13 February 2003

Edward Alder

It has been remarked that “the Internet is one big copying machine”. The quip itself has been reproduced on the Internet so many times that it is difficult to track its source reliably.

It is often said that the fact that the Internet works by, well, copying makes a mockery of traditional copyright and trade mark law. Few business sectors have felt this quite as strongly, and to date appeared quite as helpless, as the recorded music industry. However, the last few weeks have seen a blaze of results for the music industry in their ongoing battle to end unauthorised copying of music via the Internet. None is surprising to copyright lawyers.

The Recording Industry Association of America is a music industry association which is authorised to enforce copyright held by its industry members. The RIAA won a ruling at the end of last month against a US based ISP confirming copyright holders’ rights under the US Digital Millennium Copyright Act to issues a subpoena to the ISP requiring it to disclose the identity of customers who have used the KaZaA ‘peer to peer’ file swapping site to download music tracks.

Could it happen in pop music mad and Internet savvy Hong Kong? Not in quite the same way. For a start, while our Copyright Ordinance does contain recent amendments similar to certain provisions of the US Act, there is no similar right to disclosure of third party information from ISPs.

Additionally, Hong Kong ISPs are bound, at least where individual customers are concerned, by the Personal Data (Privacy) Ordinance. Under that legislation it is hazardous for any business to disclose customer information to third parties on request with anything short of a court order.

Those points made, Hong Kong courts do have common law powers to grant orders against third parties to assist potential claimants to discover the names of wrongdoers and preserve evidence of wrongdoing. These powers are often used in intellectual property cases and it may be only a matter of time before someone takes on an ISP here.

The real question is what the companies are going to do with the contact details once they get them. A David and Goliath style action against an individual is likely to be disastrous from a public relations point of view and will certainly not be cost effective.

Over in the UK the orange-liveried Easyinternetcafe chain has been making a brave but somewhat ill fated attempt to fend off a legal onslaught from a group of record companies. As in the US case, a music industry body, the British Phonograph Industry Limited, led the way on behalf of the industry plaintiffs.

The companies applied for orders shutting down a service offered by Easyinternetcafe that allowed customers to download and copy music from the Internet to CD on the café premises.

Last week the English High Court gave a ruling against Easyinternetcafe effectively dismissing their defence arguments out of hand.

Easyinternetcafe’s principal argument would have made Pinocchio squirm. They said it was not their staff that did the copying but the customers, and the customers did so for ‘private and domestic use’, so that no injunction should be made against Easyinternetcafe. To use the service the customers selected the tracks from Internet sites and saved them to an Easyinternetcafe server. Not the least difficulties with the defence were that it was café staff who actually transferred the music files from the server to the customer’s CD and they charged £5 for doing so.

In Easy Group’s Chairman Stelios Haji-Ioannou post-ruling statement he said that “copying music over the net is no different from videotaping a programme to watch later, and that is legal.” Very true, but very irrelevant under existing copyright legislation.

Given the similarities between our Copyright Ordinance and England’s Copyright legislation and the common approach of our courts to granting injunctions in copyright cases, the outcome would almost certainly be the same if the same facts were to occur in Hong Kong.

Finally a result from continental Europe where a record company has succeeded in getting orders from a Barcelona court effectively shutting down local operations of the ‘Spanish Napster’, Weblisten ran the argument that uploading a track to the Internet as an MP3 file constitutes a public performance of the track and that it had the necessary authority for that from the relevant Authors’ and Artists’ Collecting Society. The court held that under TRIPS agreement and the EU Copyright directive uploading MP3 files is copying, not performance.

This was an interesting attempt to equate the presence of a track ‘on the Internet’ with theatre or perhaps broadcasting. The reality is that data files do not hover as ‘performances’ in cyberspace but reside as copies in web server memory and each act of downloading involves making a further copy.

First published in the South China Morning Post on 11 February 2003.