Copyright

Updates

The United States-Mexico-Canada trade agreement (USMCA), replacing the NAFTA, is expected to be signed by the end of November 2019. The agreement provides robust intermediary liability protections to websites and online platforms. The article 19.17.2 of the agreement reflects the American Communication Decency Act at a large extent, providing that ‘no Party shall adopt or maintain measures that threat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information’. This provision, depending on how it will be integrated into Canadian law by the parliament, can impact the Canadian system of intermediary liabilities. Contrary to the US, Canadian law holds websites liable for third-party content, if they know that the content is illegal. The Supreme Court of Canada ruled that Internet service providers (ISPs) can become liable when they do not take action once given notice of an infringement, in two landmark cases, SOCAN v. Canadian Association of Internet Providers and Crookes v. Newton.

The EU has been working on a new copyright directive for the last few years. The proposals for article 13 were criticised by experts for potentially forcing platform intermediaries to implement content matching technology based on a database of copyrighted works to monitor users’ content. Members of the European Parliament, after extensive public pressure, re-debated many controversial aspects of the article. However, a recent Council of Europe (CoE) document revealed that the proposal does not explicit if the existing liability protection is valid under article 13, and that there are no clear exceptions for intermediaries that make an effort to prevent copyright infringements, but inadvertently admit copyrighted content on their platforms.

During the regular yearly review of exemptions to Section 1201 of the DMCA that allow circumvention of digital rights management (DRM) and similar measures, the copyright office included new exemptions that are considered “fair use”. The new exemptions are related to the possibility of users circumventing DRM to repair their own video games. The second exception is related to circumventing DMR to preserve abandoned video games. This will practically mean that a museum can break DMR in order to enable playing of old video games. The exemption is not applicable to games connected to online video game servers.

 

On Content Protection Summit held in Warsaw in organization of Sygnal Association and with support of EUIPO the most important stakeholder in anti-piracy and content protection industry gathered in order to discuss latest trends, best practices and potential solutions for the burning issues in this field. As a result of two days discussions participants drafted and signed “Warsaw declaration” that is emphasizing importance of cooperation in fight against piracy. Also the question of  efficient enforcement was raised, especially in regard of transposition of article 8.3. of Copyright directive which would enable measures such as web-site blocking. This declaration is important step forward in fight against piracy and shows determination of all relevant actors to join their forces in this fight.

 

The European Court of Justice (ECJ) has answered the request for a preliminary ruling of a German court about liability of committing copyright infringement by family members. Copyright infringement committed by downloading copyrighted material without permission was conducted by using Mr Michael Strotze’s Internet network. Strotze argued that he is not liable for such infringement, since there are other family members who had access to the house’s Internet, but did not provide further details. ECJ had to weigh the balance between protection of family and private life vs. protection of interests of copyright holders. The court decided that relevant EU legislation “must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, as interpreted by the relevant national courts, the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member. (para 55)”

 

The Council of Europe (CoE) adopted a new customs action plan 2018-2022 that should help customs authorities combat intellectual property rights (IPR) infringements. This plan should contribute to the better enforcement of IPR, especially in regard of trading with counterfeit goods, as well to strengthen co-operation between relevant authorities. In following period, the CoE should develop a road-map for the implementation of this plan and also to monitor its implementation.

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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