Canadian Copyright Modernisation Act due to be passed minus "notice-and-notice" provisions

According to a Privy Council document, Canadian Bill C-11 (known as the Copyright Modernisation Act) is due to be enacted on 7 November 2012. The Copyright Modernisation Act (see the summary here) will amend the existing Copyright Act to:

"(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;

(b) clarify Internet service providers' liability and make the enabling of online copyright infringement itself an infringement of copyright;

(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;

(d) allow educators and students to make greater use of copyright material;

(e) permit certain uses of copyright material by consumers;

(f) give photographers the same rights as other creators;

(g) ensure that it remains technologically neutral; and

(h) mandate its review by Parliament every five years."

Most of the bill will come into force next week, including fair dealing reform, new consumer exceptions, caps on statutory damages for non-commercial infringement, a user generated content provision, and digital lock rules, however it has been noted that the much debated "notice-and-notice" rules for ISPs that were intended to be enacted at the same time as the rest of the bill will be delayed.

The proposed "notice-and-notice" regime will require ISPs to forward any notice of infringement they receive from copyright owners to the subscriber in question. Canadians are friendly people, and many of them were concerned that a stronger "notice-and-takedown" regime (favoured by so many other countries) requiring ISPs to block access to material upon receipt of a notice from a rights holder alleging infringement, "could create incentives for ISPs to remove content without warning or evidence of actual infringement, which can potentially lead to a stifling of free expression" (see here).

Others however have said that a "notice-and-takedown" system "is required to effectively deal with operators of pirate sites that infringe content on a substantial scale and to deal promptly with time-sensitive postings." The Industry Canada website argues that a "notice and takedown" regime would be ineffective in preventing peer-to-peer file sharing, as it "typically applies only to material posted on websites. It is not well suited to files shared on peer-to-peer networks, the most prevalent source of infringing material, since the files are actually located on the computers of the persons engaged in sharing."

Support has also been expressed for some form of graduated response regime (such as a "three-strikes" approach).

Despite these concerns the Canadian government settled on the "notice-and-notice" approach, which is favoured by ISPs, educational institutions and consumer groups and which is already being voluntarily used. The Canadian government has said that: "This approach to addressing online infringement is unique to Canada. It provides copyright owners with the tools to enforce their rights while respecting the interests and freedoms of users."

Implementation of these provisions has however been the subject of unseen lobbying over issues such as the fees for processing notices and the retention of subscriber information. So despite everything, the uniquely Canadian "notice-and-notice" provisions will not come into force next week with the rest of the bill.

In case you've missed it: Orphan Works Directive is reality

Readers of this Blog who also follow the IPKat will be already aware that the Orphan Works Directive (on which see earlier 1709 Blog posts here, here, here, here, here, here ...) has just been published on the Official Journal of the European Union, thus becoming Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. The Directive entered into force on the day following its publication.

If you are wondering what this blogger thinks of the final text, click here. 

What will happen next? As required by Article 9, Member States shall transpose the Directive into national laws by 29 October 2014. Almost in parallel with this, not only shall the Commission keep under constant review the development of rights information sources [eg ARROW and VIAF], but by 29 October 2015 (and at annual intervals thereafter) it shall submit a report concerning the possible inclusion in the scope of application of the Directive of publishers and of works or other protected subject-matter not currently included in its scope, and in particular stand-alone photographs and other images.

Second hand books: US Supreme Court considers the first sale doctrine

Today the US Supreme Court hears the opening arguments in Kirtsaeng v. John Wiley & Sons Inc., labelled as one of the most important copyright cases of the decade. The case is about whether works manufactured outside the US can be resold in the US without the permission of the copyright owner.



Freefoto.com

The case will deal with two apparently conflicting provisions in the US Copyright Act. Section 602(a)(1) says that (without permission) importation into the US of copies of a protected work is an infringement of the exclusive right to distribute copies under section 106. This protects the copyright owner's importation right.

In practice, this does not prevent parallel imports: indeed the grey market in the US was valued by Deloitte at USD 63 billion in 2009. Importers rely on section 109(a) of the US Copyright Act which says that anyone who buys a work which is "lawfully made under this title" (meaning under the Copyright Act), may re-sell that work without the permission of the copyright holder. This is the first sale doctrine, which is similar to the principle of exhaustion in Europe, both of which aim to allow a second hand market for goods.

