New Spanish decision might offer support for 'direct licensing'

Mark Knopfler live in Bilbao by Aherrero

Most venues and festivals have a blanket annual licence with their local music collection society, and would pay a percentage of their box office revenues to compensate composers and lyricists, and their music publishers, for the use of music. In the UK that rate (Tariff LP) is currently 3% of box office paid to PRS for Music (this Tariff is under review). This rate is meant to cover ALL music used - the only exception in the past used to be the exclusion of the 'grand right' for dramatico-musical works which were intended to be accompanied in performance by dramatic action(for example opera and musicals) where the right was usually directly licensed by music publishers on behalf of authors.  

A Spanish court has ruled against collection society SGAE in favour of a venue which had negotiated to pay performance royalties directly to artists. The ruling, by Judge Pedro Macías in the commercial court of Badajoz in Extremadura, centres on two shows by veteran Spanish rock group Asfalto and comedian Pablo Carbonell at Badajoz’s 325 capacity Sala Mercantil venue in 2010.

When SGAE (Sociedad General de Autores y Editores) noted that the usual fees for the concerts had not been paid, it announced its intention to collect, only to be told that  “the artists had reached a private agreement between them” and the Mercantil, according the venues legal team, OpenLaw. Judge Macías’s affirmed the composers “exclusive rights to the exploitation of the work, without any limitations other than those established by law” 

“The owners of these rights are the authors, so they are the ones who should be able decide what to do with them,” comments OpenLaw’s Andrés Marín. “If a composer and performer negotiate directly with a third party and agree to give away or even collect their copyrights directly, the SGAE has no right to try to collect, or recover, the rights the artist has not claimed.

The ruling certainly supports the developing practice of 'direct licensing' where performing artists who compose their own material are choosing to bypass their local performing right organisations (PROs) in favour of collecting performing right royalties directly. At last year's International Live Music Conference, Mark Knopfler's manager Paul Crockford highlighted the efficiency of self collection for Knopfler - and the practice of (large) discounts some collection societies were giving to promoters to assist in the collection of these revenues. 

However, a spokeswoman for SGAE said that that the PRO’s lawsuit was aimed at the Mercantil, not the performers, and that Judge Macías displayed a “clear misunderstanding” of copyright law by failing to distinguish between the rights of performers, composers and publishers: “The performers said to the court that they’d received their royalties, and the court understood that to mean the composers had, too,” she told IQ magazine. “It was a clear misunderstanding of Spanish copyright law, which distinguishes between the rights of composers and artists.” (In both cases, it should be noted, the composers and performers were one and the same). She said that Spanish creators can, if they wish, opt out of SGAE’s collective licensing (in the UK this is called a Clause 7G arrangement) but that in the case of the two disputed shows, neither performer had done so. “If any of our members want to withdraw certain rights, there’s a procedure for it,” she explains. “But what we can’t do is have both systems: If they have a blanket licence, they can’t then administer their rights directly as well, it would be chaos for us.”

OpenLaw, said the decision shows traditional collection societies are ultimately subordinate to the wishes of copyright holders – and demonstrates a “clear victory over the unjustified position of dominance that SGAE exerts over many of Spain’s music venues and artists”.

The  Court of Justice of the European Union recently decided in Soulier and Doke, C-301/15 that the InfoSoc Directive grants a 'high level of protection' to is authors. That case concerned a reference for a preliminary ruling from the French Conseil d’État (Council of State) to clarify if a legal framework intended to encourage the digital exploitation of literary works (books) published in France before the 1st January 2001 and which were no longer commercially distributed by a publisher and are not published in print or digital format was compatible with Article 2(a) and Article 3(1) of the Directive. The court held that the Directive must be interpreted as precluding national legislation that gave an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books. Despite contrasting hints in the past in which the CJEU appeared to employ the terms 'authors' and 'rightholders' interchangeably, the Court reinforced the idea that who the InfoSoc Directive intends to grant a 'high level of protection' to is authors. It would appear that, post-Soulier and lacking specific 'EU-endorsed authorisation' to the contrary, national legislative initiatives (including licensing schemes) that fail to incorporate appropriate and streamlined procedures to (i) inform authors of possible future uses of their works, and (ii) obtain their relevant, individual, consent are likely to be regarded as incompatible with EU law.

