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Critical Analysis of Intellectual Property and Digital Liability in the UK and EU
Introduction
Intellectual property law and digital liability are evolving areas shaped by technological innovation and cross-border commerce. Legal frameworks must balance the protection of creators and rights holders with access, innovation, and public interest. This essay critically examines five contemporary issues in UK and EU law: non-literal copying of computer programs, competing claims over registered trade marks on websites, Article 13 of the EU Digital Single Market Directive, the Exhaustion Doctrine, and the liability of Internet Service Providers (ISPs) for defamation. It draws on case law, statutory provisions, and scholarly commentary to provide a critical evaluation.
Non-Literal Copying of Computer Programs: Expression vs Idea
The UK courts have long grappled with whether copyright protection extends beyond the literal expression of software to its non-literal elements, such as structure, sequence, and organisation. In Computer Associates International, Inc v Altai Inc [1992] (applied in the UK), the Abstraction-Filtration-Comparison (AFC) test became a benchmark for distinguishing protectable expression from unprotectable ideas.
Critically, UK courts have extended protection to non-literal elements where copying demonstrates substantial similarity, effectively blurring the line between expression and idea (Nova Productions Ltd v Mazooma Games Ltd [2007] EWHC 1458). Scholars argue that this expansion risks granting monopolies over functional ideas, potentially stifling innovation (Gibson, 2018). Conversely, proponents contend that such protection prevents misappropriation of a programmer’s creative effort, recognising the investment in software development (Bently & Sherman, 2014). While the courts strive to preserve the idea–expression dichotomy, in practice, non-literal copying cases reveal a tension between safeguarding creativity and limiting monopolistic control over functional ideas.
UK Trade Mark Claims on Websites: Accessibility/Use and Disclaimers
UK courts have developed two primary approaches to resolving competing claims over the use of registered trade marks online: the accessibility/use approach and the use of disclaimers.
The accessibility/use approach examines whether the website’s content is likely to be accessed by UK consumers and whether such use constitutes trade mark infringement (Interflora Inc v Marks & Spencer plc [2014] EWCA Civ 1403). Courts focus on likelihood of confusion and territorial reach, recognising that global online presence complicates traditional territorial trade mark rules.
Disclaimers serve as a mitigating factor, signalling to users that there is no association with the trade mark owner. While disclaimers may reduce liability, their effectiveness depends on visibility and clarity (McCarthy on Trademarks, 2022). Critics argue that over-reliance on disclaimers shifts the burden to consumers to navigate potential confusion, raising questions about proportionality and the protection of trade mark rights.
Article 13 of the EU Digital Single Market Directive: Obligations of Platforms
Article 13 (now Article 17 under the final directive) imposes obligations on digital platforms like YouTube, Facebook, and Twitter to prevent the unauthorised uploading of copyright-protected content. The directive shifts responsibility to platform providers to obtain licenses or implement filtering measures.
Proponents argue that this approach strengthens rights holders’ enforcement capabilities, addressing widespread copyright infringement online (European Commission, 2016). Critics contend that mandatory upload filters risk over-blocking lawful content, including parody and commentary, potentially infringing on freedom of expression (van Eechoud, 2019). The proportionality of these obligations depends on the balance between technical feasibility, user rights, and the scope of content monitored. The directive represents a significant evolution in platform liability but raises complex challenges for implementation.
