Book review: Droit d’auteur 4.0 / Copyright 4.0

On this sunny Friday afternoon, why not sip some lemonade and drink in a book review from Katfriend Sabine Jacques [lecturer in IP/IT/Media law at the University of East Anglia. Her research mainly focuses on copyright exceptions and creative industries]. Luckily, Sabine also happens to be multilingual, as two of the chapters of this book are written in French (indicated below), the others are in English. 

The latest edition of Droit d’auteur 4.0 / Copyright 4.0, edited by Jacques de Werra, includes contributions from Yaniv Benhamou, Jo Oliver/Elena Blobel, Jean-Michel Bruguière, Ysolde Gendreau, Wenwei Guan, Daniel Schönberger. 

Copyright 4.0 represents the tenth volume of the series ‘propriété intellectuelle – intellectual property’. This time, the volume is devoted to the impact of the advent of technologies and digitalisation on copyright, and brings together contributions written in light of the ‘Journée de Droit de la Propriété Intellectuelle’ organised by the University of Geneva on the 22^nd of February 2017.

Without pretending to exhaust this broad topic, this book provides interesting regional insights on specific challenging areas including the enforcement of copyright online, the creation of user-generated content and also, the role of AIs in copyright.

Perhaps to some readers’ surprise, blocking injunctions have had a tumultuous journey in Swiss law. Yaniv Benhamou covers the Swiss legal developments of this type of injunction, considering civil liability, criminal confiscation, administrative procedures and the proportionality test enshrined in fundamental rights in light of the absence of any specific legal provisions, or comprehensive jurisprudence. The author reminds us that safe harbour provisions, such as present in the EU or the USA, do not exist in Swiss law. Intermediary liability is currently based on a more general framework, although in respect of copyright at least, this is likely to change in the future, which might itself be problematic because it fragments the legal framework. Here, the author calls for a coherent approach to intermediaries’ liability, and does not reject alternative solutions, such as de-indexing websites, or endorsing the ‘follow the money’ approach. Finally, the author favours self-regulatory models to increase transparency and flexibility in adapting the regime to new developments in this area. This chapter is written in French. 

Staying on this theme of website blocking injunctions, Jo Oliver and Elenal Blobel (IFPI) provide the music industry’s perspective, focussing mainly on the EU, although offering insights from other jurisdictions as well. In addition to providing an overview of the impact of blocking injunctions on the music recording industry, this contribution also offers some recommendations for improving the cross-border effect of injunctions to better protect right-holders. Additionally, the authors note that the effectiveness of website blocking injunctions for tackling online music infringements has been hindered by the ease with which website blocks can be circumvented. Here, the UK courts’ ‘dynamic’ injunctions are brandished as an example of good practice, which allows a blocking injunction to relate to a particular website instead of its domain name or IP address. The authors also welcome the recent ‘live’ blocking injunction granted in the UK, because this targets the streaming servers directly, meaning the order may adapt to technological advancement and new users’ habits.

Jean-Michel Bruguière’s contribution [in French] discusses the digital single market from two angles: the proactive behaviour of the CJEU and current legislative proposals. Firstly, the author notes the boldness and creativity on behalf of the CJEU in harmonising copyright law. Revisiting the GS Media decision, Bruguière questions whether it is appropriate to distinguish the burden of proof based upon whether the undertaking which provides the hyperlinks to the copyright-protected content has done so in pursuit of financial gain. This contribution also questions the scope of GS Media’s guidance, as well as highlighting the numerous areas which are yet to be developed. The sections on inflections and admonition are particularly interesting. The admonition award is attributed to the C-301/15 Soulier and Doke decision. In an audacious move, the CJEU not only reformulated the national questions (much criticised by Mr. Justice Arnold), but introduced an additional condition before the authorisation of the right-holder may be implied. This constitutes another example where the public interest has been cast aside in favour right-holders and their exclusive rights. Finally, the chapter comments on the EU Commission’s recent copyright proposals including the press publisher’s right. Although acclaimed by publishers, the author notes that there is no widespread enthusiasm for this proposal. He recounts that journalists fear that they will be worse off as a result of this new ancillary right and most online intermediaries cannot identify any market failure which requires this legislative intervention, which is only likely to increase transaction costs. Here, the author agrees with the criticisms and argues that a publisher’s right is unnecessary, given the remedies available under copyright and competition law. 

Ysolde Gendreau takes us to North America and tackles the challenges brought by user-generated content (UGC) and other digital copyright uses by focusing on users and online intermediaries. The author explains how the Canadian courts deal with the question of internet intermediaries’ liability differently to those in the USA by focusing upon the surprising outcome in Lenz, concerning a 29-second video of a baby dancing to Prince’s song – ‘Let’s Go Crazy’. Applauding the adaptability of fair use to new technological developments, the US approach is contrasted to the Canadian regime. Since the Canadian Copyright Reform in 2012, the UGC exception has attracted a lot of attention, but the author reminds us that this exception comes with many conditions attached. Firstly, it needs to lead to the creation of a new copyright work. Secondly, the use must mention its source. Finally, the use must not adversely affect the market of the original (i.e. the second step of the three-step test) which requires economic analysis based on the facts of a particular case. Another particularity lies in the requirement that the original source must be obtained legally and without circumventing a technological measure.  Interestingly, this Canadian exception shields both the user and any intermediary involved in the  dissemination of the UGC from liability. Finally, whilst both US and Canadian systems now include provisions tackling the digital environment specifically, these may lead to different outcomes, since the Canadian legislature has been more interventionist than its US cousin in the field of intermediary liability. The future is only likely to extrapolate the territorial issues linked to copyright laws.

An insightful and accessible read for any Kat

Providing a view from Asia, Wenwei Guan examines the local efforts amending copyright law in Hong Kong and Mainland China to adapt it to the digital era. Hong Kong’s current copyright system is modelled on the UK’s CDPA. Having gone through several reforms, the latest Amendment Bill 2014 brought some relief by further promoting freedom of expression and the public interest. However, the rejection of a UGC exception, while introducing a parody exception, leaves the author with a bitter taste, since both are seen to share similar objectives. Compared with Hong Kong, China appears less author-oriented, concentrating on the protection of trade interests, while Taiwan attempts to align itself closely with TPP provisions. Therefore, the author explains the real danger that users’ interests will be eclipsed by trade-related concerns.

Finally, Daniel Schönberger, looking at Swiss law, explores some challenges which AI creativity presents, but concludes that a new legal regime is not currently warranted. As the copyright paradigm rests on the idea that creativity requires a human component, how does this fit when a work has been ‘created’ by a machine? While there is no denying that most of these works are likely to pass a  threshold which is merely defined as useful and aesthetic, the output remains different from what we expect from human creativity. Schönberger argues against recognition of legal persona in robots. The author skilfully articulates that as copyright protection serves as a reward to foster future creativity, that protection is unnecessary for AI creations. Unlike human authors, robots do not need any incentive to continue creating. But also, what spill-over effect might there be on human creativity were robots awarded the same status as humans?

Copyright 4.0 is not only comprehensive and accessible but it can be read as a whole or in parts. This book certainly is of interest to those who research and/or study in the area of copyright law, as well as being a very informative read for anyone interested in the development of copyright law in the digital era.

Details

ISBN: 978-3-7255-8662-2

Publication Date: 2018

Extent: 194 pp

Hardback Price: CHF59.00, Currently available on the Schulthess Website.

photo: Aulusgellius