Search Engines and Piracy: Lessons from the United Kingdom

By Mike Weatherly, posted on 26 February 2017

William Langland observed in the 14th century that patience is a virtue. Thomas Fuller noted some 400 years later that all things are difficult before they are easy.

From 2010 to 2015, I was an elected Member of Parliament in the United Kingdom, and during that time I was honored to serve as the Intellectual Property Advisor to Prime Minister David Cameron – the first (and only) MP to ever hold such an appointment. In that capacity I delivered a series of reports for the Secretary of State about tackling IP-related infringement, the first of which was entitled ‘Search Engines and Piracy’. That report contained a total of ten recommendations that search engines – and Google in particular, given their prominence in the search capacity – could take to reduce the incidence of online piracy, which was estimated to cost the UK £ 400 million in lost annual revenues as a result of film and music piracy. Given that the UK is only one of three states which are net exporters of music worldwide, I viewed the creative industries as an essential part of the UK’s economy, providing approximately one in every eleven jobs in the country, and I remain committed to doing whatever I can to promote them.

In preparing that first report, I spent a lot of time speaking with rights owners’ organizations and search engines on voluntary measures that could be taken to reduce the incidence of online infringement. One measure, in particular, that I proposed was for search engines (which are, after all governed by human operators and algorithms) to demote search results for sites that substantially infringe or are structured to infringe intellectual property. I would stress that I recognize that search engines are far from the ‘bad boys’ everyone tries to portray them to be – they do not create the illegal content nor do they consume it – if we are serious about stopping piracy we must address the root cause (and in particular those who make money from pirate sites) as well as the end users. But the role of introducing the two ends does need to be looked at and resolved as part of the solution.

Evidence pointed to the fact that search engines are often a source driver of piracy[1] and I suggested that pirate sites should be demoted from pages of Google’s and others search results depending on the number of infringement notices they receive. I was convinced that solution along those lines could (and should) be implemented and urged search engines and rights holders to discuss what might be practical and reasonable.

It is particularly gratifying, therefore, that some three years later following a government-chaired series of roundtable discussions (which was another one of my recommendations, by the way) a new voluntary code of practice will be in place by June 1st in the UK by Google and Microsoft to ensure that links to infringing content are de-ranked, so as to not appear prominently in search results. The code, announced only a few days ago, also involves ongoing technical consultation, collaboration, and information sharing between the parties to continually define the process and adopt new practices where needed.

Having just met with officials from Singapore’s Ministry of Law and the Intellectual Property Office of Singapore during a visit to Asia last week, I query whether a similar initiative might be feasible there as well.  Singapore is a regional leader in IP protection, building upon aspirations for an Intellectual Property (IP) Hub Master Plan released in 2012, and has taken a number of important initiatives to promote and protect creators’ rights. Such initiatives notably include amendments to Singapore’s Copyright Act enacted in 2014 enabling a procedure whereby rights owners can obtain court orders requiring the republic’s network service providers to block access to ‘flagrantly infringing online locations’ as defined by the relevant statute.

However, there doesn’t yet seem to be a corresponding obligation for search engines to demote or delist those sites from their results in Singapore, and based on discussions with copyright industry representatives there seems to be no legal basis that rights holders could undertake to demote (or delist altogether) them. Search engines operating in Singapore have voluntary programs to delist offensive imagery including child abuse material, personal information, or sexual content shared without consent. The Info-Communications Media Development Authority can also require search engines to remove content that infringes against prohibited content law.   Given that Singapore often looks to the UK for ways to help assist the fight against piracy, I am hopeful that this measure will follow soon in Singapore as well in the context of its current Copyright review. I would urge the Ministry and IPOS to have a look at my reports and see what other recommendations might also be applicable to Singapore.

The UK Government was instrumental in securing the voluntary agreement in the United Kingdom. Given the Singapore Government’s leadership role in promoting ongoing reform within its jurisdiction, perhaps a corresponding role could be undertaken by them there. I would always advocate a good constructive dialogue between interested parties and bringing people together to talk to one another.

Other jurisdictions throughout Asia, most of whom don’t yet measure up to Singapore’s levels of IP protection, might then be similarly inspired to bring parties together in a spirit of cooperation to promote their own creative industries by taking steps to reduce online infringement. It is not the ‘silver bullet’ solution to stop online infringement – my ‘Follow The Money’ recommendations for taking away financial incentives from the pirates would be a much bigger hit and win – but a simple solution of sparking dialogue amongst affected parties and promoting voluntary cooperation, such as that just done in the UK, can only be a good thing.

[1] A 2013 report by the Motion Picture Association concluded that 74% of consumers cited using a search engine to navigate them to a site with infringing content the first time they visited that site, while another report by the Recording Industry Association of America showed that approximately 94% of users do not go beyond the first page of results.

Mike Weatherley is currently the Vice Chairman of the Motion Picture Licensing Company, a worldwide leader in motion picture copyright compliance supporting legal access to movies and television programs across five continents and more than 30 countries. He previously served as the Member of Parliament for Hove in East Sussex.