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.

Monday, 21 December 2015

A Kat's 2015 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 constantly exciting world of copyright.

Like last year and the year before, this Kat has decided to review the copyright year, and award a number of [symbolic] prizes to the most relevant developments occurred in 2015. Once again, it would seem that in 2015 Europe was the place to be copyright-wise, with a couple of notable exceptions.

So here we go:

Most important copyright decision

2015 has been populated by a number of decisions that, while looking focused on very specific aspects of copyright, have been altering its overall shape. 

In the EU content, it is sufficient to think of the decisions of the Court of Justice of the European Union (CJEU) in:
  • Allposters [here and here], seemingly suggesting - in this Kat's opinion - that there is no such thing as a general principle of digital exhaustion under the InfoSoc Directive;
  • Labianca [here and here], suggesting that the right of distribution encompasses even things like mere advertisement for sale of copyright works; and 
  • Reprobel [here], a decision likely to have a significant impact on national private copying levy systems, especially on consideration that fair compensation must be for an actual harm and the beneficiaries can only be those listed among the relevant rightholders in Article 2 of the InfoSoc Directive.  
However, on consideration of its likely policy impact, the decision the wins the prize is that of the 2nd Circuit in the Google Books case [here] in the US, which confirmed the first instance decision of Judge Chin that Google's scanning activities in the context of its Books Project were protected as fair use under §107 of the US Copyright Act.

Would an outcome like that achieved under US fair use be obtainable under the InfoSoc system of exceptions and limitations? That is highly unlikely. 

Should things change in either Europe or the US?

As regards the latter, readers may remember that a few months ago Mr Justice Arnold of the High Court of England and Wales decided a case [here] by considering whether the activities of the defendants could be protected as US fair use. In reviewing this US copyright doctrine, the learned judge also addressed some of the criticisms advanced against fair use, notably its alleged indeterminate and unpredictable character.

Mr Justice Arnold noted how "[o]ver the last decade, however, work by scholars such as Pamela Samuelson, Barton Beebe and Matthew Sag has demonstrated that what at first blush may appear to be an amorphous mass of individual decisions can be analysed and categorised in the same way as other areas of common law (negligence, for example)".

A not too effective block
Most important piece of legislation

Not much has happened in the EU (despite what promises to be an eventful 2016) and US. Things have been instead more lively in Australia, where the Copyright Amendment (Online Infringement) Act 2015 was adopted. 

The new section 115A of the Australian Copyright Act gives the Federal Court of Australia the power to grant an injunction against carriage service providers to disable access to an online location outside Australia that infringes or facilitates an infringement of copyright, and whose primary purpose is to infringe, or to facilitate the infringement of, copyright whether or not in Australia.

Australia has thus followed the steps of a number of EU Member States [see here], where courts are entitled to order internet service providers (ISPs) to block access to certain websites. 

This said, however, diverging approaches have been adopted across Europe and recently a Swedish court has held the view [here] that the law [read: EU law] does not mandate the provision of blocking orders as an available enforcement tool.

While debate around the role of ISPs and enforcement measures is currently being undertaken [here and here] at the EU level and - somehow contrary to the views expressed by some national judges - the EU Commission appears to think [here] that Follow the Money is the way to go for online IP enforcement, the Australian move shows that: (1) the story with availability of blocking injunctions is far from over and (2) EU experience has been informing law reform outside the EU.

You get a prize if you
 know how to pronounce
her name
Copyright person of the year

This Kat confesses that has a particular predilection for judges, in that they are those shaping the core of copyright protection. This year in particular there has been a judge, possibly not really known to the general public, who has been acting as rapporteur in key CJEU cases Allposters and Labianca, for which she drafted very interesting judgments. 

This judge is Küllike Jürimäe, who has been sitting as a CJEU judge since 2013, after being a judge of the General Court for nearly a decade.

So if from a technical standpoint Küllike Jürimäe is the winner, from a policy standpoint
Julia Reda
there is someone else who is likely to be better known to the general public and surely deserves a mention for her constant presence on the copyright scene this year.

This person is MEP Julia Reda, who not only has drafted an interesting Report for the European Parliament, but has been really indefatigable in her commitment to EU copyright reform debate, displaying positive and, in the world of copyright policy, fairly rare qualities in all this, ie pragmatism and flexibility.

Most important unresolved issue

In this Kat's opinion, this is linking to protected content. 

As this blog reported a few days ago, following initiatives in Germany and Spain, it is unclear whether the EU Commission intends to propose the adoption of an EU-wide ancillary right over news content.


Similarly, in the aftermath of the 2014 CJEU decision in Svensson [Katposts here] debate has intensified as to whether and under what conditions linking to protected content may fall within the scope of copyright protection and, as such, possibly amount to an infringement of the right of communication to the public within Article 3(1) of the InfoSoc Directive [for a Kat-table summarising what appears to be the current state of the law, click here]


Currently there are two references for a preliminary ruling pending before the CJEU, seeking clarification on a number of issues, including whether linking to unlawful content (photographic works hosted on a third-party website and content streaming, respectively) is an act that falls within the scope of Article 3(1) of the InfoSoc Directive. 

