A Kat's 2017 Copyright Awards

Kat Awards!

The Holidays have finally begun, and the end of 2017 is quickly approaching. In line with what has become sort of a ‘tradition’ [here, here, here, here], also this year I have reviewed the past 12 copyright months and awarded a number of symbolic prizes to the most interesting or relevant developments occurred in 2017.

Overall, 2017 has been a year in which courts have been once again at the centre of attention, answering tough questions and providing attempts of solutions to very concrete and new problems. In contrast – possibly with the exception of Australia – not much has happened on the legislative front. It is true that the EU legislature has adopted new pieces of legislation, including a Portability Regulation (applicable as of 1 April 2018) and new instruments to implement the WIPO Marrakesh Treaty, but the most heated piece of legislation, ie the proposal for a Directive on copyright in the Digital Single Market [Katposts here], remains heavily debated and subject to contrasting views and proposals for amendment.

Overall, it can be said that 2017 has been dominated once again by online issues.

Anyway, without further ado, here we go:

Most important copyright decision

The choice is not easy, as in 2017 courts around the world have issued very interesting and potentially far-reaching decisions.

These include – amongst others - the saga (unfolding before the Delhi High Court and the Division Bench of the Delhi High Court) of the preparation and making available of course packs containing photocopied materials without permission from the relevant publishers, which our friends at SpicyIP have covered extensively, and the US Supreme Court’s (rather obscure) decision on ‘copyrightability’ of cheerleading uniforms [here and here], which other courts, eg the Israeli Supreme Court, have also considered.

However, in my view the most important decision this year has been once again one of the Court of Justice of the European Union (CJEU): Ziggo, C-610/15, ie The Pirate Bay case [Katposts here].

At times I have received observations that I may place too much emphasis on CJEU decisions: I accept this criticism, but the reasons why I believe that the Ziggo ruling is particularly significant is twofold.

First, it is the latest instalment in a string of judgments (nearly 20 since the landmark 2006 ruling in SGAE, C-306/05) which have tried to define the structure and scope of what has arguably become the most controversial and complex exclusive right, ie the right of communication to the public within Article 3 of the InfoSoc Directive.

Secondly, the judgment touches upon the liability of online platforms, and the CJEU has provided a response that goes beyond the particularly egregious case of The Pirate Bay. In this sense, the judgment provides an important tool to appreciate the evolution of CJEU case law on Article 3 of the InfoSoc Directive, and an interpretative aid for the various shapes that the controversial value gap proposal (Article 13 of the proposal for a Directive on copyright in the Digital Single Market) has taken over time, including the latest compromise proposal of the (soon to finish) Estonian Presidency of the Council of the EU.

One of the points that I have often heard being made about the Ziggo decision is that its actual relevance is nearly null, because – of course – you cannot say that The Pirate Bay (also look at its name!) is not liable of copyright infringement. In other words, the CJEU decision has been prompted by the very specific set of underlying facts, and cannot be regarded as having a broader relevance. I do not agree with this reading for a number of reasons, including that: (1) all CJEU judgments originate from very specific sets of facts; and (2) the analysis undertaken by the Court builds upon its earlier construction of the Article 3 right and, although fairly ambiguous in some parts and deserving of further elaboration, paves the way to an understanding of whether and in what sense online platforms may be directly liable for users’ infringements.

Finding safe harbours ...
easy?

Most important piece of legislation

Last year, I indicated the proposal for a Directive on copyright in the Digital Single Market as the likely to be most relevant piece of legislation (once adopted). I remain of the view that the directive will be significant, so it is important to follow closely the relevant developments over the next few months.

The piece of legislation that gets the prize this year is also at the proposal stage. It is the proposed reform of Australia’s safe harbour regime. Introduced a few days ago, the Copyright Amendment (Service Providers) Bill proposes to extend the existing – quite narrow – safe harbour regime in the Copyright Act (Part V – Div 2AA) for carriage service providers (defined narrowly in the Telecommunications Act 1997) to the disability, education, library, archive and cultural sectors.

The Bill is noteworthy especially because of its scope. If passed in the form proposed, the Australian safe harbour regime would in fact remain narrower in scope than what is the case in other countries, it being arguably unavailable to online service providers like hosting platforms [here, here, here].

