By John Wilks and Alastair Mackichan
The UK Intellectual Property Office (the “IPO”) announced last month that Google and Bing have agreed to enter into a voluntary code of practice with the UK creative industries (represented by the British Phonographic Industry, the Motion Picture Association and the Alliance for Intellectual Property) (the “Code”). The “Code of Practice on Search and Copyright” came into force on 9 February 2017 and aims to push websites offering copyright infringing content further down search result listings.
The Code follows research conducted by the IPO which demonstrated that 74% of consumers used a search engine as either a discovery or navigational tool in their initial viewing session on domains with infringing content. With this in mind, the Code will focus on automated demotion in search engine listing results of infringing websites, following the receipt of sufficient take-down notices from rights holders. Where an infringing site is demoted, it will, according to the IPO, “be removed from the first page of search results”.
Other initiatives provided for in the Code include:
- information exchange – the search engines and rights holders will exchange detailed information in order to better understand how users are searching for content and to use take-down notices more effectively to quickly demote domains demonstrated to be dedicated to infringement;
- autocomplete – the parties have agreed to seek to prevent the generation of Autocomplete suggestions which lead consumers towards infringing websites; and
- advertising – search engines will provide processes for the removal of ads (such as the sponsored ads that are generated through the use of Google AdWords) that link to infringing content.
Potential for Legislation
The Code is not legally binding. However, if the Code does not achieve its intended objectives (essentially removing links to infringing content from search results and replacing them with links to legitimate content) by 1 June 2017, the IPO will prepare a report which recommends further measures. Such report could recommend legislation with powers for the Secretary of State to impose financial penalties or other sanctions on a search engine that fails in its anti-piracy obligations.