This year's International Live Music Conference is hosting a panel titled "Direct Licensing: Rates, Rights and Wrongs on Thursday March 9th chaired by Jon Webster from the Music Managers Forum, and with representatives from direct licensing agency PACE, collection societies PRS for Music and Buma Stemra and from Yourope, the European festivals association and explains the panel as: "The widespread system of promoter rebates given by some PROs (performance royalty organisations) came under scrutiny at ILMC last year. As a result, several artists are now choosing to license their songwriting performance royalties directly, a situation that left promoters facing unexpected licensing fees during the 2016 festival season. The upshot is a three-way conversation between performance royalty organisations, promoters, and artists, as existing relatively simple administrative models are reviewed making the whole process more complicated for all. Add in various tariff updates, and performance royalties is an interesting area right now. Jon Webster invites specialists and guest speakers to help clarify the current situation and what the solutions might be."

http://www.iq-mag.net/2017/02/landmark-legal-victory-direct-licensing-mercantil-asfalto/#.WKYeuW-LSM9

http://the1709blog.blogspot.co.uk/2016/11/the-cjeu-decision-in-soulier-what-does.html

http://the1709blog.blogspot.co.uk/2016/03/live-music-sector-put-cmo-kickbacks.html

Swedish appellate court allows web blocking

The Swedish Court Of Appeal has overturned the ruling in the District Court Of Stockholm in 2015 which had dismissed an application that would have forced internet service providers to block The Pirate Bay and other platforms linked to music and other piracy  - a move opposed Swedish ISP Bredbandsbolaget

The Patent And Market Court of Appeal has now ruled in favour of music and movie companies, ordering Bredbandsbolaget to implement web-blocking of both The Pirate Bay and another piracy site called Swefilmer. The court confirmed that their judgement was in part influenced by the web-block injunctions that have been ordered elsewhere in the European Union.

Torrentfreak reports that judge Christine Lager said in a statement: "In today's judgment, the Patent And Market Court held that right holders such as film and music companies can obtain a court order in Sweden against an ISP, which forces the ISP to take measures to prevent copyright infringement committed by others on the internet. The decision is based in EU law and Swedish Law should be interpreted in the light of EU law. Similar injunctions have already been announced, such as in Denmark, Finland, France and the UK, but the verdict today is the first of its kind in Sweden".

The verdict decision is not open to appeal. 
.
The Advocate General Maciej Szpunar recently opined to the Court of Justice of the European Union (CJEU) that The Pirate Bay makes acts of communication to the public on a referral by the Dutch Supreme Court (Hoge Raad der Nederlanden) in Stichting Brein, C-610/15, and that web blocking by depriving internet users of access to The Pirate Bay would be proportionate to the significance and seriousness of the copyright infringements committed on that site. 

http://www.completemusicupdate.com/legal

http://the1709blog.blogspot.co.uk/2017/02/ag-szpunar-advises-cjeu-to-rule-that.html

AND see this new article on the IP Kat from Nedim Malovic (Sandart & Partners) on the decision and that the court noted that it is indeed possible under EU law for rightsholders to obtain an injunction [pursuant to Article 8(3) of the InfoSoc Directive] against an intermediary whose services are used to commit a copyright infringement, even if the ISP only provides its customers with internet access. http://ipkitten.blogspot.co.uk/2017/02/swedish-patent-and-market-court-of.html

ITV loses Copyright Tribunal appeal

UK national broadcaster ITV has lost its appeal to the  High Court appeal against the 2016 Copyright Tribunal ruling that set rates for the current (2014-2017) period with PRS for Music, the collection society which represents composers, lyricists and music publishers in the United Kingdom. The Tribunal agreed that PRS could increase the tariff beyond the 2013 fee payment of £23 million per annum to a new base rate of £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). On appeal the High Court told ITV that the Tribunal  "had not made an error of law in reaching its decision".

Commenting on the decision, PRS Commercial Director Paul Clements said: "In June 2016, the copyright tribunal decided a dispute over the terms of ITV's broadcast licence in PRS For Music's favour. The tribunal decision set down clear and compelling reasons for an increase in the licence fee, reflecting the right value for our members' music". "While ITV chose to appeal this decision, I am pleased that the High Court has now rejected their arguments and upheld the original tribunal decision" adding "This result is very real evidence of our commitment to secure the right value for our members' work".

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/532234/ct12714.pdf

http://www.musicweek.com/publishing/read/high-court-rejects-itv-appeal-over-prs-for-music-tribunal-win/067598

http://www.musiclawupdates.com/?p=6496

European Copyrigh Reform: Open Letter from European Research Centres

On 14 September 2016, the European Commission published a package of reform proposals, including two Regulations (that have direct effect in Member States) and two Directives (that will have to be implemented into national laws).

CREATe have now alerted us to a new OPEN LETTER TO MEMBERS OF THE EUROPEAN PARLIAMENT AND THE EUROPEAN COUNCIL which reads:

EU Copyright Reform Proposals Unfit for the Digital Age

We are independent legal, economic and social scientists, and represent the leading European centres researching intellectual property and innovation law.

It is likely that you personally are being lobbied with regard to a complex Copyright Reform package that extends to 3 Regulations and 2 Directives (supported by over 400 pages of Impact Assessments).