In this case Supap Kirtsaeng, originally from Thailand, realised that he could import textbooks from Thailand and sell them in the US, on eBay, at a profit. John Wiley & Sons a textbook publisher noticed that Kirtsaeng was re-selling some of its textbooks. These were editions intended for distribution outside the US. They were of slightly lower quality and were of course sold at a much lower price, enabling Kirtsaeng to make a profit of USD 37,000.

Wiley sued Kirtsaeng for copyright infringement, and the judge at first instance barred Kirtsaeng from relying on the first sale doctrine as the books were manufactured outside the US. The first instance judge found in Wiley's favour and awarded damages of USD 600,000. This was upheld on appeal: the 2nd US Circuit Court of Appeals held that the first sale doctrine was inapplicable because the wording "lawfully made under this title" at section 109(a) referred only to copies manufactured in the US. The case now proceeds to the Supreme Court.

This is not the first time that this issue has reached the Supreme Court: in 2010, it upheld a 9th Circuit decision that the first sale doctrine did not apply to works manufactured outside the US (in relation to Costco's sale of grey market Omega brand watches). Unhelpfully however there was no opinion as the decision was the result of a 4-4 tie.

This time around Kirtsaeng's legal team is arguing that if the appeal is dismissed by the Supreme Court any businesses which rely on resales (such as eBay), as well as second hand cars (containing copyright protected software), second hand bookshops and DVD rentals, and also libraries and museums which acquire works from around the world, will be affected. The Library Copyright Alliance (LCA) filed an amicus curiae brief with the US Supreme Court in support of Kirtsaeng.

Wiley argues however that the court does not need to address what happens to the first sale doctrine in the event of an authorised importation and that it should focus on unauthorised import and sale.

Can you be sued over a properly acknowledged literary quote?

Well, the answer seems to be 'yes'.

As reported by The Hollywood Reporter, this is indeed what has happened to Sony, which has been sued (along with a group of unnamed film exhibitors) by the owners of the rights to the literary works of The Sound and the Fury author, William Faulkner. 

The lawsuit, which was filed on 25 October last in the US District Court for the Northern District of Mississippi, concerns unauthorised use of a quote from Faulkner's Requiem for a Nun in Woody Allen's 2011 film Midnight in Paris. 

As cinema-loving readers will know, the film follows the adventures of nostalgic Hollywood screenwriter Gil Pender (Owen Wilson) who, while on holiday in Paris with his fiancée and her family, finds himself going back to the 1920s every day at midnight, thus meeting the great artistic characters of that time, including Ernest Hemingway, Francis Scott Fitzgerald and his wife Zelda, Picasso, Dalì, and Gertrude Stein.

In describing his experiences, Gil speaks the following lines: "The past is not dead. Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

"Copyright is never dead.
Especially if it's not even past."

Apparently neither Sony nor its co-defendants had sought prior permission to use Faulkner's original quote ("The past is never dead. It's not even past."), so now the Faulkner estate is seeking relief (as well as damages) under the Copyright Act and the Lanham Act. The plaintiff claims that use of both the quote and Faulkner's name in the film "is likely to cause confusion, to cause mistake, and/or to deceive the [film's] viewers as to a perceived affilitation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand", and also "to cause confusion, to cause mistake, and/or to deceive the [film's] viewers as to the origin, sponsorship, or approval of Sony's goods, services or commercial activity by William Faulkner and/or his written works."

As observed by Courthouse News Service (which usually refrains from commenting on litigation in the story in which the lawsuit is reported) "at risk of offending the shade, or estate, of Charles Dickens: This is a far, far weirder thing than Sony has ever done." 

A Sony spokesperson said: “This is a frivolous lawsuit and we are confident we will prevail in defending it. There is no question this brief reference (10 words) to a quote from a public speech Faulkner gave constitutes fair use and any claim to the contrary is without merit."

Also this blogger believes that, in relation to the copyright infringement claim, use of Faulkner's quote is quite a clear case of fair use, also because, contrary to what seems now the position under EU copyright law, the actual length of the protected extract taken has still some relevance under US law. However, in copyright-times like these you never know what is going to happen. What seems certain is that this is a case worth fighting, as also suggested by Techdirt.

