Change is Scary - The EU Commission Sets Out Proposals for New Copyright Changes

Copyright seems to have been immersed in a perpetual sea of change in the last couple of years, especially here in the UK and the EU as a whole. While this change is hugely important, including for the harmonization of aspects in technological change that have profoundly shaped the sphere in which copyright operates. With the EU's recent dive into a new perspective on the Single Digital Market having been published a little over a years ago (more on which here), future, more concrete changes have yet to be released; however, this changed only a few days ago.

As said, the EU Commission just recently published its propositions to modernize copyright in the wake of the Digital Single Market strategy. While the documents themselves are quite extensive, this writer would aim to discuss the proposed changes more in the broader sense, hopefully to encapsulate the main points of the propositions themselves.

Better choice and access to content online and across borders

As outline in the DSM strategy, access to online content within the EU is paramount to the Commission, with intentions to stop geo-blocking and allow for access to domestic content even abroad (i.e. using the BBC iPlayer when on vacation in the EU). This was expanded on in the proposition as an introduction of "...a legal mechanism for broadcasters to obtain more easily the authorisations they need from right holders to transmit programmes online in other EU Member States". Clearly this seems to envision a cross-EU licencing scheme, or the broadening of existing licences to cover more than their origin country. Initially, as outlined in the proposal, this would be done through a dialogue with the audiovisual industry on licencing issues; however, this writer would not see it as an impossibility that this would be legislated on somehow in the future if progress is not made as desired.

This is expanded on in the Commission's communication, which sets out measures to be taken in relation to access to online content, copyright exceptions and a more efficient enforcement regime.

Improving copyright rules on research, education and inclusion of disable people

Change is scary, so lets manage it!

There are also desires to improve the rules surrounding research, education and inclusion of disable people, particularly broadening access to protected materials for these types of uses. The proposal would include "...a new exception to allow educational establishments to use materials to illustrate teaching through digital tools and in online courses across borders", with additional provisions dealing with cultural heritage institutions (and their preservation of that heritage, as well as access to the content for citizens). While research and access to cultural heritage are very important, the EU sets out the desire to implement the Marrakesh Treaty, which aims to "...facilitate access to published works for persons who are blind, have other visual impairments or are otherwise print disabled", as well as adding measures that will allow for the full participation of disabled individuals in society by providing access to materials (or ways to convert such materials, presumably) that are protected by copyright.

Some of the proposed provisions include an exception for the use of works and other subject-matter in digital and cross-border teaching activities and the copying of cultural heritage materials without infringing copyright. Especially considering the former, the activities must be legitimate, and will undoubtedly be prescribed to certain situations and contexts, much like existing exceptions for research.

A fairer and sustainable marketplace for creators and press

Lastly, the Commission's proposed Directive on Copyright in the Single Market aims to (including the above) "...reinforce the position of right holders to negotiate and be remunerated for the online exploitation of their content on video-sharing platforms such as YouTube". The Directive would impose an obligation on the service providers to have an automatic system that tags and/or removes illegal content, much like YouTube's Content ID system already does (irrespective of its controversial nature). One can imagine this will be a treacherous and unpredictable imposition on service providers, and would remain to be seen how it is genuinely implemented, and whether the providers would face sanctions for lax or non-existent enforcement.

The EU Commission's proposals are quite interesting, and pose, at least in theory, a possible modernization of copyright in the Digital Single Market. As an individual with an international background, I welcome more access to content when abroad, and the expansion of teaching opportunities and the preservation of cultural heritage. What will be interesting are the measures deployed against large service providers, whose users might upload large or small quantities of illegal content on their systems. The provisions, however, in this regard seem to be aimed at cooperation and coexistence, but can pose a problem if presented as one-sided affairs for rights-holders.

