International comity ... or triple error?

Professor Blomqvist

The 1709 Blog has just received the following commentary by Professor Jørgen Blomqvist (University of Copenhagen) on a draft piece of EU legislation that requires no introduction – the proposed Directive on copyright in the Digital Single Market – and, more specifically, its provisions on out-of-commerce works.

Here’s the thoughtful analysis by Professor Blomqvist:

“The proposed European Directive on copyright in the Digital Single Market provides in its Article 7(5) that the provisions on use of out-of-commerce works by cultural heritage institutions “shall not apply to the works or other subject-matter of third country nationals except where points (a) and (b) of paragraph 4 apply”. The two said items set up points of attachment to identify the representative collective management organization from which licenses should be sought for the use, referred to in paragraph (1), ie the digitization, distribution, communication to the public or making available of out-of-commerce works or other subject matter permanently in the collection of a cultural heritage institution. Such use is proposed to be covered by an extended collective license (ECL) system. The points of attachment are, respectively, the country of first publication or first broadcast and the country of headquarters or habitual residence for producers.

It is rather unclear what is meant by saying that those items ‘apply’. The statement in item (26) of the Preamble, however, give reason to assume that it is supposed to mean that the ECL will only apply in cases where the work or other protected subject matter “belongs to” the European Union and does not enjoy protection under the otherwise applicable international treaties, such as Berne, Rome, TRIPS, WCT or WPPT.

Item (26) of the draft Directive Preamble further clarifies that this narrowing down of the scope of application of the ECL is motivated by “international comity”. In reality, it entails a decrease of the protection of works and other protected subject matter of EU origin. They will be subject to a licence scheme that does not apply to works and other such subject matter from third countries. This raises three interesting questions: is it necessary; is it correctly done; and it is permitted at all?

Is it necessary?

The first question may be discussed at length, and I shall not go into details. I would just mention that in my view the proposed provisions appear to be drafted in a reasonably precise and narrow way. They deal with out-of-commerce works and other protected subject matter and should normally not collide with any ongoing normal exploitation. Possible future exploitation of hitherto unexploited works, etc may be safeguarded by the rightsowners by prohibiting the use under the provisions in Article 7(1)(c). Finally, an ECL is probably the gentlest possible way of establishing a limitation or exception to copyright and related rights: the protected subject matter will only be used without permission under conditions, which a significant part of other rightsowners, or their appropriately appointed representatives, have considered acceptable. Accordingly, in my view, the proposed ECL it is not obviously incompatible with the three-step-test of TRIPS Article 13, WCT Article 10 and WPPT Article 16, and it is not obvious why it has been considered necessary to limit the international scope of application.

Is it correctly done?

Be that as it may, the way in which international comity has been safeguarded raises questions, too. According to Article 7(4) and (5) of the draft Directive, as paraphrased in paragraph 26 of its Preamble, the ECL mechanisms “should not apply to works or other subject-matter that are first published or, in the absence of publication, first broadcast in a third country or, in the case of cinematographic or audiovisual works, to works the producer of which has his headquarters or habitual residence in a third country. Those mechanisms should also not apply to works or other subject-matter of third country nationals except when they are first published or, in the absence of publication, first broadcast in the territory of a Member State or, in the case of cinematographic or audiovisual works, to works of which the producer’s headquarters or habitual residence is in a Member State.”

International rules governing which works, performances, phonograms and broadcasts are protected tend to be complicated, and this attempt to regulate them all in a joint provision seems to add analytical complexity, rather than simplify things.

Let us first recall the multilateral “interface” to which these rules should fit: under Article 5(1) of the Berne Convention, the obligations to grant national treatment and minimum rights under the convention applies “in countries of the Union other than the country of origin”. Congruently, under paragraph (3) of that Article “[p]rotection in the country of origin is governed by domestic law” (and thus not subject to the requirements of the Convention). The concept of ‘country of origin’ is defined in paragraph (4). The country of origin is the country of first publication and, if the work is simultaneously published in several countries, the country granting the shortest term of protection. For unpublished works, the country of origin is the country in which the author is a national, or, where the film producer has his headquarters or habitual residence, or, where a work of architecture is erected or another artistic work is incorporated in a building or other structure. In accordance with Articles 1(4) and 3 of the WCT, these provisions also apply in relation to that Treaty and they also apply under TRIPS according to its Articles 1(3) and 9(1).