The proposals say the right words on the cover: “EU Copyright Rules Fit For The Digital Age. Better choice & access to content online and across borders. Improved copyright rules for education, research, cultural heritage and inclusion of disabled people. A fairer online environment for creators and the press.”

While the Proposed Directive on Copyright in the Digital Single Market (COM(2016) 593 final) contains a number of reasonable, common sense measures (for example relating to cross border access, out-of-commerce works, and access for the benefit of visually impaired people), there are two provisions that are fundamentally flawed. They do not serve the public interest.

Article 11 seeks to create an additional exclusive right for press publishers, even though press publishers already acquire exclusive rights from authors via contract. The additional right will deter communication of news, obstruct online licensing, and will negatively affect authors.

Article 13 indirectly tries to amend the E-Commerce Directive (2000/31/EC) that arranges the liability of online intermediaries for user generated content into a shared responsibility of rights holders and service providers. The proposals will hinder digital innovation and users’ participation.

With respect to both provisions, independent empirical evidence has been ignored, consultations have been summarised in a misleading manner, and legitimate criticism has been labelled as anti-copyright. We urge you to look inside the copyright package and seek out independent expertise.

In order to facilitate debate, we have produced two short appendices to this letter, setting out the key flaws of the proposals, and listing sources of evaluation. There is independent scientific consensus that Articles 11 and 13 cannot be allowed to stand.

First signatories include academics of the following Research Centres: The Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge, United Kingdom; Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI), University of Strasbourg, France; RCUK Copyright Centre (CREATe), University of Glasgow, Scotland, UK; Chair for Civil and Intellectual Property Law, Humboldt University, Berlin, Germany; Institute for Information Law, University of Amsterdam, Netherlands; Max Planck Institute for Innovation and Competition, Munich, Germany; Center for Internet & Society (NEXA), Politecnico di Torino, Italy; Universitat Oberta de Catalunya (UOC), Barcelona, Spain; SciencesPo Paris, France; Tilburg Institute for Law, Technology and Society & Tilburg Law and Economics Center, University of Tilburg, Netherlands

You may agree with the letter - you may disagree! But it's well worth a read

http://www.create.ac.uk/policy-responses/eu-copyright-reform/ and you can download the letter here http://www.create.ac.uk/wp-content/uploads/2017/02/OpenLetter_EU_Copyright_Reform_24_02_2017.pdf

and here's a link  to the form where academics can join the letter https://goo.gl/forms/POxlrkYn3LcOJYzy1

T Bone Burnett takes aim at DCMA safe harbours

T Bone Burnett by Kulturvultur (2007)

Congress enacted the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago, aiming to provide a  balance between the needs of content creators, who were struggling to protect their intellectual property in the digital age, and fledgling Internet companies, who feared being held liable for the misdeeds of  their customers - giving the technnology companies the benefit of 'safe arbour' protection provided service providers “reasonably implement” a policy that provides for the termination of “repeat infringers” in “appropriate circumstances.”
But is that balance right? 

Singer, songwriter and producer T Bone Burnett has delivered a telling contribution to the US Copyright Office's review of Digital Millennium Act 'safe harbour' provisions in the USA, saying in a video that whilst the law that was supposed to "balance the internet's openness with creators' ability to earn a living wage from their work  ..... [T]hose safe harbours have failed".

"The problems are familiar", he adds. "[And] they are well described in the record of these proceedings, from the broken Sisyphus climb of 'notice and takedown' to the gunpoint negotiations and pittance wages forced upon creators by the Google monopoly. The Big Tech ITOPIANS can track us across dozens of networks, devices and profiles to bombard us with micro-targeted ads, but they can't even identify unauthorised copies of our work and keep them off their own servers and systems. Or they won't".

"The problem here isn't technology", T Bone adds, saying "Creators welcome the digital revolution and its power to connect, amplify, and inspire. A modern recording studio looks more like a cockpit than a honky tonk, and that's just fine. The problem is business models - designed to scrape away value rather than fuel new creation, focused on taking rather than making. To restore technology's place as the rightful partner of tomorrow's creators, we need change".

"The safe harbours must be restored - so only responsible actors earn their protection, not those who actively profit from the abuse and exploitation of creators' work. Technology must be enlisted to make the system work better, not to roadblock progress in a pointless arms race of whack a mole and digital deception. Creators must be given meaningful tools to earn a living from their art". 

"The false prophets of the internet may have imagined an egalitarian open source creative wonderland - but what we got was a digital playground for a handful of mega corporations and web moguls living fat off the artistic, cultural and economic value everyone else creates online".

"It's time for Congress to close the loopholes in section 512 of the DMCA. Our culture is at stake. And it's time for musicians to join with us, the Content Creators Coalition, to make that happen. Your career depends on it. On behalf of music creators, thank you to the Copyright Office for this proceeding and for considering these views".

