The report was written in 1990 by an enquiry team for Nottinghamshire County Council. It was published for the first time by three UK journalists in early June 1997, who put the report on a public web site. Nottinghamshire County Council, the owner of the copyright in the report, has obtained a High Court order to force the journalists to remove the report from their web site, stating that any copying of the report is an infringement of the copyright of Nottinghamshire County Council. This order was obtained ex parte (without the participation of the legal advisors to the defendants, a common practice in emergencies). On 3rd June the report was withdrawn from the original site. In the meantime over twenty mirror sites have been set up which are carrying the same report. Links to mirror sits have been removed from the original site in accordance with the terms of the injunction.
Copyright Law
Nottinghamshire County Council appears to own the copyright in the report and therefore under the Copyright, Designs and Patents Act 1988 ("CDPA 88"), any copying of the report is an infringement of the Council's copyright. "Copying" includes electronic copying and therefore the fact that the copy was put on to the web and not copied by more traditional means is irrelevant. Section 17 of the CDPA 88 states that the copyright is infringed if the work is stored in any medium by electronic means. None of the journalists asked permission from the Council to publish this report on the web and therefore cannot argue that they had an implied licence to publish.
Mirror Sites
Unlike previous cases (such as the Shetland Times case), the hypertext links which are the subject of the injunction are to mirror sites on which copies of the infringing report have been posted. These sites are outside the jurisdiction of the English courts. This raises new issues under copyright law which have not been previously addressed. As Professor Charles Oppenheim of the University of Strathclyde commented on the Shetland Times case:
"Linking of websites to one another is extremely common and is, arguably, both the raison d'etre of the world-wide web and the reason for its success. It is custom and practice, and so if a copyright owner puts up a web page, he must expect others to link into his site. Services such as web search engines could not operate without this ability".
Professor Peter Junger of Case Western Reserve University Law School Cleveland also put the report on his web site and received an email from the Council setting out the same arguments that they had put to the three journalists. Professor Junger is arguing that because the website is located in Cleveland, Ohio in the USA, the Council does not have the locus standi to issue writs (in other words the Council cannot sue in the US courts). In addition, if the Council were to seek an injunction from a court in the USA, Professor Junger has commented that he would claim "fair use" as a defence and in addition would claim protection under the US Constitution. In our opinion the defence of "fair use" would not be a particularly strong one under US law because it is usually used to defend an action of "research or study". However, a claim under the First Amendment of the US Constitution is potentially a strong one and may well be difficult to defeat."
As at 18 June Professor Junger had not agreed to comply with the Council's demands.
Confidentiality
It is important to note that the report may contain the names of certain young people, some of whom are the subject of care orders and so in accordance with the provisions of the Children Act 1989, these names should be kept confidential. However this does not appear to be the key issue of this case.
Conclusion
The major issue of importance to arise from this case is whether hypertext links to material which infringes copyright can be removed by court order. The answer to this question will not be known until the outcome of the full hearing of the case in September. In the meantime, here are some initial comments:
- the case has not decided that hypertext links are copyrightable. You are free to link to other sites unless and until you know or suspect that they contain copyright material which is infringing.
- Storage of another's copyright material without permission is clearly in breach of copyright because "copying", as defined by the CDPA 88, does not include storing a work in electronic form. ISPs should therefore get warranties and indemnities from their users to protect them from liability for storing infringing material without their knowledge.
- if a claim is made that an ISP is storing infringing material, it must ask the user who put the material on the server about the truth of the claim. If the ISP is not satisfied that the use of the material is legitimate, then the ISP must remove the material from its server or run the risk of legal action for infringement of copyright.
For further advice please contact us.
This bulletin is correct to the best of our knowledge and belief at the date shown below. It is, however, written as a general guide; it is essential that relevant professional advice is sought before any specific action is taken. Garretts is a member of the international network of law firms associated with Arthur Andersen and is regulated by the Law Society in the conduct of investment business.