The Rome Convention may also come into play in this context. While the minimum rights under that Convention are more limited than those under the Berne Convention, it still grants a general right of reproduction for producers of phonograms (Article 10) and, for performers, a right of reproduction of unauthorized fixations as well as reproduction for other purposes than those for which fixation was permitted or otherwise lawfully made (Article 7(1)(c)). The ECL provision deals, inter alia, with the reproduction for purposes of making recorded performances available to the public, and thus it is at least to some extent covered by the rights of the Convention. As regards broadcasting organizations, they are, more or less like the performers, granted rights of reproduction of unauthorized fixations and of reproduction of lawful, but unauthorized, fixations for purposes different from those for which the fixation was permitted (Article 13(c)).

Furthermore, the making available of recordings and recorded performances is covered by exclusive rights for both performers and producers of phonograms which are covered by Articles 10 and 14 of the WPPT. In addition, general rights of reproduction are granted for both performers (Article 7) and producers of phonograms (Article 11). In terms of beneficiaries of protection, WPPT refers to national of other Contracting Parties (Article 3(1)), but defines those by reference to the criteria established under the Rome Convention (Article 3(2)). A similar model is used in Article 1(3) of the TRIPS Agreement, which grants rights of reproduction for performers and producers of phonograms in Article 14(1) and (2) and, albeit optionally, for broadcasters in Article 14(3).

The Rome Convention does not operate with a concept of ‘country of origin’ and therefore does not contain points of attachment corresponding to Article 5(4) of the Berne Convention. Instead, we need to look for such criteria regulating the obligation to grant the minimum rights under the Rome Convention. In this respect, the points of attachment in Article 2(1) are clearly not relevant. They indicate the criteria that apply when identifying which level of protection under national law that is to be granted for foreign performances, phonograms and broadcasts in the cases where the Convention requires national treatment. Additional points of attachment are contained in Articles 4 through 6 which, for performers, producers and broadcasting organizations, respectively, establish in which cases national treatment is to be granted.  Since the Convention contains no criteria establishing the same as regards the minimum rights, it would seem that the criteria for national treatment should be applied mutatis mutandis also in relation to those rights. Actually, the limitation to national treatment seems to be a drafting slip, not least in view of the General Report of the Conference (Records of the Rome Conference, page 41ff) which discusses those criteria in relation to the protection under the Convention in general and not only in relation to the rules on national treatment. Otherwise, there would be no criteria for the application of the minimum rights at all, or the criteria would differ from those applicable to the national treatment, and such results would be highly unlikely.

The rules under Articles 4 through 8 of the Rome Convention are rather complex, but looking away from details that are less relevant in this context we may state that:

performances are protected if they took place in a Convention country or if they have been recorded on a protected phonogram or simultaneously broadcast in a protected broadcast (Article 4);
phonograms are protected if the producer is a national of a Convention country; if it was first fixed in a Convention country; or if it was first or simultaneously published in such a country (Article 5); and
broadcasts are protected if the broadcaster’s headquarters are situated in a Convention country; or the broadcast was transmitted from a transmitter situated in a Convention country (Article 6).
(For further details on the points of attachment, see my Primer on International Copyright and Related Rights, page 31ff.)

Overall, these points of attachment under Berne and Rome seem much more sophisticated and detailed that the corresponding provisions in Article 7(5) of the draft Directive. Paraphrasing Article 7(5), the draft Directive does not apply to works or other subject-matter of third country nationals, unless such non-audiovisual works  or phonograms were first published or, if unpublished, first broadcast in a Member State, or unless such audiovisual works are produced by producers having headquarters or habitual residence in a Member State. Even without analyzing all modalities in details, we can see that if the intention is that the Directive should match the points of attachment of the international Conventions and Treaties, as is suggested by the reference to ‘international comity’, it errs to both sides.

It is too generous in that it would exempt from the ECL, for example, an unpublished phonogram featuring a performer who is a third-country national and which is produced by a third-country headquartered and domiciled producer, provided the recording took place in a Union country. Under Rome and the WPPT, the Union country would not be obliged to grant minimum rights for such a recording.

It is too restrictive in that it makes subject to the ECL a recording made in a third country by a Union national performer and a third-country producer, first published in a third country. Likewise, it would subject to the ECL an unpublished architectural work, erected in a country of the Union, and created by a non-union author. In both these cases, the recording or work enjoys protection under the international Conventions and Treaties and they should have been exempted as covered by minimum rights under international instruments.

Apart from that, the provision is also puzzling in that, like the preceding parts of Article 7, it addresses the protection of works and other subject matter, but it fails to address any safeguarding of the rights of third-country broadcasters.

Would it be permitted at all?

