Out of site, out of mind

'Scribd', a website allowing users to upload text, and therefore publications, and make them accessible to other users, hit the headlines recently when unauthorised copies of books by famous authors such as JK Rowling and John Grisham were found on the site.

The site is based in California but is accessible worldwide, so if copies on the site are unauthorised they are potentially infringing copyright, inter alia, wherever they are downloaded anywhere in the world.

Uploading, downloading and copyright infringement

Copyright is broadly the exclusive right to reproduce, store, distribute and adapt copyright works. Text is protected as a literary work in the UK under the Copyright Designs and Patents Act 1988. Copyright is infringed by reproduction, use or dealing in certain circumstances with the whole or a substantial part of a work. In cases of user-generated content ('UGC') sites this is often a non-issue as the entire work is often used. There are fair dealing defences for purposes of news reporting, incidental inclusion and criticism and review but they are limited and rarely apply. As a result of international conventions, most countries of the world have agreed to give the works of most other countries copyright protection within their borders. In the UK, uploading, downloading, making available and possessing copies in the course of a business can all be acts of infringement.

The E-Commerce Directive (2000/31/EC) gives internet service providers (ISPs) a safe harbour defence against damages and criminal liability if they are hosting infringing material without knowledge provided they take down expeditiously upon notice (which often puts an end to the question of an injunction as well).

Looking at this from a European point of view, there are arguments that many operators of the new generation of interactive Web 2.0 sites such as Scribd do not fall within the definition of an ISP for the purposes of the directive, and are therefore not entitled to rely on its safe harbour provisions protecting them against liability for hosting of content taken down expeditiously upon notice. However, from a practical point of view, the fact remains that many operators of UGC sites observe takedown procedures and set out in their terms and conditions the procedures in place for notification of infringing content and takedown. As such, takedown is often still a good practical option for those that wish to have infringing content taken off UGC sites.

While infringing content may be re-instated elsewhere, the fact remains that it can be a lot quicker and cheaper to effect a takedown of infringing material than going to court; which can be reserved for those who repeatedly infringe. UGC sites typically reserve the right to terminate accounts for repeated infringement and this may also be a cheaper, more practical option than a trip to court.

Protection for copyright owners

Obviously it does not make sense to pursue individual uploaders of infringing material (who also can be anywhere in the world), at least where they are not wholesale infringers, and so copyright owners have been looking to Scribd directly for redress.

Scribd scores highly as a responsible user-generated content site when you review its terms and conditions and procedures. They state that they do not allow infringing material on their site and uploading material is contrary to many clauses in their terms and conditions. They have a takedown policy which presumably they implement pretty well as I was unable to find any JK Rowling or John Grisham books on the site at the time of writing. Further, the site says that accounts will be terminated for repeat infringers (defined as people who have been found to be infringing more than twice). In addition, they have a Copyright Management System ('CMS') allowing copyright owners to upload material onto the Scribd CMS database, meaning that if someone tries to then upload that text the system will block the content automatically. Provided these procedures are properly implemented then copyright owners should be able to protect their rights adequately on the site, not least by registering their text with Scribd upon publication. As such any licensed distribution revenue streams should be secure.

If it was held that a site such as Scribd was not an ISP under the definition of the E-Commerce Directive, or if it is an ISP but it failed to take down expeditiously, would it be liable under the existing copyright law in the UK? In the UK it is necessary in such circumstances to show authorisation or joint infringement.

In the Amstrad case (CBS Songs Ltd v Amstrad Consumer Electronics Plc 1988 RPC 567), the House of Lords held that authorisation requires an express or implied grant to do the specific act complained of. For joint infringement it is necessary to show acting pursuant to a common design. In the case of Scribd, the site expressly says it does not permit infringement of copyright and such acts are contrary to its terms and conditions of use. The only current possibility seems to be that because Scribd filters and is in charge of the content on its site, it has control and is a joint infringer by virtue of this control.

Proving 'a common design' may still, even on this argument, be a step too far. It would therefore appear that without a development in UK law, Scribd should be okay '“ at least for now.