Together with the current discussion in the US (§512 DMCA) and EU (Article 13 of the proposed Directive on copyright in the Digital Single Market), the Australian move may be read as signalling a general trend towards a greater, rather than less, responsibilization of online service providers. While rightholders would enjoy greater protection, one might wonder what impact all this would have on potential new entrants on the market, notably start-ups, given resulting compliance costs.

Copyright person of the year

Not a person, but someone whose next friend (PETA) has deemed deserving of the same protection of persons as authors in a copyright sense, ie everyone’s favourite macaque: Naruto.

Although the Monkey Selfie case was settled out of court in mid-2017, after a long-running battle that has allegedly left wildlife photographer David Slater broke, the case is important because it raises an issue that is not new, but is nonetheless likely to be faced with increasing frequency over the next few years, also thanks to the potential of Artificial Intelligence (AI; see further below): who is an author in a copyright sense?

As I discuss more at length here and here, the question of non-human authorship is not really (or just) about whether a monkey can be the owner of copyright in the photographs that it takes, but whether increasing sophisticated technologies, under the umbrella of AI, would result in the broadening of the understanding of what (rather than who) an author is.

For years, literature and cinema have raised the question of what a human. Now such issues might re-surface with increasing frequency and relevance also in the area of copyright and, in doing so, test the scope of protection.

Most important unresolved issue

This is an issue that is somewhat unresolved because, on the one hand, there is not a clear rule written at the legislative level and, on the other hand, it arises in an area (injunctions against intermediaries) that has been proving particularly fast-evolving. It is the issue of costs of injunctions against intermediaries: who has to bear them?

Since the landmark Newzbin 2 decision (2011) [here], the rule in the UK has been that intermediaries bear the costs of application for an injunction within s97A of the Copyright, Designs, and Patents Act 1988 (including a blocking injunction), while intermediaries bear the costs of implementing the injunctions.

Filtering

However, in the Cartier case [here; if I am not mistaken, this was the first time that in the UK the online intermediaries targeted by an injunction ever appealed the decision and resulting order] the issue of costs has taken centre stage, especially in light of the dissent of Briggs LJ in the Court of Appeal [here]. Now, the UK Supreme Court will have to decide on the issue of cost allocation.

In France the Supreme Court [here] has taken an even more trenchant approach, holding that intermediaries have to bear all costs, while in his Opinion in Mc Fadden, C-484/14 [note that however the case did not really concern costs of intermediary injunctions] Advocate General Szpunar had suggested that intermediaries should not be responsible for any costs relating to copyright enforcement in the event of third-party infringements (but the Court did not really follow him on this point).

Why is the issue of costs so important? For one thing, because the number of applications for intermediary injunctions has been growing over time, with an increasingly diverse group of rightholders seeking them and different types of orders being granted by courts, including the news of 2017 – live blocking.

Most important policy issue for 2018

This is something that is currently being discussed in a number of jurisdictions, including Thailand (which is in the process of reforming its law, further to a number of recent amendments) and the EU, and is the issue of filters and notice-and-stay down obligations.

To what extent can an intermediary be required to prevent the uploading (or re-uploading) of potentially infringing content?

Existing legislation and case law provide some – but not complete – guidance, and the issue of filtering remains subject to heated debate. What will the future hold?

Most important copyright-protected work

Have you listened to Hello Shadow yet?

If not, then you should. Besides being a quite catchy tune, this single is the first one extracted from the first multi-artist music album composed with AI.  The album was curated by Benoit Carré, head of SKYGGE, who collaborated with several musicians and performers, including - in the case of Hello Shadow - Stromae [Papaoutai, amongst others] and Kiesza [Hideaway, amongst others].

Hello Shadow suggests that creativity and AI can go hand in hand, but also – in not too a far remote future – that AI has the potential to create on its own. But will the resulting works be protectable?

However, the most important copyright work of the year is not Hello Shadow, but rather Heks'nkaas ☺ What is this? It is a spreadable Dutch cheese whose taste is allegedly protected by copyright. Further to litigation in The Netherlands, the Heks'nkaas case has now headed to the CJEU: does EU copyright allow protection of the taste of a food product?

I discussed this reference here. We will know the answer of the CJEU sometime in late 2018 or early 2019 … but in the meantime why not dreaming (or rather having the nightmare, depending on one's own views) that the Court will say yes to sensory copyright?

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Best wishes to all IPKat readers for a copyright-rich and fun New Year, and many thanks for following the blog this year!