Safe Harbour and Confusing Phrases

There has been a lot of deliberation and opinion in recent days following the decision of the CJEU in the Safe Harbour case C362/14, which involved shared personal data between the US and the European continent.

Many people believe that 'Safe Harbour' has a different meaning and this is namely the immunity given to various internet service providers from litigation by section 512 to the US Copyright act 1976 and Articles 12 to 15 of the EU eCommerce Directive 2000/31/EC.

Neither piece of legislation actually use the term 'safe harbour', as the EU Directive prefers to use the term 'mere conduit'. This term is a shorthand way of referring to a set of circumstances and conditions that are likely to lead to a particular legal outcome.

There are two other examples of phrases that can cause confusion 'public domain' and 'derivative work'. These words do not carry any specific legal definition and their meanings are complex.

Public domain has a general meaning of something that is accessible by any person in the public and it often leads to the mistaken belief that this type of information is freely available and allows a person to utilise or copy it. An example of this would be if a person was to use information or obtain an image from the google search engine. There is an assumption that this is acceptable and that no copyright is attached to the material copied.

It is not helpful when legislation has had the retroactive effect of restoring copyright to works which were previously out of copyright, often in a less obvious way. It would take effect from a date in the past so that it comes within the legislative framework. Hence the concept of the public domain in the context of copyright lacks certainty.

Given that primary copyright infringement can be seen a strict liability offence, meaning that proving liability does not depend on actual negligence or intent to cause harm. However, when making a claim that a copyright work is false or no copyright is attached to the work, are not sanctioned per se. whilst, falsely attributing work to an author (section 84 Copyright Designs and Patents Act 1988 ("CDPA")) is one of the several moral rights that seek to protect a creator of works.

Derivative works is another problematic phrase, but it does have a definition within the US Copyright law (section 101) to cover a wide range of subsidiary works derived from an underlying work:

A "derivative work" is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

In other jurisdictions, there are no definitions for this phrase however it is readily understood that it means something based on pre-existing protected work. The term derivative does not appear anywhere within EU or UK copyright law.

The CDPA does not provide a definition of this phrase with the nearest equivalent being the term 'adaptation' (section 21) which would apply to a very limited list of specific examples, and only then for literary and dramatic works. This lack of statutory application means that the courts have to interpret this themselves.

There is a disparity between the courts in the USA, UK and other European member states, along with the CJEU who interpret and apply the law in this area differently hence, why there is no harmonised definition of terms like 'derivative works'.

The use of the internet plays a major role in infringement cases and this is due to the lack of uniformity between different states across the world.