Copyright Usurped - EU Proposal for a New Copyright Directive

This article was kindly drafted by Axel Beelen, who writes the blog IP News (focusing on EU and Belgian IP developments). He can also be found on Twitter here. He is also a data protection specialist.

In September 2016, the European Commission published a proposal on a new EU Copyright Directive. This new proposed Directive follows the InfoSoc Directive, drafted in the wake of the European Commission's review on the modernization of the EU copyright rules. The European Commission has presented legislative proposals to make sure that consumers and creators can make the most of the digital world, and will aim to help European copyright industries to flourish in a new Digital Single Market and authors to reach new audiences. The proposal is still fiercely discussed at the European Parliament, with plenary vote set for late 2017 or early 2018.

This article aims to set out the key points of the proposed Directive, and to discuss its impacts in the EU legal landscape.

1. The EC Proposal

1.1 A new publishers' right (Art. 11 of the proposal)

Because press publishers are facing difficulties in licensing their publications online and obtaining a fair share of the value they generate (which could ultimately affect citizens' access to information), the EC wants to provide publishers with the same reproduction and communication to the public rights that the InfoSoc Directive provide for authors. 

These new rights for publishers (so-called "neighboring rights" or an "ancillary copyright") would apply for 20 years after each publication.

Some fear that these provisions would generate more income for European publishers by allowing them to charge internet platforms for displaying snippets of their content to users. In fact, anyone using snippets of online content would first have to get a license from the publisher responsible for the content. 

The new neighboring right has been sharply criticised by Google and other businesses sharing online content. News aggregators argue that they provide online publishers more visitors on their websites (in turn increasing revenues from, for example, ads), and are not substituting the publication of the original works.

Sometimes it's easier to not bother with copyright

The EC's proposal is a clear response to uncertain and temporary national solutions to tackle this phenomenon, resulting in either the conclusion of agreements between Google and local press publishers (Belgium, France, Italy) or the adoption of legislative initiatives (Germany, Spain) in relation to news content forcing news aggregators to pay publishers when their headlines and news snippets appear in the news aggregators services. In Germany and Spain, right after the adoption of the regulation, Google Inc. stopped its local Google News tool. As a result, German and Spanish publishers said they lost significant traffic.

1.2 The value gap (Art. 13 of the proposal)

As legal access to streaming movies, music and literary works has become more ubiquitous and easy for consumers in recent times, there still is a clear gap in the remuneration (or the lack of increase thereof) of rightsholders through these services. 

The gap is between what service providers like YouTube, DailyMotion, Vimeo and others are willing to pay for e.g. music licenses and their real market value. The difference between rightholders' income and YouTube revenue is profoundly immense and the latter have limited appetite to properly or sufficiently remunerate rightsholders for copyright-protected content online. 

In place of talking about a “value gap”, we should focus more on the big 'transfer of value' between the value that certain digital platforms extract from music, movies and other works and the smaller value that is returned to related rightsholders. These digital platforms are clearly under-licensed or not licensed at all. 

Following Article 13 of the proposal, internet platforms hosting “large amounts” of user-uploaded content must monitor user behavior to identify and prevent copyright infringement. It will mean that intermediaries will have to attain proper licences and will have to implement filtering technologies to proactively prevent infringing activities. As raised by many, one of the most concerning aspects of the EC’s proposed legislation is the complete lack of detail provided on how the suggested policies would be implemented.

Note that, beside the use of not defined terms (e.g. what qualifies as “large amounts” of content), this part of the proposal could be in breach of existing EU law. Indeed, the safe-harbor provisions of the E-Commerce Directive forbid general monitoring obligations that Article 13 would establish, which was confirmed by the CJEU in SABAM v Netlog.

1.3 A limited text and data mining exception (Art. 3 of the proposal)

Article 3 of the EC Proposal (“Text and data mining”) aims to establish a new EU-wide copyright exception for the modern research method of text and data mining, but only for “research institutions” and “for the purposes of scientific research”, and only when the research institutions “have lawful access for the purposes of scientific research”. 'Text and data mining' means any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations. 

One can criticize the limits of this new exception, in that why should “data mining' not be permitted for research conducted in a commercial context, for purposes of journalism and for any other purpose? 

2. Publishers' right to disappear and be replaced by a presumption of representation

The adoption of the Directive requires several European Parliament (EP) Committees to draft opinions that will then need to be taken into account in the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee.

The draft report of the JURI Committee written by rapporteur MEP Comodini (EPP) was published in March 2017. 

It does not mention the publisher neighboring right anymore as discussed above on point 1.1. The report rejects the Commission’s premise and clarifies that using snippets to make news discoverable is not necessarily harmful to publishers’ financial interests, and thus shouldn’t be subject to licensing. 

The paper proposes to replace the neighboring right with a right that "…provide[s] publishers of press publications with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications". It has to be seen if this would also mean that publishers can still sue for non-licensing.  