Source: IPKat

Locked Out - Providers of WiFi Access Not Liable for Copyright Infringement, Says CJEU

As wireless internet connections have become near ubiquitous in our daily lives amongst the cafés, libraries or businesses we visit, so has our appreciation for the facility, especially when traveling when a weary traveler might not have a connection on their smartphone. But underneath these open networks lurks the danger, and question, of possible abuse, and thus liability for those who operate the networks. This matter has been litigated in the European courts for some time now, and after an Advocate General's opinion early this year (discussed more here), many IP specialists have been waiting for the decision in McFadden; something the CJEU finally handed down late last week.

The case of Tobias Mc Fadden v Sony Music Entertainment Germany GmbH dealt with the provision of an unprotected wireless network connection by Mr Mc Fadden at his business selling and leasing lighting and sound systems, which aimed to bring in business and interest for his endeavor.  In late 2010 a song was shared in his network by a third-party (the rights to which Sony Music owned), and Sony subsequently sent Mr Mc Fadden a notice to this effect. Mr Mc Fadden then took the matter to court, seeking a negative declaration of infringement, to which Sony counterclaimed infringement. The matter ultimately ended up in the CJEU, who sought to take on the matter of liability of infringement for the provider of an unprotected wireless network.

The referring court asked eight questions of the CJEU, who took each question in turn to answer the matter.

The first question dealt with whether the provision of an open WiFi connection could fall under Article 12(1) of the E-Commerce Directive, i.e. whether the service would be classed as an 'information society service'. The Court quickly saw that, even in the light of a lack of remuneration (as required by EU legislation in this instance), the service would be classed as an 'information society service' under the Directive if "...the activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider". The provision of the service is clearly therefore equated to one producing a monetary gain, even if not charged for on the outset, possibly therefore being afforded safe harbor protection as a 'mere conduit'.

The CJEU then moved onto questions two and three, which they summarized together as asking whether Article 12(1) of the Directive only requires the provision of the aforementioned service so as to be included, or if further conditions have to be met for it to be deemed as have been provided under the Article. This would include a contractual relationship and the advertisement of the provider's services. The Court concluded that, for the service to have been provided under the provision, the access must not "...go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, there being no further conditions to be satisfied". This follows recital 43 to the tee, and clearly the mere passive provision of such a service would be deemed to have been 'provided' by virtue of doing only that.

Password required? Not interested!

The Court then answered the remaining questions in a non-sequential fashion, tackling question six first. This asks whether Article 12(1) should be interpreted as including a further condition set out in Article 14(1)(b) (on the removal of infringing content upon notification thereof). The CJEU saw that, as the Articles dealt with very different services (communication services v hosting), the condition does not apply to the provision of more transient services, but to ones that remain more permanent in the provided services (meaning, content hosted on a website stays on said website till removed, unlike in mere transient communication using a wireless connection).

This was followed by questions seven and eight, which the CJEU clumped together, summarizing them as asking whether Article 12(1) includes any further provisions in addition to the one within the Article, which are not expressly mentioned. The Court quickly dismissed this assertion, as further conditions would clearly impede the balance sought by the legislature in the introduction of the provision.

The Court then moved onto question four, which, in essence, asked whether a person (or entity) harmed through the infringement of a right could seek injunctive relief and/or possible costs for the harm caused using the above service to do so. If read in seclusion, the Article does preclude a person harmed from seeking such remedies; however, it does not expressly prevent them from doing so using national authorities to prevent the infringement from continuing. This would seem correct, as Article 12(3) expressly does not preclude national authorities from requiring such actions and/or allowing for the retrieval of costs.

Finally, questions five, nine and ten remained, which asked effectively whether the granting of an injunction such as the above is allowed (and complied with by the provider), when the provider is required to secure their connection through either a password or by monitoring the connection used. The Court emphasized the need to strike a balance between the rights afforded by the Directive and the Enforcement Directive 2004/48, especially when multiple rights are engaged in such an issue (as is the case here). The Court considered the different ways in which IP rights could be protected, and decided that "...a measure intended to secure an internet connection by means of a password must be considered to be necessary in order to ensure the effective protection of the fundamental right to protection of intellectual property". This measure would, according to the Court, protect both rights in intellectual property, as well as the freedom to conduct business through the supply on a wireless connection and the right to information in using the above. One has to, though, provide their details in order to be able to use the connection and therefore be identified if needed.