Let us now for sake of the argument assume that the level of protection under the proposed ECL would be below the conventional minimum rights. Then the situation would be that, with effect for the nationals of Member States and for others encompassed by the points of attachment linking to those states, an international arrangement had been made between the Member States of the EU regarding their protection, not only in their home country (country of origin), but also in other countries of the EU. This agreement would establish across the Union a minimum level of protection below the level of the Berne and Rome Conventions.

Such ‘special agreements’ are dealt with in Berne Article 20 and Rome Article 22. According to those provisions, countries of the Union/Contracting States may enter into special agreements among themselves, but only in so far as such agreements grant to authors or other beneficiaries more extensive rights than those granted under the Conventions, or otherwise contain no provisions contrary to the Conventions. (For more discussion of those Articles, see Primer on International Copyright and Related Rights, page 20f.)

The proposed Article 7(5) of the draft Directive would mean that, for example, a third country national first publishing his work or phonogram in a Member State would suffer substandard protection not only in that particular state, but also in all other EU Member States. That is clearly forbidden by Berne Article 20 and Rome Article 22, because the EU as such is not, and under the convention acts in force cannot become, party to those Conventions.

Here, of course, one may discuss whether the EU in relation to the WCT, the WPPT and the TRIPS Agreement could be considered a single country, because the EU is admitted as party to those agreements in its own right, but that would not remedy the problems under the Berne and Rome Conventions.

It seems that a similar problem exists in relation to Article 1(2) of the Orphan Works Directive as well. Obviously, it may not be a problem at all, if the limitations and exceptions in question are compatible with the three-step-test, but what then is the purpose of exempting third-country works and other subject matter?”

IBIL Copyright Seminar - Wednesday 8th February - Copyright and Freedom of Speech

Copyright Law and Freedom of Speech

Wednesday 8 February 2017, 18:00 - 19:30, followed by a reception

UCL Darwin Building, Malet Place, London WC1E 6BT

Copyright law often thought to be designed to embody an appropriate balance between the need to allow copyright owners control over uses of copyright works (thereby providing an incentive for creativity) and the need to preserve some access to those works for socially valuable uses. Increasingly, however, copyright law has been subject to the criticism that it no longer strikes the right balance between control and access.

This seminar will investigate the interaction between copyright law and the protection of freedom of speech from a number of different angles.

This event will include:

A view from the US – in particular, considering Google v Garcia 786 F 3d 733 (9th Cir. 2015) and the trend for litigants to try to use copyright law to remedy personal harms or to protect privacy interests.

A view from the UK – the impact of recent jurisprudence from the Court of Justice of the European Union tending to suggest that copying of relatively small parts of a work may amount to infringement; and the introduction of new exceptions.

In order to reach the right balance, speakers ask: Do we need less copyright to promote free speech (i.e. are current exceptions/defences are sufficiently broad)? Or, do we need more copyright to promote free speech (i.e. the proposed ancillary press publishers right)?

Speakers include:

Judge M Margaret McKeown (US Court of Appeal, 9th Circuit)
Jonathan Griffiths (Professor of Intellectual Property Law, Queen Mary University of London)
Julia Reda (Member of the European Parliament, Pirate Party)
John Halton (Assistant General Counsel, Financial Times)

Chaired by Professor Sir Robin Jacob (UCL IBIL)

BOOK ONLINE HERE 

THE COPYKAT

CREATe Public Lecture 2017: the Case for a Related Right for Press Publishers

CREATe is the Research Council UK’s Centre for Copyright and New Business Models in the Creative Economy at the School of Law – University of Glasgow. The Centre is headed up by Professor Martin Kretschmer.

On February 14^th, Thomas Hoeppner (Professor of Civil Law, Business Law and  Intellectual Property Law, Wildau Technical University of Applied Sciences, and, Partner in a Berlin based law firm), will present on “EU copyright reform: the case for a related right for press publishers.”

The CREATe website states that:

“On September 14th 2016, the European Commission presented a package of proposed copyright reforms under the banner of promoting a Digital Single Market (DSM). Amongst others, the proposal includes an exclusive right of press publishers for the digital publication of their press publications.

The proposal has been criticised by academics arguing that the right lacked a justification and would interfere with the access to information (see above). Picking up on this lecture against a publishers’ right, Prof. Hoeppner investigates the merits of such a right. To this end, the lecture outlines the economic and technical background including the developments in the consumption of press publications since the current legislation came into force. The lecture will then present the arguments in favour of the proposed right and examine the counter-arguments raised against it.”

