HATII SHAKE 4 November: Pauline McBride

Mapping the public domain on the
www: of benefits, privileges and
contract law
Pauline McBride
University of Glasgow
[email protected]
• 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
• 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 21st v Zoocasa
• Focus is on English law
• 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
Should you fail to register any of the
evaluation software available through
our web pages and continue to use it,
be advised
that a leatherwinged 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.
So what?
Concerns about browse wrap ToU
• The terms are typically one-sided and unfair
• Terms of Use used as both ‘sword’ and ‘shield’ in
• ‘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
Key concern
• Browse wrap ToU involve an attempt to
impose contractual restrictions in connection
with an exchange that is not essentially
• 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
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
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
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
Two Questions
• Does the website give consideration in
exchange for the user’s promise?
• Does the user assent?
• ‘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
– Must not be illusory
– Must be given in exchange for the user’s promise
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
– Register.com 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
– 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
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
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?
The right way: Svensson suggests an
• 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
The right way: Svensson suggests an
• 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
The Broadcasting Analogy
Making available
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
The Broadcasting Analogy
• Stage 1 benefit
– No contract exists between broadcaster and
• Stage 2 benefit
– A permission to use the information will usually be
Applying the analogy to open, publicly
accessible websites
• Stage 1 benefit
– Grant of access/making available
• Stage 2 benefit
– Permission to use information
The right way to ask if we have
• 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)
The right way to ask if we have
• Stage 2 benefit
– Permission/licence to use information
– Probably consideration even if the permission is
narrower than the permission afforded under law
– 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
The effect of the doctrine of
• Stage 1 benefit
• Stage 2 benefit
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
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
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?
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
• 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
Figuring out the Rights Matrix
database right
unjust enrichment
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
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
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
UK Copyright Regime
• Two key points
1) Looking or viewing does not require
2) Much of the data (including data likely to be
of interest to web scrapers) may not benefit
from copyright protection
Impact of Absence of Copyright
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.
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
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
Database Right
• Prohibitions in respect of extraction and reutilisation 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 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
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
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
• 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
Unjust Enrichment
• On the other hand English law provides a remedy
for unjust enrichment
• Usually such claims relate to failed contracts for
– 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
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
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
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
• [email protected]

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