Moreover, the draft report proposes to remove the obligation for automated monitoring for online service providers, leaving electronic platforms to ensure the functioning of agreements with rightholders without prescribing how to do so. Only information society service providers that are actively and directly involved in the making available of user uploaded content to the public should take appropriate and proportionate measures to ensure protection of works or other subject-matter.

Those measures, such as the use of effective content recognition technologies, have to be appropriate and proportionate. The service providers have to provide rightholders with adequate information on the functioning and the deployment of these measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter on their platforms.

The Legal Affairs Committee also wants to extend the text and data mining exception to all people considering that if you have the right to access/read content, you also have the right to mine it.

3. Deadline

Amendments to the draft report were accepted until 12 April 2017, after which the report and the amendments will be debated again and voted on in June 2017. The plenary vote at the European Parliament on the Directive text is expected at the end of 2017 of at the beginning of 2018.

Locked Out - Providers of WiFi Access Not Liable for Copyright Infringement, Says CJEU

As wireless internet connections have become near ubiquitous in our daily lives amongst the cafés, libraries or businesses we visit, so has our appreciation for the facility, especially when traveling when a weary traveler might not have a connection on their smartphone. But underneath these open networks lurks the danger, and question, of possible abuse, and thus liability for those who operate the networks. This matter has been litigated in the European courts for some time now, and after an Advocate General's opinion early this year (discussed more here), many IP specialists have been waiting for the decision in McFadden; something the CJEU finally handed down late last week.

The case of Tobias Mc Fadden v Sony Music Entertainment Germany GmbH dealt with the provision of an unprotected wireless network connection by Mr Mc Fadden at his business selling and leasing lighting and sound systems, which aimed to bring in business and interest for his endeavor.  In late 2010 a song was shared in his network by a third-party (the rights to which Sony Music owned), and Sony subsequently sent Mr Mc Fadden a notice to this effect. Mr Mc Fadden then took the matter to court, seeking a negative declaration of infringement, to which Sony counterclaimed infringement. The matter ultimately ended up in the CJEU, who sought to take on the matter of liability of infringement for the provider of an unprotected wireless network.

The referring court asked eight questions of the CJEU, who took each question in turn to answer the matter.

The first question dealt with whether the provision of an open WiFi connection could fall under Article 12(1) of the E-Commerce Directive, i.e. whether the service would be classed as an 'information society service'. The Court quickly saw that, even in the light of a lack of remuneration (as required by EU legislation in this instance), the service would be classed as an 'information society service' under the Directive if "...the activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider". The provision of the service is clearly therefore equated to one producing a monetary gain, even if not charged for on the outset, possibly therefore being afforded safe harbor protection as a 'mere conduit'.

The CJEU then moved onto questions two and three, which they summarized together as asking whether Article 12(1) of the Directive only requires the provision of the aforementioned service so as to be included, or if further conditions have to be met for it to be deemed as have been provided under the Article. This would include a contractual relationship and the advertisement of the provider's services. The Court concluded that, for the service to have been provided under the provision, the access must not "...go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, there being no further conditions to be satisfied". This follows recital 43 to the tee, and clearly the mere passive provision of such a service would be deemed to have been 'provided' by virtue of doing only that.

Password required? Not interested!

The Court then answered the remaining questions in a non-sequential fashion, tackling question six first. This asks whether Article 12(1) should be interpreted as including a further condition set out in Article 14(1)(b) (on the removal of infringing content upon notification thereof). The CJEU saw that, as the Articles dealt with very different services (communication services v hosting), the condition does not apply to the provision of more transient services, but to ones that remain more permanent in the provided services (meaning, content hosted on a website stays on said website till removed, unlike in mere transient communication using a wireless connection).

This was followed by questions seven and eight, which the CJEU clumped together, summarizing them as asking whether Article 12(1) includes any further provisions in addition to the one within the Article, which are not expressly mentioned. The Court quickly dismissed this assertion, as further conditions would clearly impede the balance sought by the legislature in the introduction of the provision.

The Court then moved onto question four, which, in essence, asked whether a person (or entity) harmed through the infringement of a right could seek injunctive relief and/or possible costs for the harm caused using the above service to do so. If read in seclusion, the Article does preclude a person harmed from seeking such remedies; however, it does not expressly prevent them from doing so using national authorities to prevent the infringement from continuing. This would seem correct, as Article 12(3) expressly does not preclude national authorities from requiring such actions and/or allowing for the retrieval of costs.