On the same matter, the recent decision of the Second Circuit Court of Appeals  in the MP3tunes case is of interest: the Second Circuit noted that copyright infringement is a strict liability offence with no requirement to prove unlawful intent. Moreover, both uploading and downloading can constitute infringement. Because the DMCA does not define “repeat infringer,” the court adopted this ordinary meaning and held that “all it [takes] to be a ‘repeat infringer’ [is] to repeatedly [upload or download] copyrighted material for personal use.”

The Second Circuit also found that MP3tunes’ repeat infringer policy was not reasonable as a matter of law because, whilst the site did respond to takedown notices from copyright owners and terminated the accounts of some users, “MP3tunes did not even try to connect known infringing activity of which it became aware through takedown notices to users who repeatedly sideloaded files and created links to that infringing content in the sideload.com index.”

http://www.billboard.com/articles/business/7694396/t-bone-burnett-scathing-message-copyright-office-urging-reform

http://www.mondaq.com/unitedstates/x/569116/Copyright/Second+Circuit+Clarifies+Repeat+Infringer+Policy+Requirement+for+DMCA+Copyright+Safe+Harbors

Image:  Kulturvultur

Search Engines act to demote pirate results

The UK IPO has announced today that Google and Microsoft have signed an anti-piracy agreement with the creative industries, in the form of the UK record industry trade body, the BPI and the US Motion Picture Association.

The government has been facilitating the talks (which have apparently been going on for several years)  which have now led to a Voluntary Code of Conduct.
The objective is to reduce the visibility of pirate sites to those casually searching for content.  Currently if one searches for music and film titles, often pirate sites appear high up in the search results.

The Code was agreed on 9 February 2017, will come into force immediately, and sets targets for reducing the visibility of infringing content in search results by 1 June 2017.
Minister of State Jo Johnson MP will oversee the implementation of this Code of Practice, and the IPO will work with all parties to evaluate progress.  The implication is that, if progress is not made, legislation may follow.  The announcement handily arrives just before the issue was due to be debated by the House of Lords as part of the progress of the Digital Economy Bill.  The full IPO press release is here.

The Code is currently limited to the UK, but the creative industries hope that it will become a model adopted throughout the world.  You can hear Eddy Leviten from the Alliance for IP talking about it on the BBC Radio 4 Today programme at http://www.bbc.co.uk/programmes/b08fd9ww [at about 06.50am]

THE COPYKAT

This CopyKat from David Laio

Google

VG Media, an association of publishers including Handelsblatt and Axel Springer, has brought a claim against Google in relation to the German 2013 Ancillary Copyright Law. This law was designed to compel Google to pay for publishing summaries of news content in web searches, which Google argues is only for indexing purposes. In addition Google claims its search service helps publishers reach a wider audience.

This is the fifth claim VG Media has made against Google, with three of those claims having been decided in Google’s favour (with the rest still pending). In 2014 Google had previously removed snippets in relation to one such claim made by VG Media, but the consortium responded by characterising this behaviour as an abuse of Google’s dominant position. Some have suggested VG media had hoped to compel Google into licensing agreements, see here. 

The Berlin District Court has recently asked the European Court of Justice for clarity on a technical point, whether the law had been properly submitted to European Commission authorities under a process of review called “notification”. This could be a potential stumbling block for the lawsuit – the ruling is currently expected on the 9^th of May this year so stay tuned.

Paul McCartney sues Sony/ATV

Paul McCartney will be able to reclaim the rights to music which Sony/ATV currently hold as of October 2018 under US Copyright Act (the right discussed here in relation to Duran Duran, which also involved Sony/ATV). McCartney has previously asked Sony/ATV to acknowledge his rights to terminate copyright transfers of his music but did not receive this confirmation. As such, McCartney is seeking a judicial declaration allowing him to reclaim his copyright. No doubt this will be influenced by the Duran Duran case, which was granted leave to appeal by Mr Justice Arnold earlier this month.

Copyright Law Reviews 

Canada: The Canadian government plan to review copyright laws next year and commissioned a study on views of Canadian businesses (reported here). In particular the study found that follow-the-money strategies (which focus on methods such as reducing online advertising revenues and disabling payment to intermediaries) have a mixed record of success, especially with the continuing popularity of online advertisers who prioritise reaching large audiences over enforcing copyright. It is also interesting to note rights holders tended not to give fighting online piracy a high priority, as many believe that “their scarce resources are better invested in other battles and counted on global organizations to pursue the fight.”

US: In a recent speech, House Judiciary Committee Chairman Bob Goodlatte said that several copyright policy proposals would be voted on during the current legislature. Goodlatte said one of the first proposals will focus on the US Copyright Office to ensure that it "keeps pace in the digital age", including granting the Office autonomy and the creation of a searchable database of all copyright works – a monumental task indeed. Industry observers also suggested that music licensing and a small claims tribunal would be possible other proposals. See here for more details.

