Fordham Report 2014: Enforcement

The average Fordham copyright enthusiast
getting in the mood
for the enforcement session

The second copyright session of this afternoon at the 22nd Fordham IP Conference [again: do not forget that 6th May is the day of my Post-Fordham Copyright Catch-Up event] was moderated by David Carson (IFPI) and dealt with enforcement issues.

The first speaker was Jane C Ginsburg (Columbia Law School, New York), who examined ISP liability and website-blocking in the EU, following the recent decision of the Court of Justice of the European Union (CJEU) in Telekabel [here], as well as earlier rulings in Scarlet [here] and Netlog [here]. She recalled that Article 8(3) of the InfoSoc Directive must be balanced against Article 3 of the Enforcement Directive and Article 15 of the E-Commerce Directive, and also highlighted the relevance of Charter fundamental rights [see paras 45-47 of the Telekabel decision for some CJEU discussion on this very point] to enforcement discourse. Despite the ambiguities of the Telekabel decision, she concluded that filtering measures would not be compatible with EU law.

Then, Karen R Thorland (MPAA) discussed how different copyright regimes have designed and implemented notice and takedown systems, which she considered as just one means to help reduce infringement. There are statutory regimes, regimes set through case law, and others that are the result of voluntary agreements. Going into details, Thorland reviewed the information that notices must include; obligations of intermediaries upon receipt of notices; the consequences of sending improper notices; and effectiveness of the various systems in actually removing infringing material from the internet. She also mentioned the case of Italy as the first country in Europe to provide for an administrative website blocking procedure [earlier this week, AGCOM issued its first blocking order: see here]. 

#Quentincometoeurope as an enforcement
(or lack thereof) case study?

After that, it was the turn of Alexander Tsoutsanis (Institute for Information Law (IViR), University of Amsterdam, and DLA Piper) to discuss the recent Svensson decision (and prior to this, the opinions of the European Copyright Society and ALAI), and his paper Why copyright and linking can tango.

The presentations were followed by discussion with the audience and panelists Kristina Janušauskaitė (IFPI), Jan Bernd Nordemann (Boehmert & Boehmert, Berlin) and Silke von Lewinski (Max Planck Institute for Intellectual Property and Competition Law, Munich). 

Unexpectedly and without much explanation, at a certain point the IPKat #Quentincometoeurope campaign was displayed on the screen: #Fordhamgetspolitical?