The enforcement of laws regulating digital cultural content: a proposal

ABSTRACT

Law is becoming increasingly digital in nature, and the State is increasingly using digital technology for the purposes of physical legal enforcement. This paper argues that this poses unique issues for legal regulation of cultural content, changing the relationship between the individual and the State. The paper focuses on laws in the UK and China to demonstrate how these issues have arisen, and what the potential consequences of this change could be. The paper culminates in arguing that legislatures and courts should be required to explicitly consider how digital technology influences, in a given law or case, the enforcement of law.

KEYWORDS:

• China
• copyright
• censorship

Acknowledgement

With thanks to the reviewers for their comments. The author is the editor of this special edition, but the article was anonymously reviewed several times and independently checked and verified by the overall editor of IRLCT.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The reader should note that s.28B CDPA 1988, which was introduced in 2014 and which intended to allow for private copying, was quashed– see R (on the application of British Academy of Songwriters, Composers and Authors) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin).

2 Consider the outcome of CBS Songs v Amstrad Consumer Electronics [1988] AC 1013.

3 A reference to the various Terminator films; a familiar trope in science fiction works.

4 First, a clarification. As Heidegger notes (Heidegger 1954), technologies have many forms and technology as a phrase itself can include governance. Digital technology is a form of that governance. China remains, to the knowledge of the author, the foremost example of digital enforcement. See also Higgs (Higgs 2003).

5 See s.296, s.296ZA-ZG CDPA 1988 and in the US, 17 USC §1201 and §1202.

6 ‘Green Dam Youth Escort.’ For details see http://news.cctv.com/special/yangshiwangtan/01/03/index.shtml; https://web.archive.org/web/20111117105716/http://www.lssw365.net:80/. Note that prior to the demise of the system, it became voluntary.

7 ‘While most western countries have an open and liberalised domain name registration system, the Chinese system represents the government's rigid and suspicious attitude towards the Internet, which always has been subject to public criticism’ (Wang, 2001). Unlike the US where any individual or entity who has a valid credit card can apply for a top-level domain name within a few minutes, the PRC's domain name registration is open only to entities and organisations that are incorporated or registered under Chinese law.

8 The system has the potential to be most rigorously enforced in physical areas such as Internet Cafes. When visiting an Internet Café, it is necessary to fill in the Police File Report Form, the Net Access Responsibility Agreement, and an ISP contract. The contract states that 'if anything out of the ordinary is discovered … you will be fined accordingly'.

9 In the PRC, for instance, ICPs (Internet Content Providers) are required to maintain records of all the information that has been posted on their websites, and all the users who have dialled onto their servers for the last 60 days. Websites normally display a certificate to show that they have performed the appropriate registrations.

10 The Guardian, NSA files decoded, available at https://www.theguardian.com/us-news/the-nsa-files (accessed 30th December 2019); Snowden PPT available at https://www.theguardian.com/world/interactive/2013/nov/01/prism-slides-nsa-document.

11 Ibid.

12 Investigatory Powers Act 2016 c.25.

13 See s.62 Investigatory Powers Act 2016 ibid.

14 The nature of the State also means that an aggrieved copyright holder could, if he had enough guanxi with the relevant officials, be able to obtain details of potential copyright infringers.

15 Norwich Pharmacal Co. & Others v Customs and Excise Commissioners [1974] AC 133

16 Golden Eye v Ben Dover Productions [2013] RPC 18

17 s.21 Trade Marks Act 1994, s70 Patents Act 1977.

18 C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV [2012] 2 CMLR 18; C-70/10 Scarlet Extended SA v SABAM [2012] ECDR 4

19 See e.g. s.22-27 CDPA 1988.

20 See s.16 CDPA 1988; Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch)

21 Inducement has been used in the US not the UK: For the US see Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 125 S.Ct. 2764 U.S., 200 (Sup. Ct., 2005) but note this was adapted from patent law – in the UK, there is the same doctrine in patent and there is no reason why it could not be similarly transposed -see Unilever Plc. v Gillette (U.K.) Limited [1989] R.P.C. 583 (CA).

22 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC Article 17.

23 http://www.copyrighthub.org/.

24 See, for example, http://www.theregister.co.uk/2003/09/24/riaa_withdraws_300m_lawsuit_against/.

25 Also see Universal City Studios v Reimerdes 111 F.Supp.2d 294 S.D.N.Y., 2000; Chamberlain Group, Inc v Skylink Technologies, Inc 381 F.3d 1178 (Federal Circuit, 2004); MDY Industries, LLC v Blizzard Entertainment, Inc 629 F.3d 928 (9th Cir. 2010)

26 Whalen, ‘The unofficial Cookie FAQ’ available at http://www.cookiecentral.com/faq/.

27 From empirical interviews, evidence on file with the author (SLS and RIVENTA funded research, see https://socialsciences.exeter.ac.uk/law/research/projects/project/?id=249 and https://socialsciences.exeter.ac.uk/law/research/projects/project/?id=237).

28 http://www.theregister.co.uk/2004/12/03/snocap_launch/.

29 For instance, some message boards require users to have a certain number of posts before the can access particular sections of the boards. On one website, it was only possible to obtain lists of servers hosting pirated software if 500 posts by the user had been made.