Finally, questions five, nine and ten remained, which asked effectively whether the granting of an injunction such as the above is allowed (and complied with by the provider), when the provider is required to secure their connection through either a password or by monitoring the connection used. The Court emphasized the need to strike a balance between the rights afforded by the Directive and the Enforcement Directive 2004/48, especially when multiple rights are engaged in such an issue (as is the case here). The Court considered the different ways in which IP rights could be protected, and decided that "...a measure intended to secure an internet connection by means of a password must be considered to be necessary in order to ensure the effective protection of the fundamental right to protection of intellectual property". This measure would, according to the Court, protect both rights in intellectual property, as well as the freedom to conduct business through the supply on a wireless connection and the right to information in using the above. One has to, though, provide their details in order to be able to use the connection and therefore be identified if needed.

The CJEU's decision sets out a practical approach to protecting both interests, while not overly restricting the provision of wireless connections. The striking of this balance was key, and the CJEU seem to have settled on the right answer. The measures required are by no means excessive, and afford the provider plenty of protection in the event of the connection's abuse.

Clear Enough? - CJEU Further Clarifies Communication to the Public

The CJEU does not seem to be able to make its mind up on the topic of what amounts to a 'communication to the public', as is perfectly illustrated by the recent decisions in Svensson, C More Entertainment, BestWater and the Advocate General's opinion prior to the decision in GS Media (the very decision so many are waiting for). This difficulty in establishing a firm position on this very important subject has created many headaches for IP practitioners, who, by now, are grasping for any concrete and consistent judgments to this effect. While we have to still wait on the CJEU tackling GS Media, there is potentially some respite in the air via a decision discussing, yet again, what a 'communication to the public' might entail.

The case of Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v GEMA dealt with the a rehabilitation center, Reha Training, which provides post-operative treatment to better rehabilitate those who needed it after their medical procedures. The center itself included two waiting rooms and a training room (similar to a gym), where, between June 2012 and June 2013, they showed television programs for the patients who used the facilities in their recovery in installed TVs in the rooms. No permission was requested from GEMA (a German collection society) to display the content for the patients. GEMA then took Reha Training to court, asserting that the display of the TV content amounted to a 'communication to the public' under the InfoSoc Directive.

The referring court essentially asked whether the broadcasting of TV programmes in a rehabilitation center constitutes a communication to the public under several provisions (including the above Directive).

The CJEU first observed that, as the question referred to dealt with two Directives that mention a 'communication to the public', the provision in the InfoSoc Directive applies without prejudice to the application of the Rental Right and Lending Right Directive (which, similarly, offers the exclusive right to the author to communicate to the public a work, though through a more monetary provision). Although the wordings in each of the above Directives differs somewhat from each other, the Court concluded that their interpretation should be the same in order to keep a unified and coherent legal standard. They further clarified this, establishing that "...the different nature of the rights protected under those directives cannot hide the fact that, according to the wording of those directives, those rights have the same trigger, namely the communication to the public of protected works". Arguably, the interpretation of what amounts to a 'communication to the public' should be clear across the board, and this writer would agree that, unless specifically needed, the interpretation should be the same irrespective of the context of a given directive.

The Court then moved onto discussing the actual interpretation of the phrase. As the Court stated, this involves the assessment of several criteria, and the phrase has to be interpreted broadly. The criteria that are looked at are whether there has been an 'act of communication', and if that has been done to a 'public'.

No, Chuck, you can't communicate what you want,
even with a megaphone

In putting things in simple terms, the Court stated, as established, that an 'act of communication' is "...any transmission of the protected works, irrespective of the technical means or process used", and that every such transmission, to be legal, has to be authorized by the author of that work. Following on, the transmission of the work, to be an infringement of the above rights, has to be communicated to a 'public', which is deemed as "...an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons". The public cannot be a restricted, small subset of people, but 'persons in general'. The CJEU has also established that the communication has to happen to a 'new public', meaning people who the author did not take into account when they authorized the communication of the work (i.e. if the content is paywalled, any people who do not have access through said paywall would be, prima facie, a 'new public'). This also involves a clear and calculated part by the person communicating the work to the new public, where their intervention is essential for the user to receive that broadcast. Without the intervention and the clear 'targeting' by the communicator, there would be no communication to a public.

In the earlier decision in SCF v Marco Del Corso the Court discussed this type of communication in a similar context, holding that the broadcast of TV programming in a dentist's office is not a communication to the public, as the patients do not visit the office to primarily watch TV, which in turn does not increase the users of that particular practice (or its attractiveness to a new public).

The Court concluded that Reha Training had indeed communicated the works to a public, as, drawing an analogy to previous case law involving restaurants, spas and hotels "...the operators of... [the] establishment carry out an act of communication where they intentionally broadcast protected works to their clientele by intentionally distributing a signal by means of television or radio sets which they have installed in their establishment". The clientele would not be an insignificant number, and the intervention of the operator of the center is key for their enjoyment of those works, and were not in the contemplation of the original broadcaster as an audience for the works, making them a 'new' public. The communication of the works also makes the center more attractive to prospective clients, giving it a competitive advantage (and thus benefiting from the communication).