Beyoncé

The estate of the late Anthony Barré (known as Messy Mya) is suing Beyoncé for the use Barré’s voice in the song “Formation”. Sample audio clips were allegedly taken from a hit YouTube videos including one named ““Booking the Hoes From New Wildin”. The claim is for more than $20 million in back royalties and other damages, as well as credit for being a writer, composer, producer, and performer. Listen to the clips here.

Going for Gold': 3D Scanning, 3D Printing and Mass Customisation and the Future of Intellectual Property Law

Another free seminar from the City University Law School - but you do need to register. 

13.00  Wednesday 1st March 2017

AG01
College Building
City, University of London
St John Street
London
EC1V 4PB

United Kingdom

The growth of 3D technologies impacts on intellectual property law, leading to a number of implications including copyright, design and licensing issues amongst others. Such challenges question the enforcement, object and purpose of IP laws whilst exploring the opportunities presented through this technology.

Building on the Commissioned Research carried out for the UK Intellectual Property Office (UKIPO) (2013-2015), the paper will first set out the findings, conclusions and recommendations from this project before moving on to a consideration of the AHRC-funded project titled 'Going for Gold: A Legal and Empirical Case Study into 3D Scanning, 3D Printing and Mass Customisation of Ancient and Modern Jewellery' . 

In presenting the two funded projects and its findings, the paper will outline the IP issues arising from this emerging technology, whilst questioning the impact of 3D scanning and 3D printing on the future of IP law.

The Speaker is Professor Dinusha Mendis (Professor of Intellectual Property Law and Co-Director of the Centre for Intellectual Property Policy and Management (CIPPM)). 

Sign  up here https://www.city.ac.uk/events/2017/march/going-for-gold-3d-scanning,-3d-printing-and-mass-customisation-and-the-future-of-intellectual-property-law

Image: 3D-printed propeller for model airplane

Online Platforms and Intermediaries in Copyright Law

23-24 March 2017

Ludwig Maximilian University Munich
Geschwister-Scholl-Platz 1
80539 München

Intermediaries play an essential role in internet communication. They allow us to access the net, to exchange information and to enjoy entertainment. But at the same time their services are used by infringers. This raises the issue of liability, particularly in copyright law. The EU law framework dates back to the late 1990s, when modern types of intermediaries were still unknown. The line between liability for primary infringement and the liability of intermediaries is difficult to draw. Injunctions against intermediaries whose services are used by infringers must be available, but EU law leaves the conditions of such relief to the Member States. Arts 12-15 of the E-Commerce Directive provide safe havens, which are, however, of limited and uncertain scope. In this normative vacuum, the CJEU has become the engine of harmonisation, creating rules and principles of liability step by step and by trial and error. The Commission has proposed new, but very cautious regulation concerning copyright in the Digital Single Market.

Against this background, this conference will focus on the economic, EU law, constitutional and competition law framework, take stock of the present law, compare different national approaches in the EU, the US and Asia and consider potential ways forward.

Speakers include Joost Poort (Institute for Information Law, University of Amsterdam), Andreas Paulus (Federal Constitutional Court), Maciej Szpunar (Court of Justice of the European Union), Sir Richard Arnold (High Court of England and Wales), Maria Martin-Prat (EU Commission), Matthias Schmid German Ministry of
 Justice and Consumer Protection, Jonathan Griffiths Queen Mary, University
 of London and Peter Yu Texas A&M University School of Law

http://www.platforms.jura.uni-muenchen.de/index.html

AG Szpunar advises CJEU to rule that The Pirate Bay makes acts of communication to the public

This post, first published on the IPKat, is from Eleonora Rosati

Is there a communication to the public within the meaning of Article 3(1) of the InfoSoc Directive by the operator of a website [The Pirate Bay, TPB], if no protected works are available on that website, but a system exist by means of which metadata on protected works which is present on the users’ computers is indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof?

This is the principal question that the Dutch Supreme Court (Hoge Raad der Nederlanden) referred to the Court of Justice of the European Union (CJEU) in Stichting Brein, C-610/15.

As readers will promptly recall, this is just the last in a(n impressive, quantity-wise) series of references for a preliminary ruling seeking clarification on the interpretation of the right of communication to the public within Article 3(1) of the InfoSoc Directive, the most immediate precedents being GS Media [Kat-coverage here] and the (pending) Filmspeler case [on which see the Opinion of Advocate General (AG) Campos Sánchez-Bordona here].

Background

There is not much to say here. Dutch anti-piracy organisation Stichting Brein applied for an injunction (to be granted under the Dutch equivalent of Article 8(3) of the InfoSoc Directive) against access providers Ziggo and XS4ALL to block access by recipients of their services to the internet addresses of the website of TPB.

