A Kat's 2016 Copyright Awards

Kat-awards day!

With the holidays on us 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.

Over the past three years [here, here, here], I have reviewed [in a completely arbitrary and EU-obsessed fashion, of course] the copyright year, and award a number of [symbolic] prizes to the most relevant developments occurred during that year. 

Once again, it seems that in 2016 Europe has been a never-a-dull-moment kind of place copyright-wise, with a couple of notable exceptions.

So here we go:

Most important copyright decision

"GS Media, for sure!" many would say. Although the latest instalment [Katposts here] from the Court of Justice of the European Union (CJEU) in its own linking&copyright saga is an important one with significant implications, it does not get the prize. 

The reason is that thee is another decision, again a CJEU one, that - on the one hand - has possibly attracted less attention than GS Media - but that - on the other hand - appears to have more systematic, deeper, consequences for the overall copyright architecture in Europe.

It is the November decision in Soulier [here and here], in which the CJEU ruled that national legislation [in that case, it was the 2012 French loi on out-of-print books] that vests ab initio third parties, eg approved collecting societies, and NOT authors with the right to authorise the making of acts restricted by copyright is incompatible with EU law. 

The late Marc Soulier

Although the body of the decision contains some significant nuances, Soulier is important because, together with the earlier CJEU decisions in Reprobel [here - but Article 12 in the proposed Directive on copyright in the Digital Single Market appears to have the mission to 'erase' it] and VOB [here], represents a very strong application of the so called author principle.

First, despite contrasting hints in the past in which the CJEU appeared to employ the terms 'authors' and 'rightholders' interchangeably, the Court reinforced the idea that who the InfoSoc Directive intends to grant a 'high level of protection' to is authors.

Secondly, although not referring explicitly to the notion of EU preemption [on which see also here], the CJEU fully embraced it. In this sense, there is no gap between the CJEU judgment and the Opinion of Advocate General (AG) Wathelet [here], who dismissed the view that the national legislation at issue would not affect the protection of copyright because it simply constitutes an arrangement for managing certain rights which the InfoSoc Directive does not preclude. What matters - for both the CJEU and the AG - is whether authors have had the possibility to express their individual consent regarding uses of their works. 

Overall, Soulier calls for a more thorough scrutiny of national legislations, and the way in which authors are able (or instead removed from the possibility) to consent to future uses of their works, or at least be in a position to receive - individually - all relevant information. 

Ultimately, the CJEU appears to have brought (for the time being) authors back to the central stage.

Most important piece of legislation

Not much seems to have happened in the legislative sphere this year, as Governments have been busy consulting [see, eg, Singapore], receiving proposals [see, eg, Australia], or handling situations other than copyright reform ...

All in all, the main driver of legislative change - or, at least, proposals for a change - has been the European Commission. 

In particular, its proposed [so not an actual piece of legislation] directive on copyright in the Digital Single Market is noteworthy for the innovations that it contains, including:

• a new neighbouring right for press publishers (Article 11) [here, here, here];
• new obligations for certain types of hosting providers (Article 13) to address the so called 'value gap' [here, here, here];
• an attempt to forget unwanted CJEU case law (Article 12);
• new mandatory exceptions (Articles 3-6).

A heated debate has ensued regarding some of the proposed provisions ... so the next few months promise to be - to say the least - interesting.

Copyright person of the year

Following a (concerning) period in which Advocates General were rather absent from the CJEU copyright scene [which prompted this little j'accuse], it is now a relief to see not only that they are back in action but also produce thought-provoking opinions.

This year's prize goes indeed to an Advocate General: AG Maciej Szpunar [who, incidentally, will be also one of the two keynote speakers at the forthcoming JIPLP copyright conference in London]. 

Advocate General Szpunar

The reason is that in his 2016 opinions, eg the one in VOB [here] and that in Hotel Edelweiss [here], AG Szpunar has given a central role in copyright to the general principle known as "dynamic interpretation of the provisions of law, which is capable of adapting the wording thereof to the changing conditions in fact and thus allowing the objective sought by those provisions to be attained." [para 35 of Hotel Edelweiss]

This principle, among other things, has been central to his determination (later confirmed by the CJEU) that libraries should be allowed under EU law to lend, not only physical books in their collections, but also electronic ones.

The need to frame copyright within a dynamic view of its surrounding environment is not a new one: for instance, Recital 5 in the InfoSoc Directive makes it clear that the law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation. Yet, AG Szpunar has shown in his opinions how to use this interpretative principle constructively, substantially and intelligently, and not - as some policy-/lawmakers tend instead to do at times - as an empty refrain.

The next opinion of AG Szpunar? It will be released on 19 January: stay tuned!

Grab them by the value!

Most important unresolved issue

There is nothing new here: it is still the same problem that has existed as long as copyright itself, ie the relationship between restricted uses, and uses that do not require permission from the copyright owners (exceptions, defences, limitations, free uses ...).

Over the past year, however, we have seen this discussion resurfacing with renewed significance: 

• in Europe, the Commission's proposed directive calls for the introduction of new, mandatory copyright exceptions, whose ambition and scope - in my view - are however limited; in addition, the value gap proposal in Article 13 might have restrictive effects on both hosting providers' freedom to conduct business and users' freedom of expression and privacy;
• in Australia, the Productivity Commission has just submitted a report to the Government advocating a number of changes to that country's IP regime. Among other things, the report submits that Australian copyright law should move from a closed system of exceptions to an open-ended fair use approach;
• in the US the record industry has recently sent a letter to PEOTUS Trump [reported on The 1709 Blog], calling for action on the so called 'value grab' [not a joke - but who is the music executive who made the deliberate choice to call the 'value gap' 'grab' with someone like Trump himself?]

We will see in 2017 whether any of these discussions lead somewhere.

Most important policy issue for 2017

In my view there are two top issues.

First, it will be important to see whether and to what extent the European Parliament and the Council will alter the copyright proposals advanced by the European Commission. The EU experience is likely to have spill-over effects outside Europe [as the 'value grab' discussion in the US demonstrates], so the debate that will unfold before EU institutions will be likely followed closely in Europe, but also outside it.

Britt Dekker for Playboy

Secondly, 2017 is also likely to be the year when UK Government triggers the now famous Article 50. At the moment what 'Brexit' means is not entirely clear, and for copyright it will be vital to understand whether the UK intends to remain in the European Economic Area or not [see here for an early take].

Most important copyright-protected work

Here there is little doubt.

The most important copyright works of the year are TV personality Britt Dekker's photographs for the Dutch edition of Playboy. 

Clearly of great economic importance, the leaked photographs have prompted litigation between Sanoma (the publisher of Playboy) and GS Media all the way up from the Amsterdam District Court to the Dutch Supreme Court and from there to the CJEU [see here for more background information]. 

The CJEU has tried to provide some guidance on how to tackle linking to unlicensed content through its GS Media decision, but the last word on linking has hardly been told yet. 

Well, while waiting for the next linking case, enjoy the holidays and thanks for all your support, feedback, comments, criticism, information and materials provided this year!