AIPPI Congress Report 4: A balancing act - copyright versus other rights

The AIPPI Congress started in earnest on Monday morning.  Although many were already lamenting the cruelty of those who decided to hold an IP conference on a beach resort, it was not enough to pull them away from the start of the panel sessions.  One of the most popular was the copyright session on the balancing exercise between copyright and other rights.  First time attendee (and the UK Group's prize winner), Sarah Blair (Bristows LLP) was at the helm ready to report on the session for the IPKat.  Sarah reports as follows:

The AmeriKat's fleeting Sunday night view

"Jan Bernd Nordemann (Boehmert & Boehmert) chaired a panel session to discuss the means by which copyright laws in different jurisdictions seek to achieve balance between copyright and other rights and interests.

Irely Aquique (Mexican Institute of IP) spoke about the Mexican Institute of Industrial Property’s (IMPI) approach to this issue (for which she is the Director of IP Enforcement). Irely distinguished between what she termed the “individual dimension” – the creator’s moral, economic and intellectual property rights for his or hers work – and the “collective dimension” – the public’s right to information and access to information. Whilst the Institute does not consider there to be a hierarchy between the two, a balance must be struck to maintain a fair marketplace. That marketplace must respect that, if protection is not secured for copyright content, there will be less information for the public to consult. As a consequence, IMPI is taking measures to crack down on online piracy and is encouraging the government to legislate to protect creator’s rights in advance of further technological developments which might further threaten creator’s abilities to protect their content online.

Next up was Gregory Sebold (Merchant & Gould) speaking about the United States’ approach. Gregory thought that the key way the US copyright system seeks to balance copyright against other rights is by way of the exceptions to copyright infringement and how the courts interpret “fair use”.

Two cases were discussed to demonstrate the different elements that factor into a court's cmkreasoning when conducting this balancing act. The first was a case concerning the former President Gerald Ford memoirs. Time Magazine was granted an exclusive license by publishing house Harper & Row for the first pre-publication of certain excerpts. However, The Nation Magazine obtained an unauthorised copy and released this first. Having been sued by Harper & Row, The Nation Magazine unsuccessfully relied on the fair use exception for news reporting. The Supreme Court rejected this: the magazine was not news reporting but “scooping”, by taking and publishing a qualitatively significant piece of the copyright work. The correct balance in this case was to protect the copyright holder’s rights. The Supreme Court took a different view in Roy Orbison’s copyright infringement claim against 2 Live Crew for its parody of his song “Oh, Pretty Woman”. Despite having taken a few lines of lyrics from the song, along with a riff which was repeated throughout the song, the Supreme Court held that it was “transformative” and was a parody falling within the fair use exception. This was despite the evident commercialisation of 2 Live Crew’s song.

As to online infringement in the US, there is – as is the case across many countries – an ongoing debate between those who think that ISPs should be financially responsible for infringements occurring on their platforms, and those who think the opposite. The key issue in the US courts revolves around the ISP’s awareness of the infringing activities on their platform and what constitutes the requisite knowledge to pull a company out from the DCMA’s safe harbour provisions.

The final speaker was Remy Chavannes (Brinkhof) speaking on the EU position. Remy explained that there has been an evolution in how the courts in the EU have addressed this balancing act as follows:

1) Traditional balancing – the rules of copyright law are designed to balance copyright versus other rights. Recital 31 of Directive 2001/29/EC states that “a fair balance of right and interests between…rightholders and users of protected subject matter must be safeguarded”. Whilst not binding, the recitals provide context to the purpose of the exhaustive list of exceptions and limitations – and the restrictions which apply to them. The CJEU in Promusicae (C-275/06) stated that when transposing these rules into national law, Member States must strike this fair balance.

2) Internal fundamental rights balancing – using fundamental rights to interpret copyright rules. The decision in Scarlet/SABAM (C-70/10) shows the court’s shift to this approach when it emphasised that the protection of property is not absolute but must always be balanced against the protection of other fundamental rights. Remy made reference to GS Media (C-160/15), Deckmyn (C-201/13) and Telekabel (C-314/12) to demonstrate that the CJEU was no longer slavishly applying the exceptions, but thinking more broadly about how to balance all the interests at stake.

3) External fundamental rights balancing – taking the result of the copyright exercise to see if that result is compatible with human rights. The question lies before the CJEU in the reference of Afghanistan Papiere, which asks whether fundamental rights can be invoked to prevent the enforcement of copyright.

Remy concluded his thoughtful analysis by suggesting that the power was moving away from the legislature – who had defined the requirements and extent of the exceptions and limitations - to the courts. Increasingly, the CJEU allows for “relevant facts” to be taken into account, making it very difficult to predict the outcome of any case in which balancing rights is at issue."