1709 Blog: for all the copyright community

Wednesday, 30 April 2014

Copyright at Fordham, and an event reminder

Now that the Fordham extravaganza is (sadly) over and I am back in the UK after an overnight flight from New York to London that was probably shorter than the time spent travelling - alas, without films, not even this - from Heathrow Airport to King's Cross Station because of the Tube strike, it is time to spend a few words on what this invariably engaging conference said about our beloved copyright world.
  Starting with EU copyright, I was asked to provide an overview of the case law of the Court of Justice of the European Union (CJEU) over the past year. If have done my maths correctly, just in the period October 2013-April 2014 the CJEU issued 8 copyright rulings: 
  • 3 October 2013 - Case C-170/12 Pinckney [here and here];
  • 19 December 2013 - Case C-202/12 Innoweb [here. To be pedantic this case concerned the database right, but perhaps it may still be considered as part of the copyright galaxy]
  • 23 January 2014 - Case C-355/12 Nintendo [here and here]
  • 13 February 2014 - Case C-466/12 Svensson [herehere and here];  
  • 27 February 2014 - Case C-351/12 OSA [here]
  • 27 March 2014 - Case C-314/12 Telekabel [here]
  • 3 April 2014 - Case C-387/12 Hi Hotel [here];
  • 10 April 2014 - Case C-435/12 ACI Adam [here and here]
Back after a productive afternoon
in the 5th Avenue
or a copyright trip to the CJEU? 

In these cases, the CJEU touched upon several copyright issues, including:
  • Scope of copyright exlcusive rights (Svensson; OSA);
  • Exceptions and limitations (ACI Adam);
  • Enforcement, with regard to jurisdiction and damages (Pinckney; Hi Hotel) and remedies, notably measures (blocking injunctions) that may be imposed on internet service providers (Telekabel);
  • Circumvention of technological protection measures (Nintendo);
  • Database right and meta search engines (Innoweb);
  • National systems for collective management of copyright and related rights (OSA);
  • Relationship between EU copyright directives (Nintendo);
  • Room left for national initiatives in areas affected by EU copyright directives (Svensson; ACI Adam)

These cases addressed - but also raised - significant issues. However, what I found most striking of all these recent rulings is that there the CJEU quashed quite a few national laws. It did so in Svensson in relation to Swedish understanding of the communication/making available rights; it did so in OSA in relation to a specific non-InfoSoc copyright exception in Czech law; it did so in ACI Adam in relation to Dutch private copying exception.

This - I believe - prompts the following questions: Did Member States understand what EU law - notably the InfoSoc Directive - required them to do when transposing relevant directives into their national laws? Or - rather - is the CJEU currently committed in a (policy) plan to deepen harmonisation of national copyright systems?

Besides recent CJEU case law and policy action - or rather: lack thereof - at the Commission level, I also took part in a panel on orphan works and extended collective licensing, which was particularly timely, considering that:
  • The deadline for implementing the Orphan Works Directive is approaching (it is 29 October 2014);
  • The UK orphan works regulations are on track for adoption in October 2014 [here's my critical analysis of the UK move];
  • A gentle and
    subtle reminder
  • The US is also considering whether to legislate in the area of orphan works [especially following the Google Books ruling last year: has it overcome the very issue?] and extended collective licensing.  

Other copyright panels dealt with the relationship between fair use and freedom of expression [here]; copyright revision around the world [here]; enforcement [here]; and the forthcoming US Supreme Court decision in ABC v Aereo [here].

As 1709 Blog readers may know already, on 6 May [yes, that is next week!] I am holding an event in central London [hosted by Olswang LLP] to discuss all these issues with copyright enthusiasts interested in the implications of current and future copyright developments. The good news is that you may still register! Just click here

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