Pirate Key on a KeyboardOn 9 February 2017, leading UK internet search engines and representatives from the creative industries (including film, sports, music, and publishing to name a few) entered into a landmark agreement, with assistance from the UK Intellectual Property Office (“IPO”), to cooperate in combatting online copyright infringement. The agreement, which takes the form of a Voluntary Code of Practice, includes a commitment by search engines to a target for reducing the visibility of infringing content in search results by 1 June 2017.

Enforcing and protecting IP online presents a range of challenges for brands and rightsholders, from blocking unauthorised streams of live events, to removing unauthorised copies of films or recordings, and preventing the sale of counterfeit or unauthorised ‘grey’ goods. Illegal online streams and highlights such as goal clips have presented a particular challenge for rightsholders such as the Premier League, for whom live events represent a key source of revenue. The concern is only increased by recent statistics which suggest a decline in viewing figures for live matches. With broadcasters committing billions to securing the rights to Premier League events, it is easy to see why the Premier League is so concerned to protect the value it offers its licensees and, consequently, a key revenue stream. Unsurprisingly, the Premier League has long taken a tough stance on infringing activities, with the most recent successes including prison sentences and fines imposed upon sellers of IPTV streaming devices.

But why is online infringement such a problem and why might search engines have a role to play?

Research conducted by the IPO, and published in August 2016, showed that 15% of internet users access copyright infringement (including, 24 million films, 27 million TV programmes, and 78 million music tracks illegally accessed between March and May 2016 alone). Further research conducted by Millward Brown on behalf of the Motion Picture Association of America suggests that 74% of consumers arriving at domains containing infringing content do so by “using a search engine as either a discovery or navigational tool”.

The internet is notoriously difficult to police, from fake news, to disclosure of sensitive information via outlets such as WikiLeaks, and the sale of counterfeit goods. Yet the freedoms which enable these phenomena are arguably fundamental to the nature, operation and power of the internet as we know it.

One of the most prolific sources of illegal online activity is streaming. Whilst it is often easy to identify infringing content, the difficulty faced by rightsholders is removing or blocking it. This is in part due to the ease with which such content can be shared and disseminated via social-media. Further, legislation such as the E-Commerce Regulations includes defences for “hosts” and “mere conduits” of infringing content, which, broadly speaking, mean that providers of certain online platforms and services are not liable for user-generated infringing content unless they have knowledge of it. The onus therefore falls on rightsholders to take action by serving a “take down” notice on the host in respect of each infringement. The reality of having to pursue infringing content on an effectively ‘stream-by-stream’ basis leads to what is often termed the “Whac-A-Mole” problem: each time an offending stream is removed, another appears. The policy underpinning the legal exemptions to infringement for hosts and mere conduits in these cases is that imposing a ‘monitoring’ obligation (or similar) would risk stifling the ability of such platforms (such as Google and YouTube, which do not have as their purpose the promotion of infringing content) to function, to the detriment of consumers, the internet, and arguably society at large. Indeed, the European Commission’s recent proposal to include such a monitoring obligation as part of its Digital Single Market strategy, led to some strong and well-argued criticism (for example, from the Open Rights Group) that this would simply necessitate use of “blunt” and imprecise instruments which would create unreasonable burdens on smaller operators, lead to unjustified takedowns of legal content, and jeopardise the exercise of legitimate rights such as performance of folk songs, fair quotation, and the “hard-won” UK right to parody.

The premise of the law’s position in this respect is understandable. Yet the basic functioning of certain features of search engines inevitably means that certain infringing sites make their way up the search rankings by virtue of popularity. Add to that the prevalence of piracy and the result is millions of take down requests each day, and in excess of 1.75 billion take downs to date. Clearly this is a substantial administrative burden upon both rightsholders and search engines.

The details and content of the Voluntary Code and the precise target committed to by the search engines are not presently known. However, the collaboration of search engines and rightsholders is symbolically significant. The hope is that this will represent a mutually reasonable and collaborative approach to balancing the all-important freedoms which characterise the internet and its power, with the need to facilitate the protection of artists, rightsholders and other stakeholders. At the very least, the Code should assist in relieving some of the administrative burden on both sides, by reducing the need for the serving and processing of takedown notices.