The case is a curious development, and further cements the CJEU's position on the concept of a 'new public', which has been somewhat rejected in the Advocate General's opinion in GS Media. As the decision in the case looms in the horizon, it will be interesting to see whether this decision has a big impact on it, and whether the mere provision of hyperlinks would be an intervention that is indispensable for the enjoyment of the works, especially considering the material is freely accessible online to begin with (rather than locked behind a paywall). This writer believes the CJEU will not deem the sharing of hyperlinks to be a communication to the public, but the Court's track record does show that there are no guarantees to this effect.

Source: IPKat

Icons Gone - Photography of Landmarks to be Prevented Through Copyright?

Memories are an important part of life, especially when it comes to travels to far-away lands or places, filled with culture, icons and landmarks that dot human history's timeline. As an avid traveler, this writer has taken his share of photos, both digital and of the physical, film variety, and often looks back at them with fondness and nostalgia. Pictures also form a part of the fabric of visual heritage of different cultures, and their importance cannot be overstated. Nevertheless, as a part of the InfoSoc Directive's implementation report, specifically relating to Article 5 of the Directive, any EU Member State could introduce restrictions to rights conferred in Articles 2 and 3 of the Directive.

To expand on this a bit more, the Freedom of Panorama enables individuals to take pictures of sculptures or other permanent installations and publish them without a need to consult the original creator or architect to do so. Currently the legal landscape for Freedom Of Panorama is very scattered, with some countries in the EU allowing all uses of such pictures (some with certain limitations, such as non-commercial use), while others, such as France and Italy, allow for no publication of images of this nature. Arguably the ability to publish one's vacation photos should be a 'right' in itself, with potential restrictions on commercial utilization being a viable option (although, one can imagine, costly to enforce effectively).

Frank was a savant in monument photography

In the proposed amended report put forth by Julia Reda (with the initial report discussed on this very blog here) Freedom Of Panorama was curtailed somewhat, as a recommendation set forth that "...the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them". Ms Reda's initial report had a very different view, proposing that photographs of such places would always be permitted. This writer would promote striking a balance between the allowance of sharing photographs with their commercial utilization with no licence contribution. Arguably, enforcement and ensuring that all images were actually taken for the commercial purposes would be challenging, and potentially nigh impossible, yet it still remains an important consideration in this context. People should be able to share their vacation photos with no need to seek permission, but should not be able to sell those images as postcards, for example, willy-nilly.

The measure has since been rejected, which is a great development; however, one has to note that the resolution is non-binding, potentially leaving the door open for the restriction of Freedom Of Panorama in the future. This writer doubts any substantial restrictions would ever be introduced, and even if they would be, their enforcement would be their downfall. Online services like Facebook and Picasa would have to restrict the displaying of photos that would infringe on this potential provision, bearing the brunt of the enforcement of any takedown notices from subsequent rights' holders.

This discussion surrounding the Freedom of Panorama highlights the persisting importance of copyright in everyday life, even regarding mundane, more obvious 'rights'. Should a restriction be implemented monuments around the world would probably have stewards requesting payment after a photograph is taken, affecting the magic of amazing sights that people have wanted to see on their journeys. Nevertheless, as the measure has been rejected it seems highly unlikely, but this writer will follow any developments with interest.

Source: The Times

Coffee Shop Conundrum - ECJ Set to Decide on Free WiFi and Third Party Liability

In a time when the internet is nearly always with us, be it in a smartphone, a laptop or other smart devices, you often taken things for granted such as free WiFi. For many travelers it has saved their behinds from being lost, out of money, or in some unfortunate cases, even potential harm, and many of us in bigger cities like London can easily overlook the need for WiFi. But, as Uncle Ben framed it so eloquently: with great power (i.e. Internet connectivity) comes great responsibility. People can be inconsiderate, and at times outright indifferent, to potential liability issues in using other peoples' or organizations' free WiFi, which begs the question: can a third-party be liable for possible infringement on their wireless network?

The answer to the question possible lies in the forthcoming decision of McFadden, faced by the European Court of Justice later this year (this writer hopes). The case, refereed to the ECJ from the Regional Court of Munich (decision in German can be found here), concerned a store owner, Toby McFadden, in Germany who's store specialized in light and acoustic engineering services. To further promote the store and its offerings the owner allowed potential customers to freely access a WiFi connection, with no password protection included. An unknown user used this free network to upload and share an infringing song on an online file-sharing platform, and Mr. McFadden was subsequently sued by Sony Music who argued he is liable for the infringement (among other things) that occurred on his unprotected network.

The case does bring forth several questions concerning Article 12 of Directive 2000/31/EC, more commonly known as the E-Commerce Directive. Although each of the questions merits an assessment in their own right, for the sake of brevity this writer shall endeavor to answer the question above, at least in the light of Article 12.

