tag:blogger.com,1999:blog-5574479.post5929355197718941331..comments2024-03-29T12:23:31.959+00:00Comments on The IPKat: Filmspeler, the right of communication to the public, and unlawful streams: a landmark decisionVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-5574479.post-67757316680451494082017-04-28T08:30:39.100+01:002017-04-28T08:30:39.100+01:00Dreadful judicial lawmaking: conflating inducing/f...Dreadful judicial lawmaking: conflating inducing/facilitating infringement with infringement itself. Incredible that the CJEU felt itself competent to extend the definition of "communication" to acts in which nothing is communicated, on the basis of the need for a "broad reading". Broad, yes, but not boundless. Let's hope that the CJEU does not act like this in references from the UPC.PHOSITAnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-25207891489080986712017-04-27T18:34:14.158+01:002017-04-27T18:34:14.158+01:00@Anonymous at 16:56: What I meant re the value gap...@Anonymous at 16:56: What I meant re the value gap is that the construction of Article 13 assumes that hosting providers make acts of communication to the public. Before Filmspeler I was unsure whether that would be really the case, but after this ruling the overall architecture of Article 13 appears more plausible (at least from the point of view of Art 3 InfoSoc Directive).Eleonora Rosatihttps://www.blogger.com/profile/05629420303968805446noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-22611149572368855352017-04-27T16:56:28.282+01:002017-04-27T16:56:28.282+01:00I think Pedro is correct.
It seems that the Comm...I think Pedro is correct. <br /><br />It seems that the Commission completely opposed the Court's approach (See the AG's Opinion) and pointed out the harmful consequences of such an approach especially for consumers. The Court tries to safeguard Meltwater and Premier League (Grand Chamber and this is a mere chamber. <br /><br />Due to the absence of secondary liability remedies in the Netherlands, rightholders have had to subvert the process to get this caught under the right.<br /><br />Bad decision -Article 3 case law remains a mess.<br /><br />Not sure what the IPKAT is saying about the value gap as if the EP is clever it will ensure the value gap is kicked out. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-20293780098701238322017-04-27T15:34:29.166+01:002017-04-27T15:34:29.166+01:00@Anonymous Thursday, 27 April 2017 at 14:41:00 BST...@Anonymous Thursday, 27 April 2017 at 14:41:00 BST: <br /><br />In the case pending in Netherlands, one of the parties argued that the streaming of works protected by copyright from an illegal source is not a ‘lawful use’ within the meaning of Article 5 of Directive 2001/29. As a result, questions 3 and 4 of the reference for preliminary ruling (which were found admissible by the CJEU) refer to "reproductions made by END-USERS during the streaming of a copyright-protected works".<br /><br />The answer to these questions was "Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions".<br /><br />Is is true that the CJEU decision refers to the use of multimedia player (although "It is not for the Court (...) to decide issues of fact raised in the main proceedings"). Still, in this point, we are discussing solely the acts of the USER / VIEWER (primary infringement and liabilities), not the ones from the site that hosts the stream, nor the ones from Filmspeler. As a result, I still think that my considerations are pertinent.<br /><br />Finally, I used accessing a streaming via Google as an example. In such circumstances, would there be an infringement by / liability of the USER / VIEWER? If I wanted to extrapolate even more, I could have referred to buying a counterfeit dvd and watching it as there will result in buffer and monitor copies. If I wanted to go even further, I could refer to "a pirated copy of a protected book or views a forgery of a protected painting".<br /><br />The main problem with this decision is its implications in relation to the infringement of the reproduction rights by users / viewers. As mentioned in the post, "Turning to liability for unlawful streaming, just a few weeks ago the Derbyshire Council Trading Standards in the UK submitted that streaming unlicensed content would not give rise to liability. After Filmspeler, this does no longer seem true.".Pedro Malaquiashttps://www.blogger.com/profile/07534086208709473863noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-73886592507053085942017-04-27T14:41:37.028+01:002017-04-27T14:41:37.028+01:00@Pedro: Do you understand what you typed there? I ...@Pedro: Do you understand what you typed there? I have no idea what your discussions about streaming have to do with this case. <br /><br />The issue in this case is that Filmspeler sells a device with (only?) special add-ons installed for the sole purpose of watching copyright protected content without the consent of the copyright owner.<br /><br />Google automatically indexes the whole Internet and involuntarily (at least that's what they say) also provides links to pirated material. That's an entirely different situation.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-6914646757489703292017-04-27T11:37:35.771+01:002017-04-27T11:37:35.771+01:00In relation to the reproduction rights, this decis...In relation to the reproduction rights, this decision creates an (in my view, unjustifiable) difference between viewing of copyright material in physical form and on the internet (also, see Lord Sumption in Meltwater)<br /><br />In addition, considering the references in p69 (i.e. "Advertising" and "main attraction of that player for potential purchasers"), I wonder if a different decision would be taken if I google "film x" and then I click on one of the results not knowing if it is legal or illegal. We are more and more distancing ourselves from the strict liability idea...<br /><br />Anyway, this is how I though about this issue following ACI(whose reasoning, in my view, would be limited to the private copying / download scenario):<br /><br />"By viewing the stream, a user is potentially infringing the reproduction right, as copies are made: copies from buffering, the screen copy and (depending upon the kind of stream) copies from caching.<br /><br />The main question is the applicability of any exception. After the CJEU clarification that article 5(2)(b) cannot be interpreted to allow reproductions from unlawful sources (ACI Adam), the only possibility is for users to rely on art. 5(1) InfoSoc. Applying the five condition of 5(1) to streaming, results in the following:<br />• Streaming is not the same as downloading, as no permanent copies are created in the computer hard disk – any existing copy is, therefore, temporary. <br />• It seems that any given copy on the computer resulting from streaming is transient as it will be deleted automatically from the computer memory once the streaming transmission is closed (Infopaq I).<br />• While streaming, the temporary copies of the work are an essential and integral part of a technological process, as they are necessary for its correct and efficient function (Infopaq II).<br />• A use should be considered lawful where it is authorised by the right holder or where it is not restricted by the applicable legislation (FAPL and Infopaq II). In FAPL, it was held that the visual display of broadcasts did not reveal an act restricted by the EU and, therefore, fulfilled this condition. A similar answer should be giver to streaming, in which any temporary reproductions are intended to a non-restricted act: the mere reception of the works.<br />• Any temporary act of reproduction resulting from viewing a streaming lacks independent economic significance, since they do not enable the generation of any additional profit to the user that goes beyond that derived from a lawful use of the protected work and do not lead to any modification of such work (FALP and Infopaq II). Applying to this scenario, the occurring reproductions do not have any economic value other than that which is inherent in its mere reception and viewing and, hence, cannot be regarded as having independent economic significance.<br />• (Following Infopaq II, article 5(5) is fulfilled as long as all the conditions of article 5(1) are fulfilled)"Pedro Malaquiashttps://www.blogger.com/profile/07534086208709473863noreply@blogger.com