A voluntary Code of Practice agreed between Google, Bing and the creative industries, announced on 20 February is the first agreement in the world which requires search engines to take active steps to make it harder for consumers to find pirated content. The Code applies only to the UK and details of its terms are presently sparse, but it appears to require the search engines to deprioritise links to copyright infringing content, i.e. push such links lower down search results rather than remove them from search completely.
The Code is the latest in a series of initiatives by the creative industries to promote licensed content and challenge pirated content. Early steps did not take off, notably the never implemented Digital Economy Act 2010 system. That would have consisted of ISPs sending notices to individuals said to have downloaded unlawful content combined with a ‘3 strikes and your out’ system for repeat infringers. Recent years have seen more initiatives, in particular an agreement for a voluntary educational letter writing campaign by ISPs. Letters started to go out last month. The creative industries have had greater success tackling the supply side of the problem, regularly obtaining site-blocking injunctions (which make it harder to access unlawful content from the UK), whilst licensing services, such as music licensing, offer an increasing range of lawful alternatives.
Time will tell whether this latest initiative makes a meaningful contribution to the battle against piracy, but the agreement of the Code is a significant statement of intent from the UK government in the ongoing debate as to whether internet intermediaries ought to take proactive steps to prevent access to unlawful content via their services.
Article 15 of the E-Commerce Directive requires that no general monitoring obligations should be placed on Internet intermediaries, but this principle was already under fire from various proposals under the Digital Single Market initiative as well as the new Code. This trend is most obvious in the context of Article 13 of the draft Copyright Directive (which appears likely to require UGC sites to operate monitoring/filtering software) and in the draft AVMS Directive, which requires Internet platforms to prevent their services being used for hate speech. Commission briefings in respect of both suggest that neither conflicts with the ‘no general monitoring’ rule, but this seems hard to sustain. Against that backdrop, the agreement of the UK Code (which was prompted by government) appears to amount to an endorsement of that direction of travel and indeed a form of (very) early implementation of the draft Copyright Directive (which still some way from being agreed). Ministerial briefings suggest that the efficacy of the Code will be reviewed later this year with a view to seeing whether UK legislation is required as an alternative, suggesting that the Code is perhaps ‘voluntary’ in name only.
The use of a government-brokered agreement rather than an open judicial or similar system to review legality of sites may cause some controversy. In response to our request the Intellectual Property Office has commented that “We do not plan to publish the code in full as the full details may allow pirates to game the system“.