[Guest post] Could your beliefs about copyright be protected under the Equality Act?

Also Kats believe in and wish for many things …

The Equality Act does not define religion or belief, with the explanatory note making clear belief has a broad definition, and one consistent with the rights guaranteed under Article 9 of the European Convention on Human Rights. While earlier employment law protection for belief was limited to those philosophical beliefs which were similar to religious beliefs, the similarity requirement was removed from the legislation in 2007. This has led to interesting case law with employment tribunals in recent years accepting a variety of philosophical beliefs as being protected under the Equality Act, including beliefs opposing fox hunting, in the ‘higher purpose’ of public service broadcasting, that big banks are a cancer on society and that the dead can be contacted through mediums or psychics (a belief that blog readers will recall was accepted as true in argument in the copyright context in the 1927 case of Cummins v Bond).

In Grainger v Nicholson, Justice Burton set out criteria to identify philosophical beliefs falling with the scope of section 10(2) of the Equality Act 2010:

1. The belief must be genuinely held;
2. It must be a belief and not … an opinion or viewpoint based on the present state of information available;
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour;
4. It must attain a certain level of cogency, seriousness, cohesion and importance; and
5. It must be worthy of respect in a democratic society…

These criteria developed by Justice Burton have been adopted by the Equality and Human Rights Commission in their Equality Act 2010 Code of Practice, and have been applied in subsequent Employment Tribunal decisions.

The dispute between Ms Gray and Mulberry focused on the question of whether a belief about copyright could be protected under the Equality Act. Given the dispute’s employment law context, it received limited attention from IP academics (with some exception). Despite the Court of Appeal ultimately rejecting the claimant’s appeal on other grounds, as discussed below the decision leaves open the possibility that a belief about copyright could be protected in some circumstances.

Ms Gray was a writer and filmmaker, who had studied aspects of intellectual property law through a master’s degree in film. In 2015 she commenced work at Mulberry as a Market Support Assistant. In her role she had access to some Mulberry designs before their launch, and consequently the company required her to sign confidentiality and copyright agreements which required the assignment of copyright in any works or designs made arising from her employment and which related to Mulberry’s business. Ms Gray refused to sign, citing concern that the agreement might interfere with her own creative practice as a writer and filmmaker. Following a period of unsuccessful negotiations with the company, she was dismissed for her refusal to sign the agreement. Ms Gray then commenced proceedings for unfair dismissal in the Employment Tribunal, claiming direct and indirect discrimination on the grounds of belief.

The Tribunal and Employment Appeal Tribunal both accepted that Ms Gray held a belief in “the statutory human or moral right to own the copyright and moral rights of her own creative works and output, except when that creative work or output is produced on behalf of an employer”, but that the belief did not reach a sufficient level of cogency or cohesion as required under the fourth Grainger criterion to be protected. In assessing cogency and cohesion the Employment Appeal Tribunal focused on identifying a manifestation of Ms Gray’s belief, being the refusal to sign the copyright agreement, and her failure to articulate or express that her refusal was motivated by a philosophical belief related to copyright.

In contrast, the Court of Appeal did not endorse the earlier Employment Appeal Tribunal’s focus on manifestation, nor did they reach a finding on whether Ms Gray’s beliefs were protected philosophical belief within the terms of s 10 of the Equality Act. Instead, they concluded that there was no causal link between her belief and her refusal to sign the copyright agreement with Mulberry, which they characterised as a debate or dispute about the wording or interpretation of an agreement. Her claim therefore failed on the basis that her disagreement about the wording of the agreement could not be a protected philosophical belief.

The Court of Appeal decision leaves open the question of whether in other circumstances a belief about copyright might be protected under the Equality Act. In order to be protected such a belief would need to meet the criteria elaborated in Grainger, with issues of cogency and cohesion and the distinction between a belief and an opinion being the most likely obstacles to protection.

… especially a nice dinner

To be protected a belief must relate to matters which a more than merely trivial, possess an adequate degree of seriousness and it must be a belief on a fundamental problem (R (Williamson) v Secretary of State for Education, paragraph 23), although the belief does not need to govern the entirety of a person’s life (Grainger v Nicholson, paragraph 27).

