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Monday, 24 March 2014

IFPI stresses importance of website blocking while waiting for CJEU Telekabel decision this week

Last week the International Federation of Phonographic Industry (IFPI) released its annual Digital Music Report, ie "[a] comprehensive overview of developments in digital music, detailing how record companies have transformed their business models for the digital age, record company case studies, a showcase of selected global markets and an outline of the industry's efforts to improve the environment in which record companies operate." [see Ben's 1709 Blog post here]

This annual study is always very informative and useful to understand the state of the art in music industry, and also its position in relation to the direction that global copyright policies should embrace. 

To this end, it may be sufficient to look at the Introduction to the Report by legendary Opera singer and IFPI chairman Placido Domingo, which has only one statement highlighted (in pink): "Copyright provides the basis of the modern digital music marketplace.” 
While Priscilla is the ultimate
Harry Styles fan ...

So is it all about copyright and One Direction [Midnight Memories was the best-selling album of 2013], Eminem, Justin Timberlake and Bruno Mars [speaking of Bruno: are there just a few photos of him available or are his publicists just too fond of this to choose a different one?]

It would seem so - especially as regards copyright -, given that "Digital piracy is the biggest single threat to the development of the licensed music sector and to investment in artists." 

To tackle online infringement, music industry is responding with a multi-pronged approach, that includes consumer education, working with law enforcement agencies, litigation against unlicensed services, and "engaging with policy makers and legislators worldwide to create an environment in which the music sector can grow."

According to IFPI, all parties in the digital economy have a responsibility to support legitimate digital commerce and help tackle online infringements. In all this, "courts around the world are finding that the law also requires greater cooperation from online intermediaries." 

... Frank is the ultimate
IFPI Digital Music Report fan
What does IFPI have in mind here? Many things, but mainly website blocking orders, not only by courts but also administrative authorities. 

As to the latter, IFPI cites the case of Italy, where AGCOM (the Italian Communication Auhority) will be able to authorise [this is the first time for an EU Member State] website blocking starting on 31 March 2014, that is the date when the Online Copyright Enforcement Regulation [here] enters into force.

According to IFPI, there has been some "misrepresentation by some anti-copyright campaigners", but "courts have consistently found that blocking of sites providing illegal content achieves an appropriate balance of fundamental rights [see what Arnold J recently said here]. In November 2013, the Advocate General at the Court of Justice of the European Union said that website blocking is available under EU law."

Of course, the case the Report is referring to is Case C-314/12 Telekabel and the Opinion [shame it is not yet available in English after just ... 4 months] is that of Advocate General (AG) Cruz Villalon on 26 November 2013 [here]

This Kat has learned that the Court of Justice of the European Union (CJEU) will deliver its judgment in Telekabel on Thursday, so it is still not so clear what the CJEU thinks of blocking orders - notably under what conditions they are compatible with EU law -, given that the CJEU did not provide much enlightenment in in its earlier (twin) decisions in Cases C-70/10 Scarlet and C-360/10 Netlog.

In addition, not only are opinions of Advocates General non-binding on the Court, but AG Cruz Villalon held that, whilst it is possible for a court to order an ISP to block access by its customers to a website which infringes copyright, any injunction must refer to specific blocking measures, and achieve an appropriate balance between the opposing interests which are protected by fundamental rights

The need to strike a proper balance between different interest has also been referred to by the Commission in its Public Consultation [which closed on 5 March last] on the Review of EU Copyright Rules [here].

What will the CJEU
say on Thursday?

Tackling online infringements is certainly a priority for an industry like music, whose revenues from online channels have become extremely consistent and continued to grow significantly over the past year or so [the Report says that subscription services' revenues were up 51% in 2013, helping global digital revenues grow by 4.3%]. However, we may have to wait at least until Thursday to have a clearer idea of under what conditions current EU law framework allows website blocking. 

Then of course there will be round #2, ie discussion as to whether and how the InfoSoc and Enforcement Directives should be reformed. Merpel suspects that when that time comes, even Bruno Mars's publicists might have started using photos of him that we have not yet seen. 

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