Wifi can cause some degree of envy

What Article 12 seeks to protect are service providers, or in other words 'mere conduits', who provide a service such as free WiFi, should they remain largely hands-off of the provision of that network (i.e. don't cherry-pick the users accessing the network, don't initiate the transmission of information or alter what is received in some way). This, however, cannot be a service for which the provider is remunerated, per Recital 18 of the Directive, and aims to facilitate the better sharing and access of information within the European Community.

This writer will freely admit his lack of knowledge in German law, but proposes to give a perspective from the UK side of things. Pinsent Masons in their Out-Law blog have set out that, per German law, individuals have to secure their internet connections through reasonable means, such as a password, to avoid liability should a third-party use their connection for nefarious purposes; however, this standard does not extend to commercial entities, which the case aims to settle.

Under the Copyright, Designs and Patents Act 1988 the High Court has the capability to issue an injunction against a service provider, provided that the "...service provider has actual knowledge of another person using their service to infringe copyright". What this has been interpreted in Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc to encompass is true knowledge of one or more infringers using the provided network to do so, and the more detail of knowledge or facts given to the service provider (notices etc.) the less protection the provision offers to them. One could argue that a lack of password protection would not in itself give rise to an actual knowledge of possible infringement, as users, even if filtered through via password protection, could still abuse the network without the knowledge of its provider.

Whether Mr. McFadden was brazenly aware of the infringing acts being committed on his network is unknown to this writer, and he awaits the decision of the ECJ with some interest. Voices have been raised in the protection of open networks and access thereto by entities such as the Electronic Frontier Foundation, and one must agree with them to a certain extent. The 'locking down' of networks does provide a more cumbersome regime through which information and the Internet can be accessed, but one still does have to keep in mind the protection of legitimate rights within that space. What the ECJ decides will undoubtedly have ramifications on our WiFi networks, but one can imagine they'll only remain a login away.

Source: JDSupra

The EU Single Digital Market - 16 Initiatives to Success?

As diligent readers of this blog have probably noted, the last 12 months have been vary favorable to those who are inclined to law reforms, especially in the field of copyright. This writer, for one, enjoys the rapid changes being introduced, and has awaited the next step of the reform process, which was leaked not long ago; the European Union Single Digital Market strategy. The strategy encompasses much more than just IP within it in attempts to combat the issues plaguing the internal digital market, and this post shall endeavor to touch upon the most relevant parts, divided by the "pillars" they're under.

Pillar I - Better Access For Consumers and Businesses to Online Goods and Services Across Europe

Along with the introduction of changes to e-commerce regulation, delivery systems and VAT within the European Digital Economy, the strategy also proposes some key changes into the landscape in which copyright resides.

Geo-blocking has, and will be, a contentious issue, especially in this global world where not all consumers are created equal in their access to media. The strategy states that: "[b]y limiting consumer opportunities and choice, geo-blocking is a significant cause of consumer dissatisfaction and of fragmentation of the Internal Market", and while arguably true to a certain extent, the statement does not reflect the commercial nature of geo-blocking. Often it is used to ensure either the locking in of content to regions, or to secure proper negotiations for wider, more lucrative licensing agreements (whether you agree with this notion or not is an entirely different matter). The strategy discusses 'unjustified' geo-blocking, but as to what amounts to an unjustified use remains unclear. Nevertheless the strategy proposes that "[a]ction could include targeted change to the e-Commerce framework and the framework set out by Article 20 of the Services Directive". Arguably a relaxing of geo-blocking within the EU would harmonize the market, especially with the emergence of prominent internet based media services; however, it still leaves the abuse of cheaper pricing (or conversely, the pricing out of poorer regions) in the market in the light of this potential change.

The first pillar also includes a proposal to allow for a more fluid, easier access to content within the EU in terms of its legislative base. The strategy notes that "[b]arriers to cross-border access to copyright-protected content services and their portability are still common, particularly for audiovisual programmes. As regards portability, when consumers cross an internal EU border they are often prevented, on grounds of copyright, from using the content services (e.g. video services) which they have acquired in their home country". This can be argued to relate to the point above quite heavily, with copyright ensuring the effective enforcement of geo-blocking, or any curtailment thereof. Some issues to persist, such as the inaccessibility to content for which you have rightfully paid for outside of some jurisdictions, as has been noted in the strategy as well, but these issues, at least in this writer's anecdotal experience, don't seem to be too prevalent.

The strategy also discusses a lack of clarity within copyright in the EU, but does not state as to what is unclear and how it is proposed to be remedied. Ending the first pillar, it is suggested that "...the Commission will propose solutions which maximise the offers available to users and open up new opportunities for content creators, while preserving the financing of EU media and innovative content". While this is all well and good, no actual legislative measures are proposed, and the aim of the strategy in relation to copyright seems foggy at best.