US Copyright Alert System to be rolled out in coming weeks

The Center for Copyright Information (CCI) recently revealed its plan to roll out a Copyright Alert System (CAS) in coming weeks.

We have previously reported on the much delayed "six-strike" or "graduated response" system agreed between the major US ISPs (AT&T, Cablevision, Comcast, Time Warner Cable and Verizon) and the music and film industries, which is intended discourage consumers from illegally downloading copyright-protected material (see Eleonora's posts here and here, and Ben's post here).

The CCI has now announced that, after much hard work to ensure that "the program works well for consumers in every way, to ensure accuracy, protect customer privacy and offer resources that answer consumers' questions", the CAS will begin in the coming weeks.

The CCI explains that the CAS is a system which will enable ISPs to send notices from rightsholders to subscribers alleging copyright infringement over peer-to-peer networks. Users who are alleged to infringe copyright will be sent the following notices:

1. Educational alerts.
2. Acknowledgment alerts requiring the user to confirm receipt of the notices to their ISP.
3. If the alleged infringing activity continues, the user will receive enhanced alerts that contain "mitigation measures".  These mitigation measures will vary by ISP and range from requiring the user to review educational materials to a temporary slow-down of internet access speed.

Further detail on the alerts can be found here. 

The CCI is at pains to point out that termination of  consumers' internet service is not a part of any ISP's CAS program. The CCI clarifies that "contrary to many erroneous reports, this is not a "six-strikes-and-you’re-out" system that would result in termination. There's no "strikeout" in this program."

Rather, the alerts are designed to make consumers aware of activity that has occurred on their internet accounts, to educate them on how they can prevent such activity from happening again (the CCI suggests by securing home wireless networks or removing peer-to-peer software) and provide information about how to access digital content legally.  

This is an educational service catering to consumers to whom "it is not always clear on the Web what is legal and what is not". The CAS intends to explain the law and help consumers find legitimate services to access the content they want.

Further the CAS will enable consumers to seek review of alerts they believe were sent in error. An independent review process will be operated by the American Arbitration Association (AAA) which is "a highly respected, neutral organization with deep experience in administering similar programs". The review system "will allow consumers to ask a trained, impartial professional at AAA to review alerts fairly and confidentially, while honoring their expectation of privacy." What the CCI doesn't say in its latest blog post is that consumers will have to pay US$35 to the CAS to initiate a review procedure, which will be refunded if the consumer wins the review.

The CCI appears to have gone to great lengths to ensure that the CAS is consumer friendly and not over the top. Despite this consumers are already wary, and many have picked up on the fee payable to the CAS in the case of review procedures. It will be interesting to see the impact that the CAS will have in practice. Without any ultimate penalty (other than throttling users' internet services) and bearing in mind that many users are very tech savvy (and are already considering VPNs as a work around),does the CAS have the necessary teeth to make an impact on illegal file sharing in the US?

The "Dilemma" of Television Format Protection in France

A recent ruling by the Paris Court of Appeals (12 September 2012) , while not directly touching on copyright law, may well be of interest to readers.

Endemol, the producers of well-known reality television shows "Loft Story" and "Secret Story" (both derived from "Big Brother") took issue with rival producer ALJ Productions' reality show called "Dilemme" (dilemma), claiming that its production constitued unfair competition and free-riding.

The legal grounds were thus rooted in the general tort of negligence (Section 1382 et seq. Civil Code) and not copyright.  The French legal system has a highly developed and sophisticated law of unfair competition ("concurrence déloyale") and free-riding ("parasitsime").

The general rule is that copying something that is not protected by a specific intellectual property right (such as copyright) is not, in and of itself, unlawful.  However, the circumstances of the (lawful) copying may result in liability.  In essence, these circumstances can take one of two forms:  either the copying can result in a likelihood of confusion (classic unfair competition) or the copying can be said to constitue an attempt to free-ride on the coattails of another (parasitical behaviour).