That application, upheld at first instance, was dismissed on appeal, essentially on the grounds, first, that it is the recipients of the services of the defendants in the main proceedings, and not TPB, which are the originators of the copyright infringements and, secondly, that the blocking sought would not be proportionate to the aim pursued, namely the effective protection of copyrights. 

Stichting Brein appealed on a point of law against the latter decision before the referring court.

AG Maciej Szpunar

Today's Opinion

AG Szpunar has just issued his Opinion, advising the CJEU to answer the question of the Dutch Supreme Court in the AFFIRMATIVE. 

More specifically, "the fact that the operator of a website makes it possible, by indexing them and providing a search engine, to find files containing works protected by copyright which are offered for sharing on a peer-to-peer network, constitutes a communication to the public within the meaning of Article 3(1) of [the InfoSoc Directive], if that operator is aware of the fact that a work is made available on the network without the consent of the copyright holders and does not take action in order to make access to that work impossible." [para 54]

The Opinion is EXTREMELY interesting, for a number of reasons.

EU, not national solutions = a matter of primary liability

It is sufficient to note that the AG rejected at the outset the view of the European Commission and UK that any solution to the possible liability of a site like The Pirate Bay should be found under national law [translated (possibly): under secondary liability, an area unharmonised at the EU level].

According to the AG this would lead [and has led] to very diverging approaches and ultimately undermine the objective of the EU legislature to harmonise the substantial scope of the rights enjoyed by authors and rightholders within the single market [para 3].

The TPB case is different from GS Media's

Logically linked with the point above, the AG also noted that the problems raised in this case are different from those addressed in Svensson and GS Media.

According to the AG, in fact, while those cases concerned the secondary communication of works already accessible on the internet by a person providing the online content himself, the present case concerns original communication, made on a peer-to-peer (P2P) network. As such, the CJEU reasoning in those cases cannot be directly applied to the case at hand [para 4].

The "unavoidable" role of TPB

Following a review of the technical functioning of P2P networks, the AG said that what is relevant in order to answer the question posed by the Dutch Supreme Court is the consideration of the role played by websites such as TPB in file-sharing on P2P networks: "[t]hat role is crucial" [para 26].

More specifically, the use of any P2P network "depends on the possibility of finding peers available to share the desired file. The information, whether it is technically in the form of torrent files, ‘magnet links’ or some other form, is found on websites such as TPB. Those sites provide not only a search engine but also, as in the case of TPB, indexes of the works contained in those files, classified in various categories, for example, ‘100 best’ or ‘the latest’. So it is not even necessary to look for a particular work, it is sufficient to choose from those on offer, as in the catalogue of a library (or rather an audio or video collection, since it is mainly music and films). Those sites also often provide additional information, inter alia on the estimated download time and the number of active ‘seeders’ and ‘leechers’ for a particular file. Although, as the defendants in the main proceedings contend, it is therefore theoretically possible to find files offered for sharing on a peer-to-peer network without using a site like TPB, in practice, the search for such files generally leads to such a site or a site aggregating data from several peer-to-peer networks. The role of websites such as TPB is therefore practically unavoidable in the operation of those networks, in any event for the average internet user." [paras 26-27]

Communication to the public

Having exhausted these preliminary remarks, the AG turned to Article 3(1) of the InfoSoc Directive and what makes an act of communication to the public. 

As usual [just think of VOB, Mc Fadden, or Hotel Edelweiss], he provided an analysis of the history and rationale of the relevant provision considered and recalled [as per consistent CJEU case law, at least since SGAE] that to have an act of communication to the public it is necessary to have: (1) an act of communication, and (2) the presence of a public [para 36].

How Kats communicate

(1) An act of communication: no transmission is required

Considering the first condition, ie an act of communication, the AG recalled that the CJEU has emphasised "the essential role of the player originating the communication and the deliberate nature of its intervention. That player makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, and does so in particular where without that intervention its customers would not, in principle, be able to enjoy the broadcast work" [para 37, recalling GS Media, para 35].

The AG then tackled the thorny issue of whether transmission is actually required [readers will remember that the European Copyright Society stated that this is necessary to have an act of communication]. 

While it is true that "in the case of making available, the actual transmission of the work takes place only potentially and on the initiative of the recipient", the AG [correctly] stated "the ability of the copyright holder to prevent the communication arises at the actual time of making available, irrespective of whether and when transmission actually takes place." [para 38]

(2) The presence of the public: the 'new public'

Turning to the second criterion, ie the presence of the public, this involves two requirements: (a) an indeterminate but fairly large number of potential recipients [para 39]; and (b) a 'new public' [para 40] which only comes into consideration when the technical means used is different from that used for the initial communication [para 42].

