PRE-COMMENCEMENT DISCOVERY AND THE ODEX LITIGATION: COPYRIGHT VERSUS CONFIDENTIALITY OR IS IT PRIVACY?

• Citation: (2008) 20 SAcLJ 591
• Date: 01 December 2008
• Published date: 01 December 2008

This article examines whether internet service providers are under any duty to disclose the names of subscribers whose accounts can be shown to be associated with infringing activity. This question involves tension between the economic interests of copyright owners/licensees, the privacy interests of internet users and the economic interests of the internet service provider. This tension in turn raises age-old problems of balance and proportionality between privacy, confidentiality and other competing rights and freedoms as well as the interests of society at large. The article concludes by briefly touching on privacy areas from outside of copyright and the Internet: including the increasingly important area of biomedical privacy.

I. Introduction

1 The opening decade of the new millennium has witnessed new life in a very old and venerable social concept: individualism and rights of privacy. For some, privacy may be rather formless or amoebic in appearance. Indeed, amoebas are shapeless, simple and ubiquitous: but, perhaps from an evolutionary point of view, this is also their strength. Amoebas probably evolved fairly early in the development of the evolutionary tree of life: they were likely around during the age of dinosaurs and unless mankind destroys all life on earth will still be around at the end of time when our planet is consumed by the sun or some such similar cosmic disaster. Similarly, however hard it may be to pin privacy down, few will doubt that the basic premise of a right to be let alone has been around since the dawn of modern civilization.

2 Individualism, privacy, freedoms, rights, obligations, responsibility and society: this is the perennial melting pot of ideas, values and principles in which privacy has been bubbling these many years. In recent years, hardly a day goes by without some reference in news media to privacy driven issues: up skirt photographs of

unsuspecting members of the public, bedroom scenes exposed on the Internet, personal contact data and mass marketing, digital shadows, spam, data banks, CCTV cameras, DNA profiling, industrial espionage, computer hacking, cookies and other types of internet usage profiling, medical databases and so forth.1

3 Individuals complaining have ranged from those who are famous by choice (actors, fashion models) to those who have had fame thrust on them (princes and princesses) all the way through to those who choose to live in blissful anonymity. All are individuals or those who claim to represent interests of individuals.

4 That famous unemotional Human/Vulcan, Commander Spock of the starship Enterprise, who had been asked by his very human and emotional friend/philosopher, Captain James T Kirk why he was sacrificing his life to save the Enterprise, replied to the effect: “because the needs of the many outweigh the needs of the few or the one.” Yet later, when Kirk and his brave crew had made enormous sacrifices including the destruction of the Enterprise to restore Spock’s “spirit” to his reborn body and Kirk was asked by Spock why he did this, Kirk was able to get in the proverbial and very human last word: “because sometimes the needs of the one, outweighs the needs of the many!”2

5 Much has been written on the relative importance of privacy and other rights, freedoms and the interests and needs of society as a whole. Society of course depends on social interaction and social intercourse. It requires the building of a community and collective responses and responsibilities and sacrifices for the good of the whole. No man is an island entire of itself.3 We are all connected to and part of the greater whole. And yet, perhaps the most powerful argument in favour of privacy and individual self-autonomy, including informational self-autonomy, is that it creates the conditions necessary for social intercourse, social interaction and the development of individual potential leading towards the advancement of society and civilization. Great leaders in politics, government, business, science, industry and society at large tend to be unique special individuals: persons who were

there at the right time with the right personal history, character, abilities and idiosyncrasies.

6 This is not the time and place to rehearse all the arguments as to why privacy is important. It is perhaps enough to recall that privacy, together with all the other rights and freedoms that we have come to expect as an individual in society, come with responsibilities and duties to our fellow human beings and indeed society as a whole. No right or freedom is absolute or free from corresponding duties and responsibilities. Privacy is not the enemy of freedom of expression or freedom of information. Privacy, in some senses, is an individual’s ultimate freedom of expression. Social relationships do not develop on the basis of the principle: all human relationships are equal in terms of their intimacy and degrees of trust. Some social relationships, by individual choice are more equal than other social relationships. In other cases, duties and responsibilities to society as a whole may require greater informational transparency in the name of the needs of the many.

7 With perhaps one exception, nowhere is the debate over privacy and social responsibility greater than in connection with that mighty engine of the modern information technology age, the Internet and the World Wide Web! The exception comprises that other great science driven “ology” of the 20th century: biotechnology, life sciences and personally identifiable genetic information. Marry these together and the need for balanced and proportionate responses in the 21st century becomes deeply underscored.

8 What the Odex litigation4 in Singapore amply demonstrates is that the absence of a stand alone recognised right of privacy does not mean that privacy does not play an important (possibly increasing) role in shaping and encouraging the evolution of legal principles or by being taken account of simply as an important factor in exercising and guiding judicial discretion.

9 This article discusses privacy and confidentiality in the context of applications by aggrieved persons to discover the identity of intellectual property (“IP”) infringers. The cloak of anonymity afforded by the Internet has made the task of enforcing intellectual property (and other rights such as those protecting reputational interests) increasingly problematic. The intellectual property right (“IPR”) owners and those whose business depends on commercial exploitation of IP assets demand access to information as to the identity of infringers. Efficient and effective procedures are needed. Home subscribers to the Internet and internet access service providers may beg to differ: citing privacy,

confidentiality, business inconvenience and in some cases a philosophical or jurisprudential disagreement with the notion of strong copyright and the information society. Given judicial recognition of the importance of privacy as a public policy or public interest factor in the resolution of the conflict between these competing interests, this article concludes by identifying some other areas (including some from within biomedical research) where privacy is becoming a hotly debated issue.5

II. What was the Odex litigation about?

10 Odex concerns copyright, confidentiality, privacy and the Internet. Odex is about the Internet as a tool for disseminating information, as a vehicle for commerce and as a community of users. The internet community is huge: at once both national and international and made up of the same range of disparate but connected and overlapping interests that make up the international real world community of individuals, businesses and societies.

11 There are creators, authors, publishers, traders and businesses that see the Internet as a tool to reach a worldwide audience. There are educators who see the Internet as a valuable educational tool capable of providing a more level playing field in this information rich world. There are students and individuals who see the Internet as a means of self-expression as well as a means of providing or accessing entertainment and fun orientated products/services. There are, indeed, many more groups of users within the community of the Internet with different needs, interests and wants.

12 Shorn of the technicalities, Odex is ultimately about rights and responsibilities: about freedom and obligations. It is about the need for proportionality and balance: respect for all the different needs, interests and wants of different groups within society.

A. Odex, the users and Pacific Internet: The copyright setting

13 Odex is a Singapore company claiming to have acquired the rights to distribute “anime titles” in the Singapore (and regional) market. These anime titles were assumed to enjoy copyright in Singapore as species of cinematograph films (videos). The copyright in Singapore belonged to Japanese owners and much time was spent determining the precise legal relationship between Odex and the

Japanese copyright owners.6 Various permutations were possible: that Odex was an exclusive licensee for the Singapore market; that Odex was a non-exclusive licensee; that Odex was a sub-licensee of the main licensee for Singapore; that Odex was generally empowered to act as agent to protect the interests of the Japanese copyright owners.

14 The relationship issue in the Odex case was important as it dealt with the question as to whether Odex enjoyed the legal standing (locus standi) to sue for copyright infringement in its own name and to apply to the court for discovery orders. Whilst the matter of locus standi is largely a question of “internal” copyright law, it will be touched on briefly below as it does impact on the need to ensure a proper balancing of the rights and interests of copyright owners, copyright business interests and the interests of users and the public in...