From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 18 December 2014

A Kat's 2014 Copyright Awards

It's Katwards day!
With the holidays and end of the year quickly approaching, it seems about time to think of what has been and what will be next in the world of the greatest IP right, ie copyright. 

Like last year, this Kat has decided to review the copyright year, and award a number of [symbolic] prizes to the most relevant developments occurred in 2014. Overall it would seem that in 2014 Europe was the place to be, copyright-wise.

So here we go:

Most important copyright decision

This Kat has little doubt: like it or not, it has been the decision of the Court of Justice of the European Union (CJEU) in Svensson [here and here; the Court confirmed its value as a precedent a couple of months ago in its quick order in BestWater].

It has to be said that this judgment has left many disappointed [starting with the Association Littéraire et Artistique Internationalesee here], also because it has probably raised more issues than those it solved. 

In particular, the 'new public' criterion may not appear that straightforward to both understand and apply. Surely there may be some subjective connotation in determining "the public taken into account by the copyright holders when they authorised the initial communication." The question is: how can those who provide links be sure about the intention of the relevant righholder? 

Although it could not be an exaggeration to suggest that one may surely link but do so at his/her own peril, it is hard to think of a case that had a higher potential to affect our daily activities over the internet than Svensson

In this Kat's opinion, surely PRCA (the case about the lawfulness of internet browsing) did not have the same importance as Svensson, notably because at the time of referring it to the CJEU [here], the UK Supreme Court already appeared (rightly) confident to say that, no, you don't need permission to browse the internet.

Most important piece of legislation

Well, this is kind of difficult category to fill in, since this Kat is under the impression that 2014 has not been really busy for copyright legislators.

To be honest, not much has happened in the US, EU and Australia, where most time has been devoted to policy discussion and consultations [hereherehere and here] instead. 

As regards Europe, next year promises to be more exciting: EU Commissioner for Digital Economy and Society, Günther Oettinger, announced that his first initiative will be new copyright legislation. He also added that such legislation "should only cover what no longer works national level". This Kat found this statement a bit hard to understand. IP is an area where the EU and Member States share competences, so surely any initiative at the EU level must comply with the principles of subsidiarity and proportionality?? Anyhow, let's try not to be too pedantic and wait for new developments which, if this Kat had to guess, will concern issues such as private copying levies and licence segmentation, including geoblocking. 

Overall, it would seem that the most exciting place to be in 2014, copyright legislation-wise, was the UK. This was not just because a number of secondary instruments were adopted following the Enterprise and Regulatory Reform Act 2013eg the orphan works licensing scheme, but especially due to the introduction of new exceptions into the Copyright Designs and Patents Act (CDPA).

If this Kat had to choose a particular exception she would go for one of the completely new ones, notably parody, caricature and pastiche. This is for no particular reason if not that fair dealing with a pre-exisiting work for these reasons should not be considered an infringement in the first place. So this Kat is glad that the UK eventually acknowledged that, too.

Mr Justice Arnold
Copyright person of the year [new category!]

This is a new category aimed at acknowledging the contribution of a particular person to copyright law, policy and debate. After wondering whether Taylor Swift could be the copyright woman of the year due to her anti-Spotify public engagement, this Kat thought that there might be someone else who has contributed more to copyright than her this year. 

This person is The Hon Mr Justice Richard Arnold, and is so for a number of reasons which are not limited to all his Arnoldian IP references to the CJEU.

A couple of days ago this Kat wondered whether 2015 would be the year of blocking injunctions. There is probably no other judge who has looked into this issue as thoroughly and seriously as Arnold J has done. Reading something like the judgment in Cartier [here and here] is an antidote to many shabby policy and lobbying briefs that have been circulated lately [see further below in relation to this]

In addition, Arnold J contributed with some (much needed) rational analysis to the debate surrounding both the need for an overhaul of the CDPA and how a good copyright act should be drafted [so this is not just something that concerns the UK]. He did so in the context of the 2014 Herchel Smith Intellectual Property Lecture [see John's report here]. The editors of the Queen Mary Journal of Intellectual Property have informed this Kat that the text of the lecture will be featured in 2015's Issue 2 of the Journal.