Communication to the public on P2P networks

According to the AG, "[t]here is no question ... that the making available to the public of copyright-protected works takes place where those works are shared on a peer-to-peer network." [para 44]

The question is, however, who is to be regarded as making the relevant act of communication: is the P2P network users or, rather, the operator of an indexing site such as TPB?

According to the AG, while users deliberately make the works in their possession available to other users of the network [para 49], "those works would not be accessible and the operation of the network would not be possible, or would at any rate be much more complex and its use less efficient, without sites such as TPB, which enable works to be found and accessed. The operators of those sites therefore arrange the system which enables users to access works that are made available by other users. Their role may therefore be regarded as necessary." [para 50]

The operator of a site that merely indexes the content that is present on the P2P network has, in principle, no influence over the appearance of a given work on that network (it is only an intermediary which enables users to share the content on a P2P basis). As long as he is unaware that the work has been made available illegally or if, once it has been made aware of the illegality, it acts in good faith to rectify the matter, it has no liability for the users' communications. 

"However, from the moment that operator has [actual, eg by means of a notification from the relevant rightholder: para 52] knowledge of the fact that making available took place in breach of copyright and does not take action to render access to the work in question impossible, its conduct may be regarded as being intended to allow, expressly, the continuation of the illegal making available of that work and, hence, as an intentional action." [para 51]

No presumption of knowledge

Rejecting the idea of a presumption of knowledge

The AG rejected that in a case like this it would be appropriate to have a presumption of knowledge like the one adopted in GS Media [para 52] because such a presumption would amount to imposing on operators of indexing sites of P2P networks, which normally operate for profit, a general obligation to monitor the indexed content [contrary to Article 15 of the Ecommerce Directive].

The TPB operators: joint liability

Accordingly, in a situation like TPC, the intervention of their operators "meets the conditions of being necessary and deliberate, laid down in the case-law of the Court" and those operators should therefore "also be considered, simultaneously and jointly with the users of the network, as originating the making available to the public of works that are shared on the network without the consent of the copyright holders, if they are aware of that illegality and do not take action to make access to such works impossible."

The second question

The AG also considered the second question [to be answered only if the CJEU answers the one on communication to the public in the negative], ie whether Article 8(3) of the InfoSoc Directive must be interpreted as offering scope for obtaining an injunction against an ISP ordering it to block access for its users to an indexing site of a peer-to-peer network by means of which copyright infringements have been committed, even if the operator of that site does not itself communicate to the public the works made available on that network.

Applicability of Article 8(3) injunctions to sites such as TPB

The AG noted that the only peculiarity of a blocking injunction [ie a measure that the CJEU considered compatible with EU law, although in a different context, in Telekabel] in case like the one at hand would be that blocking of access to the TPB site would affect not only users who commit copyright infringements but also the TPB site, which would not be able to offer its services to users connected to the internet through the intermediary of the defendants in the main proceedings [para 61].

The AG noted that the circumstances envisaged in Article 8(3) presuppose the existence of a link between the subject of the injunction and the copyright infringement. A measure blocking a website implies that it has been established that the operator of that site has been held liable for copyright infringement using the services of the intermediary to which the injunction is addressed. 

Blocking order

Having distinguished between situations of primary and secondary liability and considered the need to balance different fundamental rights, the AG considered that depriving internet users of access to information, by blocking the TPB site, would be proportionate to the significance and seriousness of the copyright infringements committed on that site [big, yet unsurprising, win for copyright owners].

Overall, Article 8(3) should be interpreted as permitting an injunction to be obtained against an intermediary ordering it to block access for its users to an indexing site of a P2P network, if the operator of that site can, under national law, be held liable for copyright infringements committed by users of that network, provided that measure is proportionate to the significance and seriousness of the copyright infringements committed, which is a matter for the national court to determine [para 84].

Comment

This is yet another thoughtful and good opinion of AG Szpunar. 

His construction of the right of communication to the public appears appropriate not only in light of pre-existing CJEU case law [and also the InfoSoc objective to provide a high level of protection], but also ... despite it. His conclusion that the presumption of knowledge adopted in GS Media should not find application in a case like the one of operators of indexing sites is in fact sensible [that the GS Media presumption of knowledge is problematic is apparent from the early national applications of this CJEU judgment in Sweden - here, here, and here -, Germany - here and here - and the Czech Republic - here].

Equally sensible [a reality check] is the consideration that in situations like TPB the intervention of its operators in facilitating the exchange of copyright works is deliberate and, indeed, essential

Big kudos to AG Szpunar. Let's now see if the CJEU agrees with him. Stay tuned!

