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Mapping the public domain on the www: of benefits, privileges and contract law Pauline McBride University of Glasgow

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Presentation on theme: "Mapping the public domain on the www: of benefits, privileges and contract law Pauline McBride University of Glasgow"— Presentation transcript:

1 Mapping the public domain on the www: of benefits, privileges and contract law Pauline McBride University of Glasgow

2 Argument Discussion of the public domain in relation to information available on the internet must take account of contract law Specifically the discussion must take account of the impact of Terms of Use The public domain (in a sense that encompasses freedom from contract) may be limited to looking at and acting upon information available on open publicly accessible websites The Courts should direct that browse wrap Terms of Use are not binding on users where use is so limited

3 Scope Conception of the public domain which encompasses the notion of freedom from contract (Lon Fuller) Interested in browse wrap Terms of Use ‘A browse wrap agreement does not require that the purchaser indicate their agreement by clicking on an “I Agree” button. All that is required is that they use the product after being made aware of the product’s Terms of Use.’ Century 21 st v Zoocasa Focus is on English law

4 Outline Overview of Terms of Use Deployment and impact Challenge to browse wrap ToU from existing contract law principles with a view to determining the scope of the public domain Tentative conclusion that the public domain is limited to looking







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14 Should you fail to register any of the evaluation software available through our web pages and continue to use it, be advised that a leather- winged demon of the night will tear itself, shrieking blood and fury, from the endless caverns of the nether world, hurl itself into the darkness with a thirst for blood on its slavering fangs and search the very threads of time for the throbbing of your heartbeat. Just thought you'd want to know that. Alchemy Mindworks accepts no responsibility for any loss, damage or expense caused by leather-winged demons of the night, either. my6.html

15 So what?

16 Concerns about browse wrap ToU The terms are typically one-sided and unfair Terms of Use used as both ‘sword’ and ‘shield’ in litigation ‘in terrorem’ or ‘chilling effects’ Websites may impose ‘super-copyright’ restrictions on the use of information – Within the UK many such restrictions are now unenforceable in relation to certain of the copyright exceptions as a result of changes effected following the Hargreaves Review

17 Key concern Browse wrap ToU involve an attempt to impose contractual restrictions in connection with an exchange that is not essentially contractual Within the UK and across Europe no clarity as to whether browse wrap ToU enforceable Within the US provided the user has notice of the ToU they will in principle be enforceable

18 Main objective To present three separate challenges to the enforceability of browse wrap ToU based on orthodox principles of English contract law 1)An argument that the supply of particular kinds of information by websites cannot be contractual at least in relation to consumer users because as between website and consumer the information has no economic value

19 Main objective 2)An argument concerning the illusory nature of ‘right to control access’ under the Computer Misuse Act 1990 3)An argument that browse wrap ToU are not contractual for lack of consideration and mutual assent

20 Essentials of a contract (English law) Consideration Mutual assent (or consent) – Offer met by an acceptance Intention to be legally bound Note: These requirements also apply in the US

21 Two Questions Does the website give consideration in exchange for the user’s promise? Does the user assent?

22 Consideration ‘something of value in the eyes of the law’ A ‘benefit’ to the recipient (the user) Consideration – Must have economic value – Must entail a transfer of value that would not have been made in the absence of the user’s promise – Must not be illusory – Must be given in exchange for the user’s promise

23 A right way and a wrong way to ask if there is consideration The wrong way: – Look for a benefit – Conclude if there is a benefit there is consideration – v Verio US Court of Appeals Second Circuit The right way: – Look for a benefit – Ask if the benefit was truly given in exchange for the user’s promise – Requires (1) identification of the benefit (2) assessment as to when it was conferred and (3) whether it would have been given anyway in the absence of the promise

24 The wrong way The benefit consists in either – Access to the website (either a de facto grant of access or a service consisting in a series of acts that have the effect of allowing access) – Use of the information Conclusion: there is consideration

25 The right way The first problem – Clarity about the nature of the benefit(s) – Two separate benefits or only one? – (One) access to website with resulting ability to use information? – (Two) access and (separately) use?

26 The right way: Svensson suggests an analogy C-466/12 Svensson – Decision by European Court of Justice on copyright infringement and linking – Concerns the ‘making available’ right – The ECJ decided that linking to content on an publicly accessible website entailed making such content available such that the ‘making available’ right was engaged – For the right to be infringed however, the content had to be made available to a ‘new public’ – Since the website to which the link was created was accessible to the world at large there was no infringement

27 The right way: Svensson suggests an analogy Svensson indicates that a website, like a link, makes content available Svensson implies that content is made available regardless of whether anyone accesses the content: it is available once it is accessible on the internet The jurisprudence concerning the making available right developed in relation to broadcasting Svensson points to an analogy between broadcasting and websites that assists in making sense of the exchange between website and user

28 The Broadcasting Analogy Making available

29 Analysis of the Benefits in the Broadcast Analogy 2 distinct stages at which the broadcaster may provide a benefit (1) the broadcaster makes the information available to the recipient (2) the broadcaster may grant a licence or permission for use of the information already made available

30 The Broadcasting Analogy Stage 1 benefit – No contract exists between broadcaster and recipient Stage 2 benefit – A permission to use the information will usually be contractual

31 Applying the analogy to open, publicly accessible websites Stage 1 benefit – Grant of access/making available Stage 2 benefit – Permission to use information