This lecture is in contrast to a previous lecture presented by Professor Raquel Xalabarder (Chair of Intellectual Property, Universitat Oberta de Catalunya, Barcelona, Spain), in which she discussed the press publisher rights in the proposed Directive on copyright in the Digital Single Market, arguing that the right would not actually achieve the desired policy objectives set out in the recitals.

The lecture is free and open to everyone.

It will be held in the Humanities Lecture Theatre in the University of Glasgow on Tuesday 14 February 2017, 17:30 – 19:00.

Visit the CREATe webpage to register for the event.

P.S. This 1709 Intern is currently preparing analysis on the proposed exclusive right of press publishers for the digital publication of their press publications – watch this space!

Postdoctoral Fellowship Opportunity at Harvard – deadline March 1, 2017

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Qualcomm Fellowship in Private Law and Intellectual Property.

The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Centre events, and blogging.

Purpose

The Project on the Foundations of Private Law is an interdisciplinary research programme at Harvard Law School dedicated to scholarly research in private law. Applicants should be aspiring academics with a primary interest in intellectual property (especially, patent, copyright, trademark and trade secret) and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity and remedies. The Project welcomes applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy and comparative law. The Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property is specifically designed to identify, cultivate and promote promising IP scholars early in their career.

More information can be found at http://www.law.harvard.edu/programs/about/privatelaw/index.html

Programme

The Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property is a full-time, two year residential appointment, starting in the Fall of 2017. Like other postdoctoral fellows, IP Fellows devote their full time to scholarly activities in furtherance of their individual research agendas in intellectual property and private law.

Eligibility

By the start of the fellowship term, applicants must hold a J.D. or other graduate law degree. Applications will be evaluated by the quality and probably significance of their research proposals, and by their record of academic professional achievement

For more information, please contact Bradford Conner, conner@law.harvard.edu.

Applications must be received by March 1, 2017.

DailyMotion Permanently Blocked in Russia As A Consequence of Copyright Complaints

DailyMotion, the video-hosting platform, has been permanently blocked in Russia.

The Moscow City court has ordered local ISPs to block subscribers from accessing DailyMotion. In other jurisdictions, this measure is usually reserved for ‘pirate’ sites, such as The Pirate Bay and Book-Fi.

The blocking of DailyMotion is a consequence of repeated allegations of copyright infringement by Gazprom Media, as well as DailyMotion’s alleged inadequacy in dealing with those allegations. his story began back in 2016, when Gazprom Media discovered that video clips from one of its TV channels were being hosted on DailyMotion without permission. Gazprom Media told Russia’s Gazeta that its representatives had sent several complaints to DailyMotion’s offices over the course of 2016 but no response was received. Gazprom Media had DailyMotion URLs blocked at least twice during 2016 by the Moscow City Court. In December of 2016, DailyMotion was given a last chance to remove the problem clips from its platform. The subsequent failure of DailyMotion to comply with the Moscow City’s courts order has led it to engage the laws applying to repeat copyright infringers, therefore giving an order to local ISPs to block DailyMotion permanently.

In comments made to The Hollywood Reporter, a spokesman for DailyMotion stated that the company had no knowledge of any ongoing court procedure against it and was going to “take all necessary steps to make contact with relevant authorities in Russia to resolve the issue.”

Shattered Mirror; News, Democracy and trust in the digital age

Just a few days ago, the Public Policy Forum released its anticipated report on the future of Canadian media, entitled, “Shattered Mirror; News, Democracy and trust in the digital age.” The decline of the news industry is a hot topic across the globe at the moment, with the proposed neighbouring right for news publishers found in the Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market sparking much debate across Europe.

The report makes 12 recommendations (summarised here), including a review of the Copyright Act’s fair-dealing rules in order to strengthen the rights of news originators to control their intellectual property.

The Copyright Act’s fair-dealing rules

The most recent iteration of Canada’s Copyright Act was enacted in 2012, and is due to be reviewed this year. It includes a series of listed exceptions to copyright infringement, including a fair dealing exception for news reporting at Article 29.2. The fair dealing exception in relation to news reporting state that;

“Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:

(a)  The source; and

(b)  If given the source, the name of the

a.       Author, in the case of a work,

b.      Performer, in the case of a work,

c.       Maker, in the case of a sound recording, or

d.      Broadcaster, in the case of a communication signal”

Reviewing the Copyright Act’s fair-dealing rules to strengthen rights of news originators to control their intellectual property (recommendation number 4)

The Public Policy Forum recommends on page 90 of the report a review which “tightens usage of copyrighted news material in favour of creators, without unduly stifling the social power of sharing on the Internet. News producers have a right to benefit from their work for a reasonable period while pursuing the business strategy of their choice.”