In the case giving rise to the decision, Endemol was of the view that the defendant's production took elements of its shows that were sufficient to create a likelihood of confusion on the part of the TV viewer.  Among the elements it highlighted were the following:  the fact that the candidates were enclosed and isolated in a house, were constantly filmed, were subject to a system of elimination, the decor and layout of the house, the method of nominating and voting for or against elimination of a given candidate, the casting of specific types of candidates (e.g., the jock and the bimbo).

The Court was having none of it.  In its view

"...the similarities noted by Endemol Productions[...] between the formats of "Loft Story" and "Secret Story" are intrinsically related to the genre of "enclosure" relaity TV and do no more than use the standard codes in this area without creating any particular identification with the formats claimed by [Endemol]. 

Furthermore, while it is true that the well-foundedness of an action in unfair competition based on the similarity of competing goods or services must be assessed in light of resemblances, these must be examined having due regard for the overall impression given to the public, with only those similarities relating to identifying elements of the competing product being taken into account..."

In other words, in assessing whether a likelihood of confusion exists, a court must look only to those elements that indentify or distinguish the source.  This makes perfect sense and is a logical consequence of the fact that the legal criterion is "likelihood of confusion", which obviously pre-supposes that the source material can be uniquely identified or distinguished.

The Court concludes:

"...the similarities advanced by [Endemol], in addition ot the fact that they are inherent to the genre of programmes at issue [...], cannot, having due regard for the specific overall impression created by "Dilemme" as compared to "Loft Story" and "Secret Story", be said to create a likelihood of confusion on the part of television viewers with respect to the format's origin, which they will not associate with Endemol."

Finally, as regards the separate claim for parasitical conduct, it was rejected both because Endemol failed to adduce evidence of its "intellectual and financial efforts" and because the defendant did provide evidence of its substantial investment in "Dilemme".

A thesis to read, a thesis to examine: what do you think?

Do you want a newly
defended PhD thesis to be
delivered to you?

Anyone fancying some EU copyright discussion?   As readers of The 1709 Blog will probably know, in the last few years I have been engaged in doctoral research at the European University Institute, whose beautiful premises are located in the idyllic hills surrounding Florence. Thanks to such a congenial environment, I could explore what perhaps appears now as one of the least placid areas of intellectual property: copyright. In particular, I devoted my efforts to analysing the debate surrounding further (full?) copyright harmonisation at the EU level, in parallel with ever-growing activism on the side of the Court of Justice of the European Union. In the very last few years, this has in fact provided the de facto harmonisation of basic copyright principles, including originality.

Now that I have produced and defended my "own intellectual creation", which carries the title Judge-Made EU Copyright Harmonisation. The Case of Originality (you can find further details here), I would be delighted to make it available to any serious scholar or practitioner who is currently working in this field, so to engage in discussion with and receive comments/inputs/feedback from them. If you are one of those lucky and enthusiastic EU copyright folks, you can send an email to eleonorarosati{at}gmail.com. Many thanks in advance!

Not every PhD candidate
is sleepless though

How to examine PhDs?   Still on the topic of PhD, this morning Jeremy posted his thoughts on possible methodologies for conducting PhD examinations that are fair and effective, and such as to allow PhD candidates to benefit as fully as possible from examiners' feedback. The 1709 Blog thinks that this topic has not yet been addressed as thoroughly as it deserves, despite being something which makes PhD examiners often upset and PhD candidates invariably sleepless. Therefore, it warmly encourages its readers (either PhD students, examiners or simple fans of methodological issues) to share their thoughts on such an important issue. 

Brazilian newspapers opt out of Google News

The ongoing news aggregator v publisher battle has raised its head in one of the world's fastest growing economies: Brazil. Further to Eleonora's post last Thursday reporting on Google in France, now 154 members of the Brazilian National Association of Newspapers (ANJ) have opted out of the Google News service.

Last year the ANJ recommended to its members that they opt out of Google News as they said it resulted in a drop in traffic, and therefore advertising revenue, for publishers. 154 members, making up 90 percent of Brazil's total news circulation, have followed that recommendation and their sites will no longer be accessible via Google News.
 

The president of the ANJ, Carlos Fernando Lindenberg Neto, said that "Staying with Google News was not helping us grow our digital audiences. By providing the first few lines of our stories to internet users, the service reduces the chances that they will look at the entire story in our websites

Google's public policy director, Marcel Leonardi, defended Google's decision not to pay the publishers saying that Google sends four billion clicks to news sites each month.

