Copyright

Updates

The European Parliament approved amendments to the Directive on Copyright in the Digital Single Market 2016/0280(COD), also known as the EU Copyright Directive, which intends to harmonise aspects of the copyright law across the EU. The vote included two controversial points, enshrined in Articles 11 and 13, dubbed the 'link tax' (or ‘snippet tax’) and the 'upload filter' by critics. Article 11 is intended to give publishers and newspapers a way to make money when companies like Google link to their stories. It extends the 2001 Copyright Directive to grant publishers direct copyright over "online use of their press publications by information society service providers". Search engines and online platforms, like Twitter and Facebook, will have to pay a license to link to news publishers when quoting portions of text from these outlets. The bill says that the new rights given to publishers “shall not prevent legitimate private and non-commercial use of press publications by individual users”. However, it does not make clear what counts as ‘portions of the text’ or as a commercial platform which could allegedly encompass blogs, RSS feeds, or a Facebook page operated by an individual who has a considerably large audience for example. Article 13 says that online platforms are liable for content uploaded by users that infringes copyright. It requires that platforms proactively work with rightsholders to stop users uploading copyrighted content. This could potentially mean scanning all data being uploaded to sites like YouTube and Facebook. This measure could affect memes - images or videos that spread 'virally' online, often accompanied by a witty snippet of text - and music remixes shared online. The proposal will now enter negotiations between the Council of the EU, The European Commission and the Parliament. If these three bodies agree, it will be sent to each EU member state for implementation in 2019.

After first instance decision against Cox Communication Inc and second instance decision that brought back case for trail again, Cox and BMG music publisher decided to settle. The case was initiated back in 2015 due to the fact that Cox Communication as IPS was not reacting on repeated copyright infringements by its users and hence it was was found guilty of willful contributory copyright infringement. Even though details of settlement are still confidential BMG declared that it is satisfied with the amount and that it will keep its battle against all other ISPs who support piracy.

After many years of negotiations about The North American Free Trade Agreement (NAFTA) between U.S., Canada and Mexico, U.S. and Mexico announced that they have reached new preliminary trade agreement. On of the most important changes in this agreement are related to IP and better enforcement of IPR, especially in piracy and counterfeiting. Among others parties have agreed to impose criminal measures against camcording in movie theaters, as well as cable and signal piracy. However we still need to wait for final text to see all definite changes.

In a recent case about violation of copyright and terms of use of “Grand Teft Auto V V” the Judge of District court in NY granted an injunction against two software programs that made certain alteration in this game. The software program were designed in order to enable its users to cheat on the game by using unlimited amount of game currency. The judge noted that on this manner users who do not use this program would be in disadvantage, but also there is a public interest in defending company’s investment in creating this video game by granting this injunction.  

Federal Court of Justice of Germany refeed the question for preliminary ruling to ECJ asking for interpretation of Copyright Directive in a case against Land North Rhein-Westphalia secondary school. The case was initiated by author of photography who gave permission for travel agency to publish it on its website. The pupil of the school against which charges are brought, downloaded this photo and included it in its school assignment that was published on the website of school. The author press a charges against school for copyright violation, stating that he did not give permission for publication of this photo on school website. In order to vest decision about this case, the German court asked ECJ the preliminary question: “whether the concept of ‘communication to the public’ covers the posting on a website of a photograph which has been previously published on another website without any restrictions preventing it from being downloaded and with the consent of the copyright holder.”  The ECJ stated that in communication to the public encompass and posting of work that was already available with author permission, if that work is published on another place for which copyright holder did not gave its permission (in this case school website). Moreover, not just that this act is communication to the public within the meaning of the Copyright Directive, but also work was made available to new public - the visitors of school website.  

EURACTIV reports that a Dramatic Parliament vote triggers upheaval of divisive copyright bill as the European Parliament overturned the Legal Affairs Committee's decision last month to approve the copyright bill. Natasha Lomas of TechCrunch said 'Crucially it means MEPs will have the chance to amend the controversial proposals'. The two most controversial articles generating strong debate are Article 11, the so-called 'snipped' provision, which could require companies like Google, Microsoft, and others to pay for use of snippets and links, and Article 13, which would force online platforms to employ filters to prevent the upload of copyrighted materials. 

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

Click on the ( + ) sign to expand each day.

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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