Briefing

Information Matters: Search engine "pessimisation": an upward trend for rights holders?

Posted by: Owen O'Rorke and Adam Fletcher | Date posted : 02/03/2017

Under a new Voluntary Code of Practice announced last month, the two leading search engine operators (that is, Google and Microsoft – not that many people outside Microsoft have yet taken to using the verb "to Bing" as a shorthand for web searches) have committed to upholding the interests of bona fide rights holders in the UK from 1 June 2017.

The novel approach is in "demoting" websites which have repeatedly been served with copyright infringement notices, so that they do not appear on the first page of results: a form of search engine optimisation in reverse. As part of their commitment, auto-complete functions in search boxes will also remove terms which may lead users in the direction of websites hosting pirated material.

The Code was agreed on 9 February between the search engine heavyweights and various bodies representing UK rights holders: notably the BPI and the Motion Picture Association, supported by the cross-sector Alliance for Intellectual Property (whose roster also includes PRS For Music and the Premier League). The UK Intellectual Property Office (IPO) led the discussions with support from the Department for Culture, Media and Sport, at a series of government-chaired roundtables. Ofcom has also been involved in examining the way that search results are presented to users, as part of an exploration of methods to help users avoid websites hosting pirate material more easily.

Jo Johnson MP, the minister for universities, science, research and innovation said (and hopefully this was not considered a particularly new or original thought): "Consumers are increasingly heading online for music, films, e-books, and a wide variety of other content. It is essential that they are presented with links to legitimate websites and services, not provided with links to pirate sites."

Record labels have for many years accused the two tech giants of ignoring piracy and dragging their feet over measures to protect copyright online. Google-owned YouTube has also come under particular criticism from the music industry, despite umbrella rights agreements in place with labels and publishers (under no little ongoing tension).

However, the courts have repeatedly steered away from placing liability at the door of intermediaries – although dissenting views have arisen as the relevant case law has rolled through various appeals, it is fair to say that courts have generally upheld the perception of search engine operators as passive rather than active contributors to any infringement of IP rights. All the same, with each case decided on a different set of facts (and so many forms of intellectual property right), there persists a degree of legal uncertainty as well as commercial unrest for the tech giants in many jurisdictions, including the UK.

This Voluntary Code of Practice may be seen as a step towards resolving these issues privately and for mutual commercial benefit, against the backdrop of the current (and seemingly endless) discussions around the Digital Single Market and the latest European Commission proposal to modernise copyright.

From a policy perspective, the first question that has to be asked is: will it really help? Studies have repeatedly shown that the majority of pirate material is accessed via direct navigation (linking), not via a search engine. The "digital native" internet user determined to access pirate material online will not be dissuaded by its failure to appear on page 1 of a set of search results: indeed, they may enjoy the thrill of seeking out a less-travelled path to new and illicit discoveries.

However, there is some evidence that time-poor older consumers – who remain a relatively reliable source of disposable income for entertainment products – will stick to known brands and first-page results, rather than risk unknown quantities – unfamiliar file formats, bit torrents, cliquey "chat rooms", Trojans and all the things they only dimly understand (and would rather not download onto their shiny Apple consumer products).

In that sense, even if it does not root out the fundamental problem, there is likely to be at least some measurable benefit to the demotion of regular offenders in favour of legitimate online marketplaces. To borrow an argument (much debated) from privacy law: even if half the internet knows where to find out the facts behind that juicy celebrity injunction, so long as there are millions who still get their gossip from print publications and passing newsstands, is there not still some value to a claimant in keeping their good name out of plain sight?

There is another, more philosophical question: is it really the job of search engine operators to interfere with users' access to sites, based on their content? This brings in contemporary debates around the freedom of the internet and freedom of expression: if Google is committed to protecting rights holders today, will it and should it be committed to helping consumers avoid "fake news" tomorrow?

Clearly, something as subjective as a news agenda presents a more acute danger of major tech companies arbitrarily, even deliberately, controlling the message – whereas copyright and trade mark law provide a (reasonably) clear legal line of authenticity. However, liberty campaigners will point to supposed abuses of intellectual property rights to suppress freedom of expression, satire, art, and public journalism, and that debate will continue.

Finally, as with the so-called "right to be forgotten" following the Google Spain decision, one has to consider the administrative costs involved in fulfilling these obligations. Over the past 12 months, Google has taken down 915 million links following requests from copyright holders. In the first six months of 2016, Bing took down over 91 million. There is already suggestion of additional legislation being considered later this year, following the first six months of the scheme: indeed, Jo Johnson has pledged to work with the IPO to evaluate progress toward a goal of "reducing the visibility of infringing content in search results by 1 June 2017."

While they may be worth many billions, if search engines are expected to invest in complying with a new regulatory or legal regime every six months then we may have to brace ourselves to lose the lucrative flagship tech giants like Google and Yahoo from our shores. As UK PLC tries to rally the positives in facing a new world of risks and possibilities outside the European Union, any perception of over-regulation could prove unattractive to investment.

However, there is a fundamental principle here. Whilst the internet revolution brings benefits to the creative industries in terms of outreach and platforms, piracy continues to go directly to the bottom line of rights-holders. Music, television shows and films are the leading media accessed via pirate sites, but the IPO estimates that – if software and books are included in that analysis – we are looking at 15% of the UK population, or 6.7m Britons, accessing pirate material online. These are all areas too where British industry prides itself as being a leader.

So it is to be welcomed that search engine operators, since they are enjoying other benefits and efficiencies to life in the UK, can demonstrate they are willing to take action. Google's spokespeople are certainly coming out with the right noises ("an active partner for many years in the fight against piracy online… committed to tackling this issue… look forward to further partnership with rights holders”, and so on).  If anything, however, the Code is lacking teeth.

For one thing, Google and Microsoft have only committed to demoting the optimisation of websites who have "repeatedly" been served with copyright infringement notices. It is a voluntary code, with no reference to fines or sanctions that they would incur if they fail to carry out their task effectively. It does not apply to the smaller search services favoured by many web-literate content hoovers. And then there is the cynical view: that the Voluntary Code is a ploy (and apparently a successful one) to avoid the harder, statutory duty otherwise likely to be imposed by government, as anticipated in the Digital Economy Bill.

Above all, it is worth remembering that the purpose of intellectual property law to encourage innovation and creativity and reward those who devote their time, qualifications, investment and gifts to it. While the law has repeatedly had to adapt in recent years to keep up with a rapidly changing technological landscape – in fact, it has usually been lapped by the time the legislation changes – this principle remains the same. This was indeed the foundation of the Hargreaves Review in 2011, and the incremental changes that have followed (see our previous piece here), and doubtless the same message will be reiterated when the next review is commissioned.

Future-proofing our creative industries is not simply the responsibility of the law, but of commercial stakeholders too. If traditional rights holders fail to keep up with the way that people access their media, and if the digital economy continues to value growth and outreach over protecting the golden goose – the artist, writer or programmer – whose content drives this growth, then society and the economy will be poorer for it. The Voluntary Code may be no more than a sticking plaster: but if it keeps one creative from becoming yet another banker or a lawyer, we will have cause to be thankful.

If you require further information on anything covered in this briefing please contact Owen O'Rorke (owen.o'rorke@farrer.co.uk; 020 3375 7348), Adam Fletcher (adam.fletcher@farrer.co.uk; 020 3375 7814) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Information Matters page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2017