Google will however still index all ANJ member sites, and The Fast Company reports that all Brazilian news sites will still be available on Google search.  The ANJ has confirmed however that their decision not to appear on Google News will affect general search results as Google's ranking takes into account whether a site appears in Google News or not. Ironically Google Search is the site that Google makes money from as it contains adverts whereas Google News does not. Perhaps if the Brazilian newspapers really wanted to show they were serious they would have taken their sites off all search engine sites that decline to pay them rather than limiting themselves to Google News.

Further, Lindenberg Neto has confirmed that by opting out the Brazilian publishers are losing traffic to their sites, saying that "Google News' presence in the Brazilian market is small. We believe [the loss of traffic] is an acceptable price to protect our content and brands."

As this blogger has acted for Meltwater in a similar battle between news aggregators and publishers in the UK she is clearly in favour of the news aggregators and search engines in this particular case. The public at large seems to have mixed thoughts, varying from wanting to make "freeloading" news aggregation sites hurt, to wondering whether the public will continue to read traditional newspapers when there are many news blogs and independent sites keen to be included on Google News.

The fight between Google and publishers in Brazil represents, to this blogger, yet another example of why copyright laws, as they stand, do not fit with the internet. A new law, distinct from copyright law and drafted with the internet in mind, could help to clear up these kinds of issues.

Incidentally, this blogger found all content for this blog by reading various different sources all found using Google News.

The Blind Ostrich Head In The Sand Protocol

Here are two questions for our esteemed readers, and if anyone is minded to respond, answers, on a postcard please, to our comments section on this Blog. 

Question one is this:

Is Kim 'Dotcom' Schmitz an anagram of 'Blind Zombie Ostrich'.

Why do I ask? Well, before move onto question two, we need to look at some background. Schmitz is the large framed MegaUpload boss currently living in New Zealand hoping to avoid extradition to the United States on copyright infringement charges (along with charges of money laundering). He is fighting the extradition.

Now Schmitz, and his business partner Mathias Ortmann, have been talking to Wired about their plans for a new file-transfer platform to replace MegaUpload. In a blinding flash of inspiration, the new file transfer platform is just called 'Mega' and here's the really 'clever' bit - it will include new technology that will automatically encrypt any file a user uploads to the system - and that user will be given a unique key code for each file uploaded, and only someone with that code will be able to access the content that has been stored on the Mega server. 

So - no one at Mega can see the file or its contents. Brilliant! Its a real 'mere conduit' - Mega really will just be the postman - they can't look at the files being transferred or swapped because they have all been locked in bomb proof boxes (provided by Mega of course) and only the users have the keys (errrm, provided by Mega).  Probably. Ortmann is of the learned opinion that the encryption will protect the Mega's business from any liability for copyright infringement, contributory or otherwise, because there is no way their platform could know what is stored and swapped on its service and (multi jurisdictional servers) and it would be entirely the liability of users if, say, they were swapping or distributing unlicensed music or movie files. Really? A real 'safe harbour' ? A bona fide DCMA "get out of jail free" card? 

So Question Two is this: Is the Blind Zombie Ostrich plan just the best business plan you have ever read? And does it defeat any qualms rights owners and the content industries might have about the service set up by Mssrs Dotcom and Ortmann?  Will it soar like a golden eagle? Or is it just another turkey? Or are we in cloud cloud cuckoo land (excuse the digi-pun)? Or is it al a bit bird brained? 

Over to you! And the answer to question one is NO!

More on MegaBox - another of Mr Dotcom's new ideas here

In other news, The Pirate Bay have announced that they will be moving their entire operation to the cloud, one can only presume to be free of those annoying raids by local law enforcement agencies who seize servers. Mega will have servers in at least two separate countries to maintain a continuity of service, in case one country's legal system goes 'completely berserk'. 

http://torrentfreak.com/new-megaupload-will-deflect-copyright-liability-and-become-raid-proof-121018/

My thanks to the ever wonderful CMU Daily for alerting me to this whacky wheeze.