The CJEU's decision sets out a practical approach to protecting both interests, while not overly restricting the provision of wireless connections. The striking of this balance was key, and the CJEU seem to have settled on the right answer. The measures required are by no means excessive, and afford the provider plenty of protection in the event of the connection's abuse.

Link Away - CJEU Decides Hyperlinking to Images is Not Communication to the Public

After the Advocate General's opinion on the GS Media (discussed here) case some 5 months ago, many people in the IP sphere have awaited the ultimate decision of the CJEU with baited breath. While the Advocate General's opinion reflected a pragmatic, very liberal interpretation of the legislation, some seemed skeptical on whether the CJEU would follow his thoughts. After, what felt like a small eternity to this writer, the CJEU has released its judgment on the case yesterday.

The case of GS Media BV v Sanoma Media Netherlands BV dealt with pictures of Britt Dekker (a famous Dutch TV personality), commissioned by Sanoma Media for publication in Playboy magazine. Prior to their publication, the images were somehow acquired and posted by a user on the file-sharing service Filefactory; a link to which was subsequently sent to the website GeenStijl, which is operated by GS Media. GeenStijl shared a part of one of the images of their website, with an additional hyperlink to Filefactory where users could download the images onto their computers. Although vehemently demanded by Sanoma Media, GS Media refused to remove the link from the website, although the content itself was removed from Filefactory. Sanoma Media then took GS Media to court for copyright infringement, which ultimately ended in the CJEU.

The Court had to determine "...whether, and in what possible circumstances, the fact of posting, on a website, a hyperlink to protected works, freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29".

The context is important here too, as the images in question had not been published prior to their leaking to the website and then to GS Media, and their hyperlink makes the finding of the files a lot easier and they had, or ought to have had, the knowledge that the works' publication on that particular website was not authorized.

Following the judgment in Svensson (discussed more here), the concept of a 'communication to the public' under the Directive consists of two criteria, specifically  an 'act of communication' that was communicated to a 'public'. While the Court followed its earlier decisions on the nuances of what amounts to a communication to the public, the meat of the matter lie in the application of this in the current scenario.

As was decided in Svensson, posting hyperlinks on a website to works freely available on another website does not constitute a ‘communication to the public’ (followed in the BestWater case). The Court did distinguish that, in both of the aforementioned cases, the content linked to was authorized by the copyright holder, i.e. the content was legally on the website that the hyperlink lead to (meaning there was no new public for the content) As further clarified by the Court: "...as soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public". This clearly distinguishes this case from both Svensson and BestWater, as the content was not authorized and therefore, arguably, the communication happened to a 'new public'.

The Court refused to infer the above, and stated that, to protect the freedom of expression and the Internet as we know it, one cannot simply categorize all linking to unauthorized content as a communication to the public. They further saw that, in assessing whether a communication to the public in such a scenario, one has to consider "...when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder". What remains interesting is the potential liability of an unknowing sharer, who still makes a profit by doing so. Ultimately, this seems to just raise the bar for negligence (or a willful blind eye), but is a curious consideration made by the Court.

Hyperlink profiteers enjoying their unlawful gains for one last time

The judgment did not, however, give everyone a free pass: "In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1)". This makes sense, and would offer a safe harbor for those who were notified of any infringing content, especially if it had been placed there without the express authorization of the rightsholding party. The Court also put the onus on checking the content on those who gained a profit from sharing hyperlinks to other websites: "...it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1)". Knowledge, or presumed knowledge, is key here, and clearly the Court wants to curtail profiteers who would use this 'loophole' for their own benefit by sharing links to infringing, unauthorized content.

The Court then finally summarized their findings to the questions posed: "...the answer to the questions raised is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed".

The decision is a very interesting one, and this writer had been waiting for it for some time. What seems surprising is the emphasis of financial gain, but it makes sense, as often those who do not pursue pure monetary gains will be more honestly ignorant to the content  they have shared than those who aim to profit from it (often knowing full well what they are sharing, as it is the source of their users).