Copyright enforcement remains an ongoing policy issue, with the current processing of the new Copyright Directive in the European Parliament.

This article is the text of my speech at the Council of Europe "Freedom of Expression Online" conference in Nicosia, Cyprus on 28 April 2017. The speech is entitled Balancing freedom of expression online: insights from copyright cases. I address Member State and ECJ caselaw, taking copyright enforcement cases, mainly from the UK, as examples. The cases concern the blocking or filtering of content, and balancing the conflicting rights of copyright versus freedom of expression.

"I am delighted to be invited by The Council of Europe to be here today in Cyprus. My aim is to present a perspective with regard to Member State caselaw and the balancing of freedom of expression online. I have chosen to use the example of copyright enforcement because there is already a body of caselaw in this area in several Member States, including my own country, the UK, and there are a number of cases that will illustrate the issues for you.

First of all let me address why freedom of expression rights are engaged in copyright enforcement cases. In a nutshell, it is the action of blocking content, removing it, taking it down from a site, any action that potentially limits or restricts the user's activity - this is what engages the right to freedom of expression. It does so because such actions have the potential to limit or restrict a user's legitimate rights to communicate. Those legitimate rights may exist because the user benefits from exceptions under EU law. Or they may concern the rights of a third party who is not involved in the alleged infringement. It is those rights that the court must balance against the request to block.

Let me now describe for you a typical copyright enforcement case. The court is presented with a situation like this. Copyright holders allege that certain websites, or content on those websites, infringes their rights. Usually, the allegation is that the content is 'pirated'. In other words, that a digital file of a movie or music track has been put there without the permission of the author, producer or rights-holder.

The rights - holders ask for injunction under Article 8.3 of the 2001 Copyright directive. This is an injunction against an Internet service provider or hosting platform. Importantly it is not against the user who is alleged to have infringed. It is a form of secondary liability, where a person whose facilities are used to infringe is made liable for the infringement. The Internet Service Provider or the content platform would be ordered to perform the blocking action.

To be clear, therefore we are talking about a request for the court to make an order against an intermediary which is not itself an infringer. It is precisely this intermediary position which makes these cases quite complex with regard to freedom of expression.

Let's explore some of the ways that freedom of expression could be limited. Specifically, the blocking action may have the effect of removing content that is actually not -infringing.

Copyright law is complex and the content may be protected by the exceptions in the EU Copyright Directive. Under those exceptions, the user has a legitimate right to upload it. For example, an academic, such as myself, uploading a video about copyright and using a snippet of a song in that video. Would it be right to block that video if I am legally entitled to use that snippet under those exceptions? This was a real case, not in the EU but in the US, under the Digital Milenium Copyright Act take-down provisions. It concerned Lawrence Lessig , the American professor of copyright law, whom you may have heard of. Professor Lessig contested a take-down of his video lecture, claiming fair use rights. The video was reinstated. However, it's clear, that anyone who is not a law professor, and not as well-known as Lawrence Lessig, might have no form of redress.

It may happen that a user's personal or business content, which is unconnected to any copyright claim, is caught up in blocking actions. This is known as over-blocking.

An interesting example of overblocking occurred as result of a UK case litigated by the Premier League. The Premier League was trying to stop a football streaming site, alleged to be pirating film of football matches. The court ordered a block on the streaming site but when the block was put in place, it also blocked a magazine called the Radio Times, which publishes the BBC television listings. Blocking access to the Radio Times is a violation of freedom of expression. This is why the UK courts have established that blocking orders must be narrow in scope and must specify exactly the content that is to be blocked.

In fact, there is a helpful ruling from the UK courts which establishes that copyright blocking orders do engage Article 10 of the European Convention on Human rights. It is Cartier vs British Sky Broadcasting from 2014. The ruling states that "it is common ground that the orders sought by [the claimant] would amount to a limitation on the subscribers rights under Article 11, of the Charter of Fundamental Rights" which equates to Article 10 of the European Convention. The ruling goes on to refer to Article 10(2) of the Convention, which establishes the framework for the restriction freedom of expression. Article 10(2) states that any restriction must be prescribed by law.

There is an important precedent that has been established in the UK. Entertainment industries wishing to ask network providers to block copyrighted content, must first of all go to court and obtain an order.

Moreover, the ruling in Cartier vs BSkyB establishes the conditions which must be satisfied in order to grant a blocking order. Firstly, the defendant must be a service provider in the context of the E-commerce directive Articles 12-15. There are instances where it may be necessary to establish that the defendant is a service provider, for example if the defendant is an app.

The second condition for a blocking order is that a court must establish the correct legal basis for the infringement. In other words, it must establish whether users or the operator of the website in question did infringe the claimant's copyrights, and whether they used the ISP's services to do that. Here we come to one of the complexities of these online copyright enforcement cases.

The infringement is not about creating a copy. Instead, it concerns a breach of the author's right of communication to the public. This is how rights-holders usually plead. There are 18 principles established in the caselaw of the European court of Justice regarding communication to the public. Those principles are detailed in Paramount Home Entertainment v British Sky Broadcasting Ltd from 2013.

However, it is not always easy to determine how the communication to the public is being made. I'd like to share with you an example from a UK case that is known as "Popcorn Time" [20th Century Fox & Others vs Sky UK & Others, 28 April 2015 ] . This case concerned a video streaming app which resided on the user's computer and presented to the user a catalogue of available movies. The app obtained the catalogue information from two external websites. In court, the blocking order was requested against the websites. This request was justified by the claimants on the basis that they infringed the author's right of communication to the public. The ruling, however, disagreed. It said this would not be the correct basis, because it was the app that communicated the movie information to the user and not the websites. So instead, the ruling opted for joint tortfeasance between the app and two websites.

The complexity is increased when it comes to content filtering. Filtering requires continuous scanning and monitoring of the content being transmitted or uploaded, with the aim of checking for infringing files. European case law has clearly established that continuous monitoring by the intermediary is not compatible with the legal framework. This principle applies for both types of intermediary - networks and hosts. The landmark ruling is Scarlet Extended. This was a referral from a Belgian court to the European Court of Justice. The case related to a network operator that was asked to filter out copyrighted content from the repertoire of a Belgian collecting society. The Court said that a filtering system "could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications." The ruling pointed out that the lawfulness of content will vary according to the exceptions to copyright in the different Member States.

Recent litigation in Member State courts has concerned measures known as "Stay down".

Stay down would require intermediaries to seek out and remove repeat copies of a file for an indefinite period. Any type of stay-down system would need to operate by checking newly uploaded files against a database of previously identified infringing content; a stay down system would remove, or prohibit the uploading of, any content that matched a file in the database. Stay down requires a content scanning or filtering system. Decisions would be taken on the basis of database matches and computer algorithms rather than human understanding of the law. Stay down raises concerns over the possibility for error, notably for false positives and the taking down of legal content.

I'd like to end with food for thought. We all use cloud services these days. We often don't know who is the real provider of the service or even what jurisdiction it is based in. You yourselves may well use a cloud service. What would be the impact on someone's professional business if their cloud service were taken down because of a copyright allegation? What recourse do they have? How would a court be able to protect those users? In these situations, the role of the court becomes wider than the the strict legal interpretation of the copyright matter. I have observed in rulings from the EU and elsewhere, that the judiciary play a critical role in establishing the right balance between copyright and innovation and human rights"

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You can also hear a podcast of the speech here.

If you liked this article, you may also like my book The Closing of the Net which has three chapters on copyright including coverage of web blocking litigation, and the intriguing case of Megaupload.

If you cite this article or its contents, please attribute Iptegrity.com and Monica Horten as the author.