Validity of sublicence upon lapse of principal licence

When I was perusing this summer’s judgments added to the online database of the Bundesgerichtshof (BGH), I came across two particularly interesting cases on copyright licences. In its Take Five and M2Trade decisions of 19 July 2012 (case references: I ZR 24/11 and I ZR 70/10 respectively), the BGH deliberated a hotly debated issue, namely what happens with a copyright sublicence if the principal licence lapses.

Since M2Trade concerned software and Take Five music, which I find more interesting than software, I will set out the facts of Take Five and refer to M2Trade only where there is a difference in legal reasoning:

The claimant is a music publisher that owns the worldwide copyrights in Paul Desmond’s musical composition “Take Five”. In 1960, it granted an exclusive licence in the work to a European music publisher for musical publishing in Europe. In 1961, the European music publisher granted an exclusive sublicence for the territories of Germany and Austria to the defendant’s legal predecessor, in exchange for recurrent royalty payments. In 1986, the claimant and the principal licensee agreed to terminate the publishing contract concerning the musical work “Take Five”, and that any sublicences would be terminated also.

Apparently, nothing happened for a long time afterwards, apart from the fact that the sublicensee directed its royalty payments to the copyright owner from the effective date of the termination agreement between the copyright owner and the principal licensee. Eventually, the copyright owner granted a new exclusive licence to another European music publisher, and a dispute over the German and Austrian rights ensued.

The BGH held that the sublicensee retained the German and Austrian publishing rights in spite of the termination of the principal licence. This is the next step up from the position the BGH developed in its Reifen Progressiv decision (26 March 2009, case reference: I ZR 153/06). In that case, the principal licensee had granted a non-exclusive licence to a sublicensee in exchange for a lump sum payment. The copyright owner successfully revoked the principal licence due to non-exercise in accordance with § 41 German Copyright Act (UrhG), but the sublicence was held to be valid.

In Take Five, BGH highlighted the principle of protecting the successor in title (“Sukzessionsschutz”) as an important part of intellectual property law (cf. § 33 UrhG). Therefore, the sublicensee’s interest in the continued validity of his licence will typically trump any competing interests of the copyright owner, even in case of an exclusive sublicence or a non-exclusive long-term licence.

In Take Five, United States law governed the contract between the claimant and the principal licensee and it was held that, either by implied contractual agreement or ipso iure, the claimant was entitled to cession of the principal licensee’s royalty claims against the sublicensee. Under German law, which governed M2Trade, the claim for royalty payments against the sublicensee automatically revests in the copyright owner when the principal licence lapses (in M2Trade, the court overruled its previous position established in Die Privatsekretärin, 15 April 1958, case reference: I ZR 31/57). It was held in both cases that this sufficiently takes the copyright owner’s interests into account and leaves no ground for declaring the sublicence invalid.

The reason why the principal licence lapsed (revocation due to non-exercise as in Reifen Progressiv, termination of contract by mutual agreement as in Take Five, termination of contract due to default of payment as in M2Trade, or any other reason) was also declared to be of small significance, if any.

Take Five and M2Trade have clarified the legal situation not only with regard to copyright sublicences, but to sublicences in other areas of intellectual property as well. Both judgments inform us that Senate X of the BGH, which is inter alia competent to decide patent cases, has no objections against the principle that sublicences will typically remain valid when the principal licence lapses.

"What constitutes evidence for copyright policy?" A Symposium

"What constitutes evidence for copyright policy?" Many are the times that this blogger has anguished over that question and now he is comforted to see that he is not the only who is doing so.  That very question forms the title of a Symposium within the ESRC Festival of Social Science 2012 which will take place on 8 November at the Centre for Intellectual Property Management (CIPPM), Bournemouth University in the Executive Business Centre. Organised by Martin Kretschmer and Ruth Towse, this event promises to ask some stern questions. According to the marketing material (with a few of these blogger's comments interspersed):

Copyright law is a topical and contentious area that affects a wide range of stakeholders with differing views on copyright policy [an understatement, perhaps?]. The need for evidence-based policy on copyright policy was emphasised in the Hargreaves Review and has led to several calls for evidence from stakeholders. The responses they provide to the Intellectual Property Office are varied in nature and quality; the IPO has responded by proposing guidelines on what constitutes acceptable evidence: 'that it be clear, verifiable and able to be peer-reviewed' (which itself is contested) [this definition of acceptable evidence shackles submissions to the historical, and makes it difficult to argue for reform proposals that, being innovative, are devoid of verifiable data -- and the assumption that past data is relevant to the future is one which is hard to accept in any field in which technologies and consumer behaviour keep rapidly evolving].

