Copyright

Updates

The Copyright Directive was approved by members of the European Parliament. 348 members voted in favour while 274 voted against it. Members states have 24 months from now to transpose the directive rules into their national legal systems. The content of the Copyright Directive has been subjected to lobbying from businesses, copyright holders and digital rights lawyers. The most controversial article 13 (renamed article 17) have passed almost with the same terms of the last proposed draft. The rule requires from websites new duties to stop users from uploading copyrighted content. Advocates against the Directive say that the new rule can lead to the implementation of filters that will monitor the content before it is uploaded to block any content that breaches copyrighted material. 

UN Special Rapporteur David Kaye stated that the European Union’s Copyright Directive should not impose a liability regime that weakens freedom of expression online. Article 13 of the latest version of the proposal provides that content sharing platforms must license copyright protected material from the rights holders. The service provider will be held liable if it cannot prove that the content was licensed or that it acted quickly to remove infringing material. Kaye considers that article 13 drives online platforms toward monitoring and restriction of user-generated content. He notes that this pressure to pre-filter content is 'neither necessary nor proportionate’ to address copyright violations online.

The European Parliament, the Council of the EU and the Commission announced in a press release that a political agreement was reached on the draft of the Copyright Directive, a result of trilogue being held since September 2018. The EU Parliament and the Council need to approve the agreed compromise into law. According to the European Parliament, no new rights or obligations are being created, and the ordinary user will not be affected. The EU Copyright Directive will regulate the existing rights and obligations of large internet platforms with content creators, making sure that the content creators such as artists and  journalists have a more equal position towards the big internet platforms.

After the meeting of the EU Council and strong disagreement from ambassadors of member states about the text of copyright reform, the final stage in the process is postponed. There were 11  countries against the current proposal. While Germany suggested to exempt the application of article 13 to medium-size businesses with turnovers above €20 million, France strongly opposed this proposal. Many discussions were around article 11 and how to apply it. Finally, the spokesperson of Romania said that the council needs more time to decide on the copyright reform proposal.

Singapore Ministry of Law has decided to change copyright law in order to boost the creative industry. Proposed changes will strengthen creators’ right to attribution to their work, even if the work is not in their ownership anymore. Moreover, the changes proposed are to include a default ownership of commissioned works. Also enforcement is more strict to prevent illegal streaming. Various criminal and civil sanctions can be imposed to anyone who enable copyright violations. Finally, there are wider exceptions for education, analysis, and data mining.  

Amidst discussions related to the EU copyright reform, a group of 95 screenwriters and directors formed a lobby group. The group advocates for proportional remuneration in article 14. They addressed their proposals in a letter stating that audiovisual authors should be able to live off their work. The group thinks that article 14 needs further specification in order to provide real fair and proportionate remuneration. They ask for explicit reference to ‘proportionate remuneration’ in article 14, explicit references to the different collection mechanisms in member states, and lump sum payments to become exceptions.

Knowledge and ideas are key resources in the global economy. The protection of knowledge and ideas, through Intellectual Property Rights (IPR), has become one of the predominant issues in the Internet governance debate. Internet-related IPR include copyright and trademarks. Copyright protects the expression of an idea when it is materialised in various forms, such as a book, CD, or computer file. The idea itself is not protected by copyright. In practice, it is sometimes difficult to make a clear distinction between the idea and its expression.

 

The copyright regime has closely followed the technological evolution. Every new invention, such as the printing press, radio, television, and the VCR, has affected both the form and the application of copyright rules. The Internet is no exception. The traditional concept of copyright has been challenged in numerous ways, from those as simple as ‘cutting and pasting’ texts from the Web to more complex activities, such as the massive distribution of music and video materials via the Internet.

The Internet also empowers copyright holders, by providing them with more powerful technical tools for protecting and monitoring the use of copyrighted material. These developments endanger the delicate balance between authors’ rights and the public’s interest, which is the very basis of the copyright law.

 

The issues

Amend existing or develop new copyright mechanisms?

How should copyright mechanisms be adjusted to reflect the profound changes effected by ICT and Internet developments? One answer suggested by the US government’s White Paper on Intellectual Property and the National Information Infrastructure is that only minor changes are needed in existing regulation, mainly through ‘dematerialising’ the copyright concepts of ‘fixation’, ‘distribution’, ‘transmission’, and ‘publication’. This approach was followed in the main international copyright treaties, including the Trade-Related aspects of Intellectual Property Rights (TRIPS) convention and the WIPO Copyright Treaty.

However, the opposite view argues that changes in the legal system must be profound, since copyright in the digital era no longer refers to the ‘right to prevent copying’ but also to the ‘right to prevent access’. Ultimately, with ever greater technical possibilities of restricting access to digital materials, one can question whether copyright protection is necessary at all. It remains to be seen how the public interest, the second part of the copyright equation, will be protected.

 

Protection of the public interest – the ‘fair use’ of copyright materials

Copyright was initially designed to encourage creativity and invention. This is why it combined two elements: the protection of authors’ rights and the protection of the public interest. The main challenge was to stipulate how the public can access copyrighted materials in order to enhance creativity, knowledge, and global well-being. Operationally speaking, the protection of the public interest is ensured through the concept of the ‘fair use’ of protected materials.

 

Copyright and development

Any restriction of fair use could weaken the position of developing countries. The Internet provides researchers, students, and others from developing countries with a powerful tool for participating in global academic and scientific exchanges. A restrictive copyright regime could have a negative impact on capacity building in developing countries. Another aspect is the increasing digitisation of cultural and artistic crafts from developing countries. Paradoxically, developing countries may end up having to pay for their cultural and artistic heritage when it is digitised, repackaged, and owned by foreign entertainment and media companies.

Events

Instruments

Conventions

Link to: Convention on Cybercrime (Budapest Convention) | Article 10 – Offences related to infringements of copyright and related rights (2001)

Judgements

Resolutions & Declarations

Standards

Other Instruments

Resources

Publications

Internet Governance Acronym Glossary (2015)
An Introduction to Internet Governance (2014)

Papers

Personal Data Storage in Russia (2015)
Comparative Analysis on National Approaches to the Liability of Internet Intermediaries for Infringement of Copyright and Related Rights (2014)
Competition in the Software Industry: the Interface between Antitrust and Intellectual Property Law (1999)

Reports

Enabling Growth and Innovation in the Digital Economy (2016)
2016 Special 301 Report (2016)
The Impact of Digital Content: Opportunities and Risks of Creating and Sharing Information Online (2016)
Content Removal Requests Report (2016)

GIP event reports

Your Freedom of Expression vs. Mine? Who Is in Control? (2018)
Copyright Reform in Europe – Expectations and Reality, Benefit or Harm? (2018)
The EU Copyright Reform’s Proposal – Which Impacts on Users’ Fundamental Rights (2017)

Other resources

The Twitter Rules (2016)

Processes

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To keep the Internet engine running, innovation is key, especially when it comes to intellectual property. Unlocking Internet Economy through Copyright Reform (WS 167) addressed the consequences of copyright policies on Internet innovation, with the session organisers arguing that the current Internet innovation system, characterised by ‘multinational corporations, fledging start-ups, telecommunications providers, content creators and consumers [forming] increasingly complex value chains’, often contradicts the copyright regime.

 

 

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