The first pillar clearly envisions a freer, more affordable digital market within the EU, but omits the actual regulatory structures, or changes thereto, leaving the strategy with more questions than have been answered.

Pillar II - Creating the Right Conditions for Digital Networks and Services to Flourish

The second pillar builds on the first, with the proposal of a more robust, free and functional network, with basic rights and the assurance of content enforcement, especially in relation to third party operators such as ISPs. After discussions on the introduction of wider rules for telecoms, and the potential expansion of the Audiovisual Media Services Directive, the strategy moved onto discussions on improving the online environment.

Some pillars hold more than others

The strategy brings up the restriction of certain players in the online world, such as search engines (Google, anyone?) and media services. Issues raised "...include a lack of transparency as to how they use the information they acquire, their strong bargaining power compared to that of their clients, which may be reflected in their terms and conditions (particularly for SMEs), promotion of their own services to the disadvantage of competitors, and non-transparent pricing policies, or restrictions on pricing and sale conditions". In this regard one has to agree to a certain extent, as e-commerce and other online giants become even bigger, their monopolies become harder to detect, and has the ability to curtail competition. How and when these issues would be tackled was also left out of the strategy, allowing for nothing but mere speculation at this point.

Illegal content online has been, and will be, a contentious issue, and the strategy does not leave it out either. Discrepancies with online enforcement of the removal of infringing content, and the blocking of such sources, can be said to be a thorn on the EU's side, and as the strategy points out: "[d]ifferences in national practices can impede enforcement (with a detrimental effect on the fight against online crime) and undermine confidence in the online world". For the first time the strategy does bring up concrete steps as to how to deal with the issue of infringing content online: "In tandem with its assessment of online platforms, the Commission will analyse the need for new measures to tackle illegal content on the Internet, with due regard to their impact on the fundamental right to freedom of expression and information, such as rigorous procedures for removing illegal content while avoiding the take down of legal content, and whether to require intermediaries to exercise greater responsibility and due diligence in the way they manage their networks and systems - a duty of care". Again, although more clear in its intent, the measures proposed have been left quite convoluted, a 'duty of care' on ISPs (and other third parties, possibly) could become too onerous, especially with more and more infringing content popping up online daily. With a sufficient allowance for flexibility, yet robustness, a duty of care system, or something akin or related to, could allow for the better enforcement of intellectual property rights online, while still allowing for its dissemination, sharing and other uses that fall within the scope of any exceptions.

All in all the EU digital environment, at least prima facie, would seem to have a bright future, but with a substantially sized caveat included. How intermediaries are treated in this new environment, with the expansion of rules on telecoms, could hinder the sharing and dissemination of content online, as has been seen with the DMCA in the US, if left too broad. This means any legislative initiatives would have to take both interests, being end-users' and commercial interests, into account when moving forward with any new legislative frameworks.

Pillar III - Maximising the Growth Potential of our European Digital Economy

Finally, the third pillar aims to add the last piece to the puzzle built on the two other pillars by creating more standardized platforms and technologies within the EU, and the improvement of digital skills and e-governance in the internal market. While largely irrelevant to a IP-heavy discussion, they still seem to add to the strategy in allowing for a more developed online network where these rules can operate. This article won't delve into the third pillar much, as it mostly does not relate directly to IP, but it is worth a read for anyone interested in the more practical aspects of the digital market.

Conclusion

While this writer can air nothing but his disappointment in the content of the strategy above, he is left to wonder why the proposal lacks so much in substance when the earlier leak seemed to offer more concrete terms of operation and improvement. With so much uncertainty in its future application, the Digital Single Market leaves with a whimper, and it remains to be seen how its final incarnation will impact on the EU and its legal (and practical) framework. The removal of barriers to enjoyment, and the possible harmonization of pricing and/or licensing in the EU seems, at least from a very superficial interpretation, a very welcomed change, how and when this would be done is still a big question as well.

As said, the strategy left much to be desired, but this writer remains hopeful.

Framed Questions - ECJ Takes on Content Framing

As social media has changed how we interact with one another, it also has profoundly changed the culture and environment where copyright (and other intellectual property rights) reside. Videos, pictures and other content can very easily go 'viral', especially through sharing via Facebook, Twitter and other websites, even sans the original source of the content. This aggressive sharing and consumption of content can clearly yield huge benefits, both monetary and other positive outcomes; however it presents a much darker side to the sharing of this content, more specifically the copying and distribution of infringing content. Whether it be re-hosting a video originally on YouTube, or copying and watermarking other people's popular images, the Internet is full of opportunistic people rearing and ready to cash in on the next 'viral' hit. Not all sharing is bad, and often websites can host content and rightfully attribute the content to its source, or just link directly to it - which presents a question: can you share copyrighted content, especially through what is called 'framing' (placing someone else's content within the confides of your own website, but not directly hosting the content), or are you infringing on the rights through linking to this content and placing in within your own website?

