Waiting for the approval of the EU Directive on copyright in the Digital Single Market

By Eleonora Rosati writing on the IPKat

Roman Kats

A little over a year ago the European Commission released its proposal for a Directive on copyright in the Digital Single Market [Katposts here], which is currently being discussed in the European Parliament.

The content of the proposed directive has attracted substantial commentary, particularly with regard to provisions intended to introduce a new neighbouring right for press publishers (Article 11) and obligations for hosting providers in the context of what has come to be known as the ‘value gap’ problem (Article 13).

Last week Professor Lionel Bently (University of Cambridge) and Associate Professor Valeria Falce (Università Europea di Roma) were in Rome to discuss the content of the proposed directive.

Here’s what they think:

“After a tortuous journey and conflicting opinions amongst the EU institutions (the Commission, the Committees of the European Parliament, the Council), the approval of the draft Directive on copyright in the Digital Single Market is around the corner.

The goals are sound: to adapt copyright to the digital ecosystem and the challenges of new technologies; to strengthen the effectiveness of rights and to promote an enriched relationship between the authors/publishers and the general public; to safeguard a "free and pluralistic press" and to guarantee "quality journalism and easy access to information for all".

The key challenges are shared by the different parties: addressing the radical changes brought by the digital economy, which overwhelm the publishing industry and requiring adaptation of traditional business models; facilitating circulation of works and the licensing system; and allowing publishers and authors to participate with “equal arms” in the value chain.

The proposed solutions to these problems are however controversial, as the Commission, Council and Parliament swing between compromise attempts and sudden reevaluations.

Lionel Bently

The divisions are most pronounced in relation to two provisions of the proposed Directive: i) Article 11 — with which the European Commission proposes to introduce a new right in favour of press publishers to ensure the sustainability of the sector against new forms of exploitation promoted by aggregators and online operators; and ii) Article 13 — through which it is intended to control platforms and Internet Service Providers (ISPs) that host and make available content.

Article 11 is inspired by similar rules recently introduced in Germany and Spain. Experience with these regimes as yet does not suggest that the proposed reform will do much to sustain newspaper publishing or the quality of local journalism. Outside Italy, the point has been made that many of the difficulties facing publishers can be more proportionately solved by a presumption that they hold rights in the content of their publications, rather than through the creation of a new “ancillary right” in any “fixation of a collection of literary works of a journalistic nature”, with the uncertainty necessarily attendant on ascertaining the scope of such right. From an Italian perspective, Article 11 does not add much to the legal framework.

Different difficulties arise from the current wording of article 13 and its associated recitals. Many of these difficulties derive from the fact that the proposal seeks to intervene in a complex legal ecosystem, where there are established instruments (the 2000 eCommerce Directive, the 2001 InformationSociety Directive, the 2004 Enforcement Directive and a raft of jurisprudence of the Court of Justice of the European Union (CJEU) which has interpreted these through the lens of fundamental rights as recognized in the EU Charter.

First and foremost, the definition of legal entities to which the new obligations apply, is hopelessly uncertain. Article 13 refers to “information society service providers that store and provide to the public access to large amounts of works or other subject matter uploaded by their users,” and thus hands over to the CJEU the unenviable task of identifying whether “large” implies 200 items or 200,000  or somewhere in between. The draft JURI Committee Report sensibly seeks to replace “large amounