A "Copyright Watch Foundation"?

I was struck by a recent suggestion from the Minister for Culture, Media and Sport that there could be “a cross-industry body, perhaps modelled on the Internet Watch Foundation [IWF], to be charged with identifying infringing websites against which action could be taken”. While that might sound like an attractive idea – the IWF has, after all, reduced the prevalence of its target material on UK servers from 18% to less than 1% - I suspect that significant differences in the law and what action might be taken would make it much harder than it sounds.

First, the IWF deals with material that has a clear legal definition – indecent images of children (Protection of Children Act 1978, s.1). It’s the particular image that contravenes the law and, with a few variations around the age of “child”, almost all legal systems around the world agree that these images are illegal. So wherever, and in whatever context, the IWF find bytes that resolve into an indecent image, they can be pretty sure that it’s illegal for them to be there and that action should be taken to remove them. By contrast, copyright law deals not with material, but with particular actions (copying, distributing, performing, etc.) on material: exactly the same material may be lawful in one context and unlawful in another. Indeed even the same actions on the same material may be lawful or unlawful, depending on whether or not the person performing the action has a licence from the copyright owner or is covered by an exemption. So anyone searching for copyright breaches can’t just look at bytes, they have to look at what they are being (or has been) used for, who by, and under what (if any) permission. Furthermore both licences and exemptions vary between jurisdictions, so the location of the action (a notoriously tricky legal question when applied to the Internet) matters too. Finally, all of these definitions, even whether particular technical actions constitute breach of copyright at all, are still being debated in individual court cases so the answers may not be settled (in the case of Newzbin, which BT has recently been ordered to block, the court spent some time analysing whether providing links and indexes to infringing material did break copyright law). A body trying to determine whether a copyright breach has taken place is going to have a much more complex job than one determining whether it has found an indecent image of a child, and may never be able to do so with the same accuracy as the IWF achieve.

Then there is the question of what the body will do when it discovers something unlawful. The IWF normally reports illegal material either to the host where it was found or to the appropriate national hotline. In most cases an IWF report is sufficient to have material removed at source. Until removal occurs, in order to protect those who do not wish to accidentally encounter the material, the IWF may also add the URL to its child abuse image list, which is filtered by many UK ISPs and blocking appliances. Both of those processes rely on cooperation – very few websites wish to publish criminally illegal material and almost all Internet users are very happy to have it kept well away from their browsers. In the case of copyright that cooperation may be less common: the kinds of sites the Minister appears to have in mind may be less willing to remove material on request, while the Government’s own reports indicate that a significant minority of UK Internet users actively want to access copyright-infringing material and seem likely to work around blocking measures to get it. Doing so doesn’t require technical expertise – a software download or update may be all that is needed – indeed the judge in the Newzbin blocking case appeared to admit that the block might only hinder the minority of users of the site. The judge considered (para 198) that the attempt would still be worthwhile, but any comparison with the IWF’s level of effectiveness seems optimistic.