Into the tangled web

Pinterest shows why online companies should seek advice in all the jurisdictions in which they operate

Depending on your point of view, a platform that invites users to publicly display “all the beautiful things you find on the web” is either a revolution in image-based social networking or just another naive idea that will be the undoing of the platform once the copyright community discovers it.

Pinterest is such a platform. Created in 2010, it invites users to submit web addresses of images they like, which it then copies and resizes. The resulting images are made publicly available via users’ digital pinboards. ’Pinned’ images are hosted through Pinterest and are of a size and quality that allows them to be visually consumed without leaving the site.

The consensus in the US is that pinning could constitute ’fair use’ and Pinterest will benefit from the ’safe harbour ’provisions of the Digital Millennium Copyright Act, but the internet knows no bounds and the position in the UK is more restrictive, both for users and for Pinterest.

Despite Professor Ian Hargreaves’ recommendations for changes to our copyright law to meet the requirements of the digital economy, there has been a rejection of a US-style fair use exemption. This suggests Britons will have to be unrealistically cautious when using Pinterest, since the size and quality of the images distinguishes them from search engine thumbnails and makes it likely they are a substantial reproduction of the original. Furthermore, image descriptions may contain only 500 characters, meaning there is limited scope to argue that users’ acts are covered by the ’fair dealing’ defences of criticism, review, news reporting, non-commercial research or study. As a result, pinning an image without the copyright owner’s permission is likely to be copyright infringement.

Pinterest itself has only a narrow safe harbour under the Electronic Commerce (EC Directive) Regulations 2002. These require the service in question to normally be provided for remuneration and to have no ’actual knowledge’ of unlawful activity or information. Although Pinterest is a free service, with no advertising, it obtains remuneration by adding affiliate referral codes to links that take visitors to e-commerce sites.

Although this is unlikely to fix Pinterest with ’knowledge’ under the regulations, it may fall foul of the EC directive on which they are based, since it requires hosts to remain ’passive’ to benefit from the safe harbour.

Of course, all this is moot unless a court in the UK can assert jurisdiction over Pinterest, which has no assets here. While much will turn on the facts, litigants will note that our Civil Procedure Rules allow for an English court to assert jurisdiction over such a party if England is the place where the damage from the allegedly tortious act, for example lost licensing revenue caused by infringement, is suffered. Conceivably, this could apply to Pinterest.

Pinterest holds enormous potential for users and for advertisers. The subtle but significant differences ­between IP laws in target markets ­underscore the need for online businesses to obtain specialised, local ­advice. It is hoped that Pinterest will be able to provide a sustainable ­platform that can be enjoyed by the UK’s creative industries.

Edwards Wildman litigation associate Gareth Dickson assisted with this article