Get Outta My Pub!
“The European Convention on Human Rights restricts governments from expropriating or otherwise controlling the use of property rights, including intellectual property such as copyright, particularly in circumstances where this is uncompensated. Especially having regard to the practical challenges rights holders would have in protecting their IP under the government’s proposals, as we identified in our response to the copyright and artificial intelligence consultation, we believe that the proposals risk unlawfully infringing the Convention and Human Rights Act 1998. ”
“Get Outta My Pub!” was the catchphrase of the erstwhile landlady of the Queen Vic pub in EastEnders, Peggy Mitchell, when she was exercising her rights to control the use of her possessions and eject people from the premises. Unlike the government’s proposals for the protection of the property of copyright holders, it was an effective tool.
In our response to the government’s consultation on copyright and artificial intelligence (AI) we argued that the government’s proposals to expand the scope of the exceptions to the exclusive acts reserved to copyright holders under the Copyright, Designs and Patents Act 1988 were capable of infringing the property rights of copyright holders and therefore Article 1 of Protocol 1 (A1-P1) of the Council of Europe’s European Convention on Human Rights (ECHR) by expropriating or otherwise controlling their use
What is the government proposing to do to UK copyright works?
The government proposes to legislate to introduce an exception to permit data mining for any purpose (not merely for text and data analysis for non-commercial research as currently permitted by section 29A Copyright, Designs and Patents Act 1988) where there is lawful access to the relevant copyright work, but with a carve out such that the exception could not be relied upon where the rights holder had reserved their rights through an agreed mechanism or an effective, accessible, machine-readable format (by blocking generative AI web crawlers using robots.txt, for example, or associated metadata or even third party registries). This would enable AI developers to utilise published copyright works, including those published by the creative industries and the professional services and knowledge based industries, all of which drive the UK economy, to train their artificial intelligence (AI) models without having to remunerate rights holders, despite the fact that many AI developers are highly profitable US-based BigTech companies and developers are securing significant finance and market capitalisation in the expectation of significant profitability attributable to AI products and services. News publishers and many bodies representing the creative industries collaborated in a joint ‘Make It Fair’ campaign vigorously objecting to the proposals.
Could the government’s proposals to reform UK copyright law infringe human rights?
Copyright is explicitly acknowledged as a property right at section 1(1) Copyright, Designs and Patents Act 1988.
A1-P1 ECHR provides that all individuals and companies are entitled to (i) the peaceful enjoyment of their possessions and (ii) not to be deprived of their possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The European Court of Human Rights recognised that A1-P1 ECHR “is applicable to intellectual property” in Anheuser-Busch Inc. v Portugal [72] (73049/01) and that this includes copyright in Sia AKKA/LAA v Latvia (562/05) [41] in which the Cort determined that the works themselves and the “economic interests deriving from them” constituted possessions within the meaning of A1-P1 ECHR [55].
We consider that the government’s proposals would constitute an interference with copyright holders’ possessions.
It would then have to be considered whether the interference (i) constitutes a deprivation of property, (ii) affects the control of use of property or (iii) otherwise impact the general principle of respect for the peaceful enjoyment of “possessions”.
In order to be lawful any interference must: be prescribed by law; compatible with the rule of law; free from arbitrariness; accessible, precise and foreseeable; pursue a legitimate aim; and, be reasonably proportionate to that legitimate aim.
The government’s consultation didn’t make clear the temporal basis on which the proposals would be enacted and therefore the foreseeability of the proposed law could be in issue. Legislative intervention deigned to influence the determination of a dispute is capable of interfering with the rule of law and Article 6 ECHR.
Any interference must also be in the legitimate public or general interest. The Strasbourg court has found legitimate public or general interests in circumstances where the interference with property rights was necessary for protecting public health, related to the confiscation of assets pertaining to criminal activity, in the context of nationalising industry, the implementation of town planning and environmental protection. While restriction on the profitability of an industry, such as the imposition of rent control affecting the profitability of landlords, have been held to be in the public interest as they provide for the social protection of tenants, and Member States are afforded a wide margin of appreciation, interference with the possessions for the benefit of a particular industry which is (or has the potential to be) highly profitable and well financed, have not.
Even if a public or general interest could be established, the interference would need to be proportionate to the legitimate aim pursued, which means that it must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights with consideration given to whether other, less intrusive, measures were available and were considered.
As we pointed out in our consultation response, not only do we anticipate that the purported safeguard against the unremunerated expropriation of enabling the exercise of a technological opt-out will not in fact be available to many rights holders, rendering any protection nugatory, but in setting out the options the government failed to consider an alternate approach of seeking to encourage willing and proactive licensing of copyright works for the purposes of enabling web scraping/data mining for AI training, validation and testing, through the establishment of a licensing scheme and potentially seeking to subsidise such licensing to support the development of the UK AI industry in circumstances where other countries and foreign entities have established their industries by disregarding applicable laws.
The absence of compensation, or compensation reasonably related to market value, is a material factor in determining proportionality.
More generally, the evident ineffectiveness of the UK’s copyright regime in protecting copyright holders from large scale infringement of their exclusive rights, raises questions as to the UK’s compliance with its positive obligation to protect such rights including from private actors.
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