The case, which endeavored to answer this question, was BestWater International GmbH v Michael Mebes (judgment only available in German or French). BestWater International are a company in the business in making and selling water filtration systems, and in an effort to boost their sales, made a 2-minute promotional video and uploaded it to YouTube, undoubtedly attempting to reach the droves of water filtration enthusiasts using the site. Michael Mebes and his co-defendant Stefan Potsch are independent agents for BestWater's competitor, who embedded a video link to BestWater's promotional video on YouTube (which they themselves uploaded onto the service). BestWater subsequently sued the pair for copyright infringement, and the case finally culminated in the European Court of Justice late last year. In the absence of a judgment in English (which this writer was waiting for) the information conveyed in this post has been parsed from several sources; however hopefully represents an accurate reading of the case.

The question posed to the Court was simple: "Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website... constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC, even where that other person’s work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?" In a lot of ways the case is similar to one discussed on this very blog on an earlier note; Svensson v Retriever. Even so, Svensson merely discussed the distribution of content, which is freely available on another website, when BestWater's focus is on framing that content within your own site, arguably presenting it, in a roundabout way, as your own. 

One should always be careful when framing things

Thinking back to Svensson, the decision in the case established, quite firmly, that if a work is communicated to the public, and is freely available, distributing that content without actually making new copies of it, does not constitute a communication to a new public and infringe copyright. Unceremoniously the Court saw that "[t]he embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [Directive 2011/29/EC] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication". 

What is key in the BestWater decision, much like in Svensson, is the authorization of the party who communicates the original work to the public. If the content is beyond the reach of most Internet users, framing the content clearly infringes copyright; however, should the party provide the content for all Internet users (i.e. freely available through services like YouTube), it will not infringe copyright. Should a third-party, without the consent of the copyright holder, upload a video to YouTube, and then promptly frame it on their website, they will be infringing copyright within the meaning of BestWater and Directive 2001/29/EC.

The two decision reflect a clear need for change in attitudes of copyright holders when posting content online. Framing applies just as well to images and sound files as it does to video, potentially causing issues to those who are not careful in their communication of their copyrighted content. This writer, for one, believes this approach is correct, even with the hazards it potentially presents. Should you choose to share content with very little regard to its restrictions, you choose to share your content with more people that you might have intended to, and for users to be punished for your mistake seems highly inequitable. Nevertheless, individuals and companies should be more careful in their content sharing, especially when considering the openness of the Internet, and the potential benefits more open sharing can give you.

Source: IPKat

Names and IP Law - Do You Have a Right to Use Your Name?

Your name is a part of who you are, your own identity, and for a lot of people, a very important indicator of their history and origin. As such, a name carries immense weight and importance to some, even if it is 'generic' such as Smith or Johnson. Often it is simply easy, and identifiable, to start trading under your own name when you start a business, e.g. Ihalainen LLP (I'm a dreamer, what can I say), but should your name conflict with a well-known brand, such as McDonald's, the use of your own name can be tricky. This begs the question: can you use your own name when doing business, or should you refrain from it outright, especially if a more well-known brand uses that very same name in its business?

In the UK a person can use their own name in conjunction with their business under the Trade Marks Act 1994, through the implementation of EU Directive 2008/95/EC, so far as the use "...is in accordance with honest practices in industrial or commercial matters". On the face of it this entails the use of your name, such as Ihalainen LLP, even if there is an existing Ihalainen Ltd with registered trademarks over the name. The name, however, does have to be distinctive in its use as a trademark, irrespective of its unique characteristics (i.e. Ihalainen clearly is more unique in an Anglo setting vis-a-vis a Finnish setting). Surprisingly, at least from a prima facie assessment, the provision applies equally to corporate names, not just natural persons' names.

People, and businesses, can be hurt by mistaken names

One still has to remember that the defense only applies to a bona fide use of one's name in their business, and adopting a name that clearly infringes a well-established and famous mark will not be overlooked only because the person has the very same name. As was stated by Lord Justice Gibson in Asprey & Garrard Ltd v WRA (Guns) Ltd: "...the defence has never been held to apply to names of new companies as otherwise a route to piracy would be obvious". Clearly one can appreciate that the position of the Court of Appeal in the case is correct; however should an individual trade under their own name, at the same time or prior, as one that is well-known, the defense clearly applies, as they have not sought to use the name to illegitimately gain from its notoriety. Even if the use of the name is honest from a subjective point of view, the use might still not fall under the defense, as was elaborated by Lord Justice Gibson further in the case: "I would add that however honest his subjective intentions may be, any use of his own name which amounts to passing off cannot be in accordance with honest practice in industrial or commercial matters".