The report goes on;

“In many cases, the issue arises when aggregators, bloggers or others use material without permission. This is good for the aggregator, and perhaps convenient for the consumer, but even if the material links back to its source, the original producer should be able to decide whether it wants to share – and whether it wants to negotiate compensation in some form.”

An anecdote is subsequently given;

“In different circumstances, the New Brunswick Telegraph-Journal told us of an exclusive photo posted on its site during the 2014 attack in Moncton that left three members of the RCMP dead. The site maintains what is known as a “hard paywall,” making content available only to paid subscribers. As a result, it experienced a spike in registrations when word spread of its photo. Then the CBC copied the photo

without permission, and the spike quickly subsided. What the CBC did is, in one way or another, common these days, and can be argued to be permissible under fair-dealing provisions.”

This recommendation is likely to spark much debate over its potential consequences for free speech, and whether narrowing the fair-dealing exception in relation to news would result in the desired economic improvement for the news publishing sector. This recommendation has already attracted criticism, and it will be interesting to follow the parallel unfolding debates on this issue across the European and Canadian jurisdictions.

European Copyright Society – Opinion on EU Reform Package

On a brief and final note, the European Copyright Society published its Opinion on the EU Reform Package on 25 January 2017.

The European Copyright Society provides a platform for “critical and independent scholarly thinking on European Copyright Law and policy. Its members are scholars and academics from various countries of Europe, seeking to articulate and promote their views of the overall public interest on all topics in the field of authors rights, neighbouring rights and related matters.”

This CopyKat from Tibbie McIntyre

France: Any Alteration/Modification of a Work in Public Domain is Infringement of Moral Rights

Auguste’s Rodin’s works are now in the public domain. This does not mean that you can do just about anything with them. I wrote a short post about the issue while a guest Kat, and a recent holding from the French highest civil Court, the Cour de cassation, gives me an opportunity to revisit the issue.

Mr. Guy X. reproduced and sold several sculptures of Rodin, now in the public domain, from May 1999 to September 2000. The statues were reproduced by pouring bronze on Rodin’s former foundry models. Mr. X was sued in criminal court for having presented these works as original pieces. He was found guilty of counterfeiting and selling counterfeit works, and was ordered to indemnify the Rodin Museum in Paris, a civil party to the case, for infringement of the author's moral rights.

Mr. X also reproduced works from Emile Bernard, Malvin Hoffman, Gaston d'Illiers, Pierre Lenordez, François Pompon, Louis Riche and Irénée Rochard which were still protected by French copyright (droit d’auteur). The Cour de cassation unsurprisingly confirmed that reproducing these works without permission was infringement.

As for the works in the public domain, Mr. X argued that, while article 121-1 of the French intellectual property Code indeed provides authors the right of respect in one’s name, of one’s quality and of one’s work, a set of moral rights which are perpetual, inalienable and imprescriptible, he had not infringed on Rodin’s moral rights as the works he had produced were of sufficient of quality as to not infring on these moral rights.

The Paris Court of appeals had upheld the judgment against Mr. X. and found that he had indeed forged works in the public domain, finding that Mr. X. wanted to confuse the public about the origin of the works in such a way as to suggest that they were indeed original sculptures, made during Rodin’s lifetime, whereas they were actually made by over moldings.

The process used by Mr. X “necessarily entails a change in the size of the original work, an attenuation of the precision of the features, a weakening of the vigor of the forms created, and that several of the works at stake had distorted the original sculptures, by modifying pedestals of the structures, removing, adding or inverting an element, or by smoothing the coats of the animals, or because of a defective patina.”

The Cour de cassation approved the reasoning of the Court of appeals, because “infringement of a work which has fallen into the public domain consists of any alteration or modification of the original work.”

While the facts of the case have established that Mr. X wanted to deceive customers, the holding of the Cour de cassation is so broad that it may encompass any alteration or modification of a work in the public domain, even if such alteration is made with no intention whatsoever of deceiving the public. How should we interpret this rather lapidary ruling? Does that mean that any alteration of a work in the public domain is an infringement, but that there is a benevolent tolerance if such modification is not made to deceive the public? Or does it mean that moral rights are so strong that they prevent any modification of any work, in perpetuity?

The Cour de cassation nevertheless found that the Court of appeals did not apply the law correctly when it had found that several of Mr. X’s works which indeed reproduced works by Rodin were infringing, as the Court had not researched if these reproductions were infringing the moral rights of the author, and “broke” (casser) the Court of appeals ruling. This holding further indicates that any reproduction which would not be an exact copy of the work in the public domain would be infringing.