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Copyright

2018

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.

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