Besides being a matter of pressing public concern, copyright also attracts the interest of a broad range of social science disciplines each with its own rules of evidence. The emphasis on economic growth as the objective of copyright policy has shifted the need for evidence in the direction of economics but economic evidence is not always easily available. Nor it is the case that only quantitative evidence is regarded as valid [though the decision as to whether other than quantitative evidence is valid appears to be based on unclear and subjective criteria].

The idea is to have a structured but not too formal discussion of the differing perspectives held by policy-makers, creative industry representatives and academics of various backgrounds on the kind of evidence relevant to copyright policy. It will take the form of panel and round table discussions between policy-makers from the Intellectual Property Office (IPO) and Cabinet Office, stakeholders from the creative industries and academics from economics, sociology, law and cultural studies with expertise in copyright. The focus is on what evidence from these fields of study is relevant and useful to policy-makers and those seeking to put their case to them. The event is open to members of the public.

The event is free, the full programme details are here and all interested parties are welcome. However, there are a limited number of places.  If you would like to reserve a place, please email Dr Rebecca Edwards or give her a call on 01202 961206.

France to make Google pay for its News service?

Once things were easier
for news aggregators

Today Google received a good deal of attention in the press. Firstly, the stock dropped about 9% before trading was suspended, due to premature release of its quarterly earning (with profit declining 20% as total costs jumped and adversing prices continued to slide). Then, news spread (see BBC) that Google has sent a dramatic letter to several French ministerial offices, threatening to exclude French media sites from search results if France goes ahead with plans to make search engines pay for content.

Last month, following a similar initiative in Germany (see Iona's post here), leading French newspaper publishers had in fact called on Hollande's government to adopt a law to force internet search engines such as Google to pay for content. 

Guillaume Frappat, head of economic and digital affairs at SEPM (the French national magazine publishers society), said that German draft law stands as a demonstration that "there is really a problem between the content producers and the filter that is between the content and the viewers."

As pointed out on PC Advisor, SEPM is not the only organisation that wants to enhance discussion in this respect (and possibly obtain payment from Google and similar operations, too). The French union of the daily press (SPQN) is also interested, as news publishers might be hurt more than the magazine industry, explained Frappat, who added: "In general, publishers are interested in all the initiatives that put the debate back on the table ... But we don't want to break the balance between copyrights and innovation." 

Google is upset at possible French legislative initiative, which is viewed as "harmful to the Internet, Internet users and news websites that benefit from substantial traffic" sent to them by Google's search engine.

News aggregation in progress

With print advertising revenues rapidly and constantly declining in the newspaper industry everywhere (revenues are now less than half what they were in 2006), attempts to share some of the profits made by news aggregators seem unavoidable. However, the question whether Google infringes copyright by returning a search result has not been given a satisfactory answer yet.

The rulings delivered by some national courts in Europe (notably those of the Brussels Court of Appeal in Copiepresse - reported on the IPKat here -, and the Court of Appeal of England and Wales in Meltwater - on which see the latest comments here and here) and the decisions of the Court of Justice of the European Union in Infopaq I (IPKat report is available here) and Infopaq II (which has been commented here), do not look particularly friendly to news aggregators. 

However, the last word has not been said yet, as copyright enthusiasts are keenly awaiting the response of the UK Supreme Court in the Meltwater saga, which will appear sometime in 2013, probably at the same time when the decision in parallel proceedings in the US is published.

Football Dataco: the transmission theory may apply…

Today the CJEU held, in Football Dataco v Sportradar (Case C‑173/11), that the sui generis right* (the database right) could apply under the Database Directive in the country of transmission (the country where the database is re-utilised) if there is evidence that the person re-utilising that data intended to target the public in that country.

Essentially the CJEU is saying that "at least" the transmission theory applies (it does not  specifically address the emission theory), as long as there is evidence of an intention to target users in the country of transmission. This is a win for rightsholders as it prevents infringers from carefully selecting where to place their servers in the hope of avoiding the jurisdiction of the courts of other countries.