A similar provision exists in the United States under 15 USC section 1115, through which a defense is given if the "...use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, of the party’s individual name in his own business, or of the individual name of anyone in privity with such party, or of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin". This affords someone protection over the use of their own name in business, although with a similar caveat as to its proper and bona fide use. This view is generally accepted within the common law, with similar provisions existing under the Australian Trade Marks Act 1995 and the Canadian Trade-Marks Act.

The defense described above does not detract from the contestable requirements of registering a trademark, and as said above, a name still has to fulfill all requirements for a valid trademark. Should the name used not be distinctive enough it clearly will not merit protection, and potentially will not be registrable from the outset.

Source: JDSupra

Ties to Free Content - European Court of Justice Rules on Hyperlinks

Hyperlinking is arguably one of the most important developments in the evolution of the Internet since being introduced by Tim Berners-Lee in 1989, creating what he would call the World Wide Web. Through this content within the newfangled Internet could be connected more fluidly than in its directory system prior to hyperlinking's integration. Arguably it has made the Internet better, easier to use, and more convenient. Although linking in its many forms has been an issue of some dispute in the legal world, one could have imagined it has mostly seen its heyday in the courts. In a rather interesting turn of events, a new case was recently decided by the European Court of Justice based on a case in Sweden, addressing this very topic earlier this year.

The case in question was Svensson v Retriever Sverige AB, concerning a number of Swedish journalists who regularly posted their journalistic content on the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. The defendant in the case, Retriever, offered a service to its clients by gathering and sending them lists of articles on other websites in clickable link form. Although the articles in question were freely available on the newspaper's website for all to view the journalists argued that when the clients were provided the lists of articles, it was not clear to them that these links would lead to content on other websites; in other words, could be lead to believe Retriever provided them with this content. The journalists then sued Retriever for copyright infringement, arguing they had made use of their articles without prior authorization and sought compensation. The case was rejected by the Stockholm District Court (Stockholms tingsrätt) at first instance, and on appeal to the Svea Court of Appeal (Svea hovrätt) deferred the question to the ECJ for further assistance.

What the journalists argued was that Retriever had illegally made their content available to the public under the Swedish Act on Copyright in Literary and Artistic Works (a copy in Swedish can be found here). The ECJ's concern was how this act would be interpreted under Directive 2001/29/EC, more specifically Article 3(1).

The questions posed to the ECJ were (1) whether the provision of a link to another by a third-party, without the authorization of the copyright holder, would constitute a communication to the public under the Directive; (2) would this assessment be affected if the content is freely available to all on the website to which the link refers to; (3) should a distinction be made between the link showcasing the content on its original website, or if the content is shown in such a way to create the impression that it is appearing on the actual website when it is not; and (4) can a Member State give more protection to copyright holders by enabling communication to the public to cover a wider range of acts than is provided under Article 3.

The Swedish courts are not the only Swedes potentially blocking things

Through previous considerations in ITV Broadcasting and Others the ECJ saw that, for there to be a communication to the public under Article 3(1), there has to be "... an ‘act of communication’ of a work and the communication of that work to a ‘public’". The assessment of whether there has been an act of communication has to be done broadly, and with respect to Article 3(1) more directly: "..it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity". Under the ECJ's judgment the mere provision of links to content would be an act of communication under the Directive, as the content is made readily available to a public through Retriever's service. Whether this communication is done to a public, the ECJ has deemed that "...by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons". Arguably Retrieve's service does offer content to a large, indeterminate number of people, and falls under the Article.

Although the ECJ saw that Retriever's service would therefore be under the definition of Article 3(1), the matter was not that straightforward. The communication has to be done to a 'new' public, one which the copyright holders would not have foreseen the content being communicated to when they authorized that content's communication. As the journalists' articles were already freely available potentially to every Internet user, it would not be possible for them to have not anticipated Retriever's users to not be able to access that content. As such, in the ECJ's decision, no authorization is required under Article 3(1), and Retriever would not infringe the journalists' rights in communicating their works. This would be the same even if the content is displayed as to imply its existence on the original website when it is not, as the content is still very much available to all. The ECJ did specify that should the content be made only available to subscribed users, and the service, such as Retriever's, would circumvent that pay-wall, it would clearly be beyond the anticipation of the copyright holders when authorizing the communication of their works.

The ECJ also rejected the potential of allowing Member States to widen their range of what can be seen as a communication to the public, as it would create uncertainty within the Union as to what would entail communication to the public if every Member State would have a varying degree of protection.

The Svensson decision was very important in how the Internet would function on a much larger scale, and had the potential to restrict its operation within the European Union. If hyperlinks were to have been deemed to infringe copyright in the event that they link to freely available content, it would be much harder for the end-user to find content relevant to their interests or new content altogether, as external links would infringe copyright and be a liability for third-parties. This writer for one is glad the decision allowed for the linking to outside content, as this very blog does so regularly, and would prefer not to be in hot water as a result.

Source: JDSupra