Posted By Eleonora Rosati to The IPKat on 2/08/2017 12:43:00 pm

U.S. Copyright Office Seeks Public Comments on Moral Rights

The United States Copyright Office announced it is undertaking “a public study to assess the current state of U.S. law recognizing and protecting moral rights for authors, specifically the rights of attribution and integrity.” The Copyright Office had organized a symposium, ‘‘Authors, Attribution, and Integrity: Examining Moral Rights in the United States,’’ which took place on April 18, 2016.

It now “will review existing law on the moral rights of attribution and integrity, including provisions found in title 17 of the U.S. Code as well as other federal and state laws, and whether any additional protection is advisable in this area.”

It is seeking “public comments addressing how existing law, including provisions found in title 17 of the U.S. Code as well as other federal and state laws, affords authors with effective protection of their rights, equivalent to those of moral rights of attribution and integrity“ on several questions listed below.

General Questions Regarding Availability of Moral Rights in the United States

1. Please comment on the means by which the United States protects the moral rights of authors, specifically the rights of integrity and attribution. Should additional moral rights protection be considered? If so, what specific changes should be considered by Congress? Title 17

2. How effective has section 106A (VARA) been in promoting and protecting the moral rights of authors of visual works? What, if any, legislative solutions to improve VARA might be advisable?

3. How have section 1202’s provisions on copyright management information been used to support authors’ moral rights? Should Congress consider updates to section 1202 to strengthen moral rights protections? If so, in what ways?

4. Would stronger protections for either the right of attribution or the right of integrity implicate the First Amendment? If so, how should they be reconciled?

5. If a more explicit provision on moral rights were to be added to the Copyright Act, what exceptions or limitations should be considered? What limitations on remedies should be considered?

Other Federal and State Laws

6. How has the Dastar decision affected moral rights protections in the United States? Should Congress consider legislation to address the impact of the Dastar decision on moral rights protection? If so, how?

7. What impact has contract law and collective bargaining had on an author’s ability to enforce his or her moral rights? How does the issue of waiver of moral rights affect transactions and other commercial, as well as non- commercial, dealings?

Insights From Other Countries’ Implementation of Moral Rights Obligations

8. How have foreign countries protected the moral rights of authors, including the rights of attribution and integrity? How well would such an approach to protecting moral rights work in the U.S. context?

Technological Developments

9. How does, or could, technology be used to address, facilitate, or resolve challenges and problems faced by authors who want to protect the attribution and integrity of their works?

Other Issues

10. Are there any voluntary initiatives that could be developed and taken by interested parties in the private sector to improve authors’ means to secure and enforce their rights of attribution and integrity? If so, how could the government facilitate these initiatives?

11. Please identify any pertinent issues not referenced above that the Copyright Office should consider in conducting its study.

What are Moral Rights?

The two main moral rights provide the author of a work protected by copyright the right of attribution, that is, the right to be credited as the author of the work, and the right of integrity, that is, the right of preventing the work from being altered or distorted.

Moral rights stem from French law (le droit moral) and Article L. 121-1 of the French Intellectual Property Code still provides an author the right to respect for her name, her quality and her work. This moral right is attached to the person of the author, meaning that French law considers it a personality, a droit de la personnalité, just like the right to privacy or even one’s honor. Under French law, this right is “perpetual, inalienable and imprescriptible” and is “transferable upon death to the author's heirs. Exercise can be given to a third party by virtue of testamentary dispositions.”

Does the U.S. have Moral Rights?

This question is not easily answered. The U.S. finally joined the Berne Convention in 1989. Article 6bis(1) of Berne states that:

‘‘Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

The U.S. did not enact a comprehensive moral right law when joining the Berne Convention, but instead took the position that a combination of its laws were enough to comply with its obligations under the Convention. Amongst such law is, curiously, the Trademark Act, which Section 43(a) provides a civil action in case of false designation of origin.

However, the Supreme Court held in 2003, in Dastar Corp. v. Twentieth Century Fox Film Corporation, that origin, in Section 43(a), “refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.” The Court concluded that therefore Section 43(a) cannot be used to require attribution of uncopyrighted materials.

The 1990 Visual Artists Rights Act (VARA), section 106A of the Copyright Act, which took effect in 1991, provides “certain authors” a right to attribution and to integrity. However, while copyright protects any work fixed in a tangible medium as long as it has a modicum of originality (the itsy bitsy doctrine), only authors of works of visual art have this right.

Such works are narrowly defined by Section 101 of the Copyright Act as “a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or… a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.”

Section 1202 of the Copyright Act forbids providing false copyright management information in order to enable, facilitate, or conceal infringement, and forbids further to remove or alter copyright management information. Artists have been using this section to claim moral rights (see here).

Comments must be received by March 9, 2017.

Image is courtesy of Flickr user mrdanielweir under a CC BY-NC 2.0 license, which includes the moral right of attribution. Moral rights may be provided by contract and included in a license, such as this CC license.