Book review: ‘Copyright and Information Privacy: Conflicting Rights in Balance’

In ‘Copyright and Information Privacy: Conflicting Rights in Balance’, Federica Giovanella takes us through the regulation of file-sharing in the United States, Canada and Italy to examine its impact on the privacy rights of internet users. More specifically, Giovanella looks at the jurisprudence framing requests filed by right holders against internet service providers (ISPs) for the disclosure of the identity of internet users for the purpose of enforcement. 

The book will be useful to both students and academics of IP, as it pulls together different strands in the relevant scholarship discussed, namely: (1) the legal doctrines underpinning the exercise of the balancing of rights in each of the three legal systems examined, together with how these doctrines have developed within the legal scholarship (Chapter 1) ; (2) the evolution of the jurisprudence on file-sharing in each of the countries (Chapter 2); and (3) the evolution of privacy protection on the internet of users alleged to have committed copyright infringement (Chapter 3).

Copyright vs privacy rights?
Guess who wins this one...?

The comparative perspective of the book aims at contrasting the various legal traditions against the general conception of copyright and privacy rights, respectively. In so doing, the author shows, that in the battle between copyright and privacy rights, the latter wins – at least in most jurisdictions and in the majority of cases.

Giovanella concludes that whilst the ultimate result tends to be similar, there are no overarching conclusions that can be reached within each of the legal systems considered, namely the common law, civil law, and mixed common and civil law, represented by the US, Italy and Canada. Thus, the US is the jurisdiction in which copyright holders tend to prevail over the rights of internet users most consistently. In contrast, Canada and Italy both offer somewhat more protection for the protection of privacy rights (p 279), although, as indicated, copyright holders are more likely to win in all three systems.

Will copyright enforcement be
the new pretense of  fishing expeditions?

Despite this, the tools which judges have used to resolve this conflict of rights vary. If we look at the way that judges construct their reasoning to settle disputes over the issue of whether to enjoin an ISP to disclose personal data, we find that the US and Italy have both devised a test specific to copyright protection (p. 278), whilst Canada relies on the case law applicable civil-law-based subpoena powers.

Giovanella’s concluding remarks stress that, even within the same jurisdiction, how these rights should be balanced can vary. The author contrasts Judge Bates’ view that the provisions of the DMCA provide enough protection for privacy rights (in Re Verizon DDC 2003) with Judge Garcia’s position that the harm caused by disclosure would be too great a violation of the users’ privacy rights (in Capitol Records, Inc v Does 1-16). Giovanella suggests that an injunction to release personal data within the context of a copyright infringement proceeding might prove to be so effective in leading to the disclosure of sensitive information that it  risks being routinized by parties for disputes unrelated to copyright, given the ease by which court clerks tend to issue subpoenas in the US.

Ironically perhaps, Giovanella seems to conclude that the only consistent feature of all three jurisdictions on the balance between copyright and privacy protection is the lack of consistency in the case law. In this context, the author stresses how influential the personal view of the judge(s) regarding the respective rights contributes to the shaping of the outcome of a case (p. 280). This is in part due to the fact that there is no clear legislative guidelines on this question in any of the jurisdictions examined (p. 280).

Will the EU one day save the day? 

Perhaps this will change with the Directive Proposal for a copyright reform, which, in its current form, seeks to clarify the role of service providers in copyright enforcement (whether from the infringement or remuneration perspective, see Articles 13 and 14, respectively). Should the Directive come to pass in more or less its current form, national legislators in the EU may have more appetite for seeking to regulate this area of the law, a result that is much needed! The potential contribution of the Directive Proposal is not discussed in Giovanella’s analysis, but this Kat looks forward to reading her insights on this question in the future. 

Book reviewed: Federica Giovanella, Copyright and Information Privacy, Conflicting Rights in Balance, Edward Elgar, 2017. 360 pp ; Hardback Price: £100.00 Web: £90.00 ; Publication Date: 2017 ; ISBN: 978 1 78536 935 3. See here.