You "purchased" this ebook and
- thank goodnees -
you have found your cat:
can you resell the ebook?
Most important unresolved issue

This probably concerns digital exhaustion: can you resell your ebooks, videogames, iTunes tracks? 

Following the 2012 decision in UsedSoft [see here for a Katpoll], debate has ensued as to whether the conclusions that the CJEU achieved under the Software Directive could be extended to the InfoSoc Directive

A number of contrasting approaches have been adopted at the national levels: on the one hand German courts have held the view that, no, there is no digital exhaustion under the InfoSoc Directive; on the other hand, a Dutch court has found that, yes, there is digital exhaustion under the InfoSoc Directive.

In its leaked draft White Paper [here], the previous EU Commission stated that policy initiatives regarding digital exhaustion are still premature [this somehow echoes the state of the debate in the US]. However, if no hints will be provided at the policy and legislative levels, do not despair! The CJEU decision in Art & Allposters is awaited soon: it will be interesting to see if the Court follows the Opinion of Advocate General Cruz Villalon [here, not yet available in English!], and holds that there can only be analogue exhaustion.

Most important policy issue for 2015

This Kat thinks it is blocking injunctions, for the reasons given here.

If only some copyright commentators
were this cute and polite!
What this Kat liked the least

What this Kat is about to say is sadly not limited to 2014, but nonetheless featured prominently during this year. 

It is the despicable partisanship employed in the arguments advanced by a number of vocal characters in the copyright debate. Really, sometimes you attend events aimed at copyright professionals and you hear arguments presented in such gross bad faith, that you wonder whether these, rather than attempts to react to their counterparts' arguments, are plain attempts to offend human intelligence.

This Kat is not going to name and shame because it would be neither elegant nor Christmas-y. However, she is a bit bored  to keep reading accounts on one side or the other about any new copyright developments being either "a serious threat to human rights and user freedoms" or "something that undermines the vary basics of copyright protection, with the result that creators are now starving in the streets".

To people who care about copyright (in one way or another) these arguments sound fairly shabby. Yet, those who advance them feature prominently in the copyright landscape, if not - and quite incredibly to be honest - in the policy-making arena.

Can some civilisation be brought back into the copyright debate at all?

A different Interview,
still starring James Franco
Most important copyright-protected work

In copyright terms this is probably The Interview, and not just because this Kat has always been a huge fan of James Franco. 

As readers will probably know already, this film is about a fictional plot to kill North Korean supreme leader Kim Jong-un.

Sony cancelled the planned US release on 25 December, following both threats of violence and 9/11-like terrorism by the same hackers who carried out a cyber attach on Sony, and the announcement by the five biggest cinema chains in the US, operating 20,000 screens between them, that they would not show the comedy.

Not only did Sony cancel the New York premiere, but also announced that it has no further release plans for the film (which cost $42m), including video-on-demand.

Yet, Netflix may rescue The Interview from cyber-bulling by purchasing it, as Quartz advocated. Of course the challenge would be for Netflix to see if there is any value left in something that has been disseminated over the internet already.

The reasons why this film is the most important copyright-protected work of 2014 is because it reminds us of the importance of freedom of expression (which in this Kat's opinion is not antithetical at all to copyright protection), but also that exploitation of a work is no longer bound to a unique solution, eg cinema screening, but that new forms, eg internet streaming, are available as well. 

Instead of focusing so much on cinema screening or waiting for a hypothetical Netflix deal, Sony could do better and make the film available online for people to watch in the safety of their homes.

What does this suggest? That online copyright is not just about enforcement but also - and perhaps most importantly in a case like this - being able to develop new business models that could help you exploit differently your own works and react quickly to a dramatic changes of circumstances. Overall it is a new world of possibilities: go and seize them, as beloved Robin Williams (who sadly died this year) suggested in a most moving film.


Anonymous said...

Is the Dead Poet Society clip you linked on Youtube authorised or not?
#ironic #Svensson

Anonymous said...

Another link is unauthorised as framing is prohibited.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':