Whilst not a copyright case, the CJEU's decision is likely to be used as guidance as to where communication to the public occurs, therefore is also relevant to copyright infringement.

Background

The reference was made in proceedings between Football Dataco and others and Sportradar concerning the alleged infringement by Sportradar of Football Dataco's sui generis right in its football database.

Football Dataco collects football statistics as matches are in progress which it places in a database. It argued that the obtaining and/or verification of that data required substantial investment and that the compilation of the database involved considerable skill, effort, discretion and/or intellectual input.

Sportradar provides live online results and other statistics relating to these matches. Football Dataco claimed that Sportradar obtained this data by copying it from Football Dataco's database. Further, it argued that infringement took place not only in the country from which the data was sent by Sportradar but also in the country in which the users were located, in this case the UK.

Sportradar on the other hand said that its data was generated independently. It argued that in accordance with the emission theory, any act of infringement occurs only in the place from which the data is sent.

Referral to the CJEU

In April 2010 Football Dataco brought proceedings against Sportradar in the High Court for infringement by Sportradar of their sui generis right. Both parties appealed the High Court's decision. The Court of Appeal referred the following question to the CJEU:

"Where a party uploads data from a database protected by the sui generis right under Directive 96/9/EC … onto that party’s web server located in Member State A and in response to requests from a user in another Member State B the web server sends such data to the user’s computer so that the data is stored in the memory of that computer and displayed on its screen:

(a)      is the act of sending the data an act of "extraction" or "re-utilisation" by that party?

(b)      does any act of extraction and/or re-utilisation by that party occur
(i)      in A only,
(ii)      in B only; or
(iii) in both A and B?"

The CJEU's decision

The CJEU held that  Sportradar's actions constitute "re-utilisation" of data from Football Dataco's database. They said that while the question of whether Sportradar's actions constitute "re-utilisation" is separate from the question of where that act occurs, the sui generis right is protected by national legislation (albeit that such legislation must implement the Database Directive). Therefore the right is "limited in principle to the territory of that Member State, so that the person enjoying that protection can rely on it only against unauthorised acts of re-utilisation which take place in that territory".

The CJEU went on to say that the mere fact that a website is accessible in a particular country is not a sufficient basis for concluding that the operator of the website is performing an act of re-utilisation in that country. This must be the case because otherwise websites targeted at one country, but accessible in another, could be caught by the laws of that other country.

That said, the CJEU was clear that Sportradar's argument that an act of re-utilisation must in all circumstances be seen as located exclusively in the country from which the data is sent was not right.

The question is whether there is evidence of an intention on the part of the website owner to target users in a particular country.

In this instance the CJEU said that there could be such evidence as the data on Sportradar's server includes data relating to English football league matches; Sportradar granted right of access to its server to companies offering betting services to the public in the UK; and although it is a German company, Sportradar's website is in English. Whether this is sufficient evidence of an intention to target the public in the UK will be for the Court of Appeal to determine.

The CJEU concluded that the Database Directive should be interpreted as meaning that:

"the sending by one person, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer's memory and display on its screen, constitutes an act of 're-utilisation' of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess."

This clarification of where the sui generis right applies will have important consequences on the licensing of rights and on the look and feel of websites. The CJEU's comment that infringement occurs "at least" in the country of transmission where there is evidence that the infringer intended to target the public in that country implies that infringement may also occur in the country of emission. The CJEU's decision does not specifically address this point.

This decision may also be relevant to copyright, as it is helpful guidance on where communication to the public is likely to be deemed to have occurred.

 

*The sui generis right:

The definition of a database is set out at Article 1(2) of the Database Directive as meaning a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

The Database Right, or sui generis right, which is set out at Article 7 of the Database Directive, provides that where there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents of a database, the maker of that database shall have the right to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.

The Database Directive goes on to give the following definitions:

 "extraction" means the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form; and

"re-utilisation" means any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission

"Finally the Directive says that the repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted. "

This was implemented in the UK by the Copyright and Rights in Database Regulations 1997, which amended the Copyright Designs and Patents Act 1988.