In the initial Employment Tribunal decision in Gray, the Tribunal did not accept that Ms Gray’s belief was sufficiently cogent and cohesive to qualify for protection as it did not form any sort of philosophical touchstone in her life. The Tribunal did however suggest that someone who had given “up her time and resources to lobby and campaign for a heightened awareness of copyright theft and an increase to the legal protection against it” would hold a belief at the higher end of the spectrum of cogency and seriousness and that that person’s belief may qualify for protection under the Act. The Tribunal mused that the Head of Legal Services for Mulberry may have held a belief on copyright which was sufficiently cogent and cohesive to be protected.

It is clear from other decided cases that belief in single issue could qualify for protection where that belief affects an important aspect of a person’s life. Many readers of this blog will work in legal roles centred on copyright protection, have studied intellectual property law in post-graduate programmes or research and teach copyright in academic roles. Such blog readers may therefore have a reasonable chance of establishing that their views on copyright meet the fourth Grainger criterion.

One of the most difficult issues in determining whether a view on copyright is protected under the Equality Act is whether it meets the second Grainger criterion, in that it is a belief and not an opinion or viewpoint based on the present state of information available. In Gray it was accepted by the Tribunal that the claimant held a belief about copyright, rather than an unprotected opinion or viewpoint. While protected beliefs can be based on science, the discussion in Grainger is clear that to be protected under the Equality Act the claimant must have a philosophical viewpoint which they actually believe.

There has been limited authority on whether an academic position on an issue constitutes a belief or is an unprotected opinion or viewpoint. In the Werner Tribunal decision a Banking Professor’s belief that “big banks are a cancer on society” was accepted as a protected belief, as it was more than opinion, even though it was based in part “on an assessment of data”.

Many lawyers and academics working in intellectual property law may consider that their views on copyright are rational and based on evidence such as legal analysis, economic insights or political philosophy on the rationales for the protection of intangible property, rather than mere belief. Indeed, for academics studying intellectual property, there may be an obligation within the concept of academic freedom to base their research “on an honest search for knowledge with due respect for evidence [and] impartial reasoning”, rather than adopting a belief closed off to contrary evidence.

On the other hand, in a provocative 2015 article, US Professor Mark Lemley argued that the evidence seeking to justify the existence and scope of intellectual property rights was “decidedly ambiguous”, and drew attention to a trend of academics “on both sides of the IP debates” staking out positions that do not depend on evidence to justify the IP system. Lemley described “this retreat from evidence” as “faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief. The adherents of this new religion believe in IP”. There might therefore continue to be strong arguments that the position on copyright of readers of this blog could constitute a belief, particularly if it is accepted that the evidence supporting the contours of copyright law is ambiguous. Reading Lemely’s argument alongside the second Grainger criterion even suggests that less rigorous, “faith-based” scholarship on copyright is more likely to be protected under the Equality Act than more rigorous work.

Given recent trends in employment law jurisprudence, it would be entirely possible that an IP aficionado’s position on copyright may constitute a protected belief under the Equality Act. While it may be rare that an IP practitioner or academic would suffer direct or indirect discrimination for holding such a belief in copyright, a status as a protected belief may still hold some significance. For example, IP academics might hold a belief in the right to own the copyright and moral rights of their own creative works and output, which may conflict with their University’s position on the ownership of lecture recordings. If copyright beliefs are protected under the Equality Act, then Universities may be subject to the public sector equality duty and be required to take those protected beliefs into account in the design of their organisational lecture recording policies.

Section 10(2) of the Equality Act is clear that it protects both belief and a lack of belief. Those whose beliefs include an objection to copyright or a belief that it currently provides too much protection to copyright owners may also be protected. Such a belief may be a secular philosophical belief, or aligned with the beliefs of the Swedish Missionary Church of Kopimism (discussed on the IPKat here), whose beliefs are that all knowledge should be shared and that laws restricting copying should be abolished.