In this Kat's opinion, the response of the CJEU will be in the affirmative: the case of unlawful content is a scenario in which authorisation to the initial communication was not even provided. As such, the relevant rightholder had no public in mind for the sake of applying para 24 of the Svensson decision.

Linking:
not always so cute
Is it however realistic to think that link-providers would have to make sure every time that they are linking to lawful content? 

If this is where EU copyright is going, then an exception for linking on the model of the one in Article 5(1) of the InfoSoc Directive, ie mandatory for all Member States to adopt, appears to be something to really think about.

Most important policy issue for 2016

Despite the enthusiasm or terror (depending on where you stand) surrounding content portability and geoblocking, linking is something that should be really addressed next year, as in the second half of 2016 the CJEU is likely to release two further judgments [see above] on this very issue.

What this Kat liked the least

Focusing on things that are not really key, as if there were not enough problems already. One example? All the debate surrounding freedom of panorama.

Article 5(3)(h) of the InfoSoc Directive allows Member States to introduce into their own national copyright laws an exception or limitation to copyright exclusive rights to allow "use of works, such as works of architecture or sculpture, made to be located permanently in public places". 

Following the release of the draft Reda Report, some amendments were made (eventually withdrawn) to the effect that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places would have always been subject to prior authorisation from the authors or any proxy acting for them.

Why was the debate around freedom of panorama (or lack thereof) not really central? Because even in those Member States, eg Italy and France, in which such freedom does not exist, paucity of case law may suggest that this is not really an issue about which relevant rightholders are so passionate that they cannot stand the idea of not suing alleged infringers.

However, if nothing else, all this was not the greatest PR for copyright among the general public ...

Most important copyright-protected work

Although this Kat shamefully confesses that she does not have a clue as to who Yoda is, there is little doubt that the excitement surrounding the release of the new Star Wars film, along with the incredibly successful box office data, is symptomatic - first - of the fact that high quality content is what people seek.  

Secondly, the enthusiastic posse of Star Wars fans also shows that entertainment over the years has been shifting from one-shot or finite series to content that can be enjoyed through different media and in different ways (eg at the cinema as well as in a videogame) and for which the end is never really in sight. Just think of the forthcoming Batman v Superman ...

3 comments:

Uncle Wiggily said...


Cara Eleonora:

We all love Europe with its good food, wine, art and architecture.

But Europe is not the only place that matters, especially in copyright law.

And I'm sad to inform you that, in the common law world, nobody takes Svensson and the linking issue very seriously.

Moreover, you have paid scant attention to the USA and Australia. And no attention whatsoever to Canada, where there is reason to believe that you possibly have very devoted fans. However, you have ignored your Canadian devotees this time.

There was a very important decision of the Supreme Court of Canada dealing with technological neutrality and whether Copyright Board tariffs are mandatory. See:

Canadian Broadcasting Corp. v. SODRAC 2003 Inc.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15646/index.do

Sincerely,

The always cosmopolitan,

Uncle Wiggily

Eleonora Rosati said...

Dear Uncle Wiggily,

Many thanks for your gracious comment. Your remarks are duly noted, and I take the chance to wish you lovely Holidays in beautiful Canada.

Uncle Wiggily said...

Cara Eleonora:

I would never admit on this blog to being Canadian or from Canada, since Merpel and many of her colleagues have taken to treating Canada over the years as a copyright colony barely worthy of mention.

But I’m not ashamed to admit that some of my best friends are Canadian. Moreover, since 2002, the Supreme Court of Canada has produced a dozen notable substantive copyright decisions, and other important decisions relating to jurisdiction over copyright related issues. The Court has also released some very important decisions in patent and trade-marks law during this time.

Here is a partial listing:

http://scc-csc.lexum.com/scc-csc/en/d/s/index.do?cont=&ref=&d1=2002-01-01&d2=2015-12-01&p=&su=8

Canada also produced some very well balanced copyright legislation in 2012, the result of which widens even more the lucidity gap between its copyright statute and the UK’s increasingly impenetrable CDPA. Just glancing at it makes me feel nearly catatonic.

Once more, it is necessary to remind you, Merpel, your retired and esteemed Primo Gatto Jeremy, if we can garner his attention, purhaps with a little catnip, and your other feline colleagues that Canada is no longer a British colony. While Canada doesn’t have kangaroos, kiwis, or hedgehogs, it does have plenty of beaver, moose and polar bears – which surely prevail both quantitatively and qualitatively on both the size and cuteness scales.

And notably, Canada has an excellent and productive Supreme Court, the jurisprudence of which you would do well to study – especially as merry England loses touch with its common law connection.

Best wishes from your curmudgeonly cosmopolitan colleague,

Merry Christmas, happy holidays and season's greetings,

Buon Natale, buone vacanze e saluti della stagione,

Uncle Wiggily

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