32 The right way to ask if we have consideration Stage 1 – Access/making available – No consideration since the content is made available without any reference to or exchange with the user – Once the website is configured so as to be publicly accessible, the content is available (Svensson)

33 The right way to ask if we have consideration Stage 2 benefit – Permission/licence to use information – Probably consideration even if the permission is narrower than the permission afforded under law BUT – Would the permission have been granted in the absence of the exchange? – May depend on the planned use – Insights from Interflora v Marks and Spencer

34 The effect of the doctrine of consideration Stage 1 benefit  Stage 2 benefit 

35 The doctrine of mutual assent Browse wrap ToU present a ‘hard case’ No express consent Consent may be implied from conduct provided the conduct is ‘unequivocally referable’ to the contract that is said to exist There may be scope for an inference of assent where one party takes the benefit that is the subject matter of the contract


37 The doctrine of mutual assent Taking of the benefit will only operate as assent where the benefit taken is one that has its source in the contract alone

38 Stage 2 benefit Permission to use information that has already been made publicly available To what extent does use of the information entail taking of a benefit whose source is in the contract alone?

39 Mapping the extent of a Public Domain The benefit of use of information may flow from the absence of legal restrictions (that is, the user’s privileges) and not only from contractual permissions Where the benefit is within the scope of such ‘public domain’, it cannot have its source only in the contract In such cases the taking of the benefit, that is the use of the information, cannot give rise to an inference of assent

40 Figuring out the Rights Matrix copyright database right confidentiality misappropriation unjust enrichment

41 UK Copyright Regime Copyright subsists only in specified categories of works Copyright does not subsist in ideas but the expression of ideas Generally for copyright to subsist there must be a minimal, threshold level of creative input Raw data, such as prices, flight times, names, addresses, stock information, will not attract copyright protection

42 UK Copyright Regime Copying is a ‘restricted act’ Copyright is infringed where copying takes place in relation to the whole or a substantial part of the work Where the US has a broad ‘fair use’ defence we have a set of narrow, fiddly exceptions, generally limited to copying for a range of non-commercial uses, including research, data mining, and teaching

43 UK Copyright Regime Case C-360/13 Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others – Viewing websites a ‘special case’ such that users do not require a separate authorisation from rightsholders in relation to the copying that occurs when a webpage is displayed on-screen or stored in the user’s browser cache

44 UK Copyright Regime Two key points 1)Looking or viewing does not require authorisation 2)Much of the data (including data likely to be of interest to web scrapers) may not benefit from copyright protection

45 Impact of Absence of Copyright Protection Ryanair v Vivacances (Opodo) 2012. Ryanair v Atrapalo, SL 2009. Ryanair v Vacaciones Edreams, SL 2009. Ryanair v Red Universal De Marketing Y Booking Online, SA 2012. Ryanair v VTours GmbH 2009. Ryanair v Billigfluege De GmbH [2010] IEHC 47.

46 Database Right Is a website a database? ‘from the user perspective, the database can sometimes appear as a black-box, not enabling its user to determine without doubt if its protected or not.’ Martin Husovec

47 Database Right For the database right to apply the maker must have made a substantial investment in obtaining, verifying or presenting the contents of the database Obtaining implies that the maker must have collected existing materials Where the maker creates the contents he must show substantial investment in verification or presentation

48 Database Right Prohibitions in respect of extraction and re- utilisation of the whole/substantial part of the database or repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database

49 Database Right Where the database is made available, the database right does not allow the rightsholder to prevent consultation of the database for information purposes Case C-202/12 Innoweb

50 The example of Ryanair Ryanair Ltd v PR Aviation BV Dutch Courts found that Ryanair’s database was not protected under the database right but that it was protected under ‘rogue’ Dutch law provisions Referred to ECJ Hearing data 12 November 2014

51 Database Right Two key points 1)Many websites (probably most retail websites) may not benefit from the protection afforded by the database right 2)Consultation of (looking at) the database does not require authorisation

52 Misappropriation Possible to make a case (as Hazel Carty does) that some decisions of the Courts suggest a nascent common law right of misappropriation of valuable intangibles, but in reality in the UK there is no general tort (delict) of misappropriation

53 Unjust Enrichment On the other hand English law provides a remedy for unjust enrichment Usually such claims relate to failed contracts for services – e.g. A enters into discussions with B about building a conservatory. A begins work before the contract is signed. B fails to pay. In principle such claims might extend to situations where B benefits from A’s information

54 Unjust Enrichment ‘reaping where others have sown’ Claimant must show – The transfer of a valuable benefit to the defendant – That the defendant requested or freely accepted the benefit – That the defendant knew the claimant expected some form of compensation in exchange

55 Unjust Enrichment Unclear what ‘free acceptance’ might mean where the website chooses to make its contents publicly accessible – Something more than looking and acting upon the information? (Ladymanor Ltd v Fat Cat Café Bars Ltd) Unclear whether or in what circumstances the benefit of use of information will be supposed to have value Such claims usually limited to commercial re-use of information

56 Some Tentative Conclusions Looking and acting upon information available on an open publicly accessible website does not operate as assent to browse wrap ToU To the extent the user limits his activities to looking and acting on such information he may not be fixed with browse wrap ToU Any other activities may operate as assent such that the ToU will in principle be binding on the user Copyright and database contract override provisions will not cut down the entire contract but only those terms which impact on the excepted acts

57 Thankyou

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