Copyright

Updates

In 2010, the well-known copyright infringement case against the founders of the Pirate Bay in Sweden, resulted in prison sentences for the defendants. However, case about the domain names 'piratebay.se' and 'thepiratebay.se' that were used for copyrright infigement continued. In 2013, action was taken against one of the founders of the Pirate Bay (registered holder of the Pirate Bay domain names) and the Internet Foundation in Sweden (IIS), responsible for the top-level domain ‘.se’. The Stockholm District Court and the Svea Court of Appeal found that the founder was guilty of copyright infringement and that the domain name could be forfeited to the state under the Copyright Act's rules on forfeiture. However, the Svea Court of Appeal found  that the IIS do not have the power to de-register the domain name, as it did not belong to them. The founder appealed the case on the grounds that forfeiting rules apply to property, and domain names are not property. The Supreme court referred to the European Council Framework Decision 2005/212/JHA which notes that property ‘includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title to or interest in such property’ and instrumentalities ‘means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences’, which means that domain names are property for the purposes of forfeiture.

The European Commission has recommended a set of operational measures for states and the Internet industry in an effort to improve their response to illegal online content, including ‘terrorist content, incitement to hatred and violence, child sexual abuse material, counterfeit products and copyright infringement.’ According EU’s Vice-President for the Digital Single Market, Andrus Ansip, illegal content represents ‘a serious threat to our citizens’ security, safety and fundamental rights’. One of the recommendations in the context of terrorist content is the ‘one-hour rule’: harmful terrorist content needs to be removed within one hour after it has been flagged. After monitoring the response to the recommendation, the Commission will determine whether additional steps, such as legislation, are necessary. The Internet industry has expressed discontent for not having been consulted first, and argued that the one-hour rule might not be workable. According to European Digital Rights, the recommendation risks ‘putting ‘Internet giants in charge of censoring Europe’.

A federal court in New York has ruled that embedding a tweet on a web page could count as copyright infringement. The case appeared as Justin Goldman took a photo of American Football player Tom Brady and shared it on Snapchat. The photo was then tweeted by someone else, and this Tweet was subsequently embedded in articles of online publications, such as Breitbard, Time, and Yahoo. Goldman brought the case to court, claiming that the online publications infringed his copyright. The ruling breaks with U.S. legal tradition, as 'courts have long held that copyright liability rests with the entity that hosts the infringing content - not someone who simply links to it'. Critics fear that the ruling would set a dangerous precedent, as those who publish links to content are usually unaware of whether this content infringes copyright. If the court ruling is generalised, they fear that it would inhibit Internet users' freedom to 'share and link to new information as they see fit, without fear of retribution'. 

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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

Actors

(WIPO)

WIPO has developed, together with the

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WIPO has developed, together with the Internet Corporation for Assigned Names and Numbers, the Uniform Domain Name Dispute Resolution Policy (UDRP). Under this policy, WIPO’s Arbitration and Mediation Centre provides dispute resolution services for second level domain name registrations under generic top-level domains (gTLDs). The Centre also administers disputes under a specific policies adopted by some gTLD registries (e.g. .aero, .asia, .travel). In addition, the Centre offers domain name dispute resolution services for over 70 country code top-level domains (ccTLDs). WIPO has developed a ccTLD Program, with the aim to provide advice to many ccTLD registries on the establishment of dispute resolution procedures.

(UNESCO)

UNESCO sees online learning as a cornerstone for building inclusive knowledge societies.

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UNESCO sees online learning as a cornerstone for building inclusive knowledge societies. This ties with its mandate to promote the free exchange of ideas and knowledge, as demonstrated by their key role in the World Summit of Information Society. In June 2016 UNESCO launched a guide for policy-makers in developing countries on Massive Open Online Courses (MOOCs). Co-published by the Commonwealth of Learning (COL), the guide also looks at the role of online learning and MOOCS in the Education 2030 Agenda and the achieving of Sustainable Development Goal 4.

(CC)

Creative Commons works on enabling the sharing and reuse of creativity and knowledge through the provision of

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Creative Commons works on enabling the sharing and reuse of creativity and knowledge through the provision of free legal tools. Although Creative Commons is best known for its licenses, it also offers other legal and technical tools that can facilitate the sharing and discovery of creative works, such as CC0. At the policy level, CC advocates in national and international fora for positive legal and regulatory changes in education, science, and culture, via its Open Policy Network (OPN).

(EFF)

As a civil society organisation working on promoting the protection of human rights in the digital space, the

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As a civil society organisation working on promoting the protection of human rights in the digital space, the EFF has been advocating for the net neutrality principle through multiple activities. In the USA, for example, the EFF has been involved in several activities aimed at defending net neutrality and the regulation adopted by the Federal Communications Commission in 2015. In the EU, the organisation supported the savetheInternet.eu campaign, which advocated for strong net neutrality rules to be adopted by European regulators. In 2014, the EFF launched, together with other organisations for multiple countries around the world, a global coalition for net neutrality.

(Article 19)

Article 19 monitor the development of intellectual property rights and their effect on freedom of expression.

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Article 19 monitor the development of intellectual property rights and their effect on freedom of expression.  APC regularly participates at the UN Human Rights Council, to address the effect of copyright regimes on the protection of fundamental rights, in particular freedom of expression. In 2013, along with other civil society organisations, Article 19 presented ‘The Right to Share: principles on freedom of expression and copyright in the digital age’, a framework for information sharing and to protect freedom of expression.

(EU)

In establishing its digital single market, the EU has progressively developed a dense 

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In establishing its digital single market, the EU has progressively developed a dense copyright legislation corresponding to a set of ten directives, which harmonise essential rights of authors, performers, producers and broadcasters. To ensure EU copyright rules are fit for the digital age, the European Commission has recently presented legislative proposals to modernise the EU legal framework, in order to allow more cross-border access to content online and wider opportunities to use copyrighted materials in education, research and cultural heritage; and have a better functioning copyright marketplace.

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

The EU Copyright Reform’s Proposal – Which Impacts on Users’ Fundamental Rights (2017)

Other resources

The Twitter Rules (2016)

Processes

Session reports

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