord with current judicial practice, and provide a sound basis for awarding compensation for non-pecuniary harm and exemplary damages. Such a tort would also be suitably confined so as to minimise confusion and would be a constitutionally defensible step for the courts to take. Once a tort of misuse of private information is recognised courts can begin the crucial process of articulating and clarifying the internal principles of such a tort, along with its relationship to the ‘old’ law of confidence.

THE SCOPE OF CONSENT IN ARTICLE 7(1) OF THE TRADE MARKS DIRECTIVE

W hen does a proprietor of a trade mark consent to goods bearing that mark being placed on the market in the EEA? Article 7(1) of the Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Members States relating to trade marks [1989] O.J. L040/1 raises this question, the answer to which is critical since consent will “exhaust” the proprietor’s trade mark rights in respect of those goods, subject to the operation of Article 7(2). In Silhouette International Schmiedt GmbH & Co. KG v. Hartlauer Handelsgesellschaft mbH [1998] E.T.M.R. 539 the ECJ held that Article 7(1) does not support international exhaustion: this is where trade mark rights cannot be used to prevent imports into the EEA of goods placed on the market anywhere in the world under the trade mark. In Zino Davidoff v. A & G Imports Ltd. [2002] 2 W.L.R. 321 the ECJ gave a preliminary ruling on the interpretation of “consent” in Article 7(1). A broad or uncertain interpretation of consent to the marketing of goods in the EEA would have undermined the rule against international exhaustion established in Silhouette . The ECJ in Davidoff opted for a narrow and well-defined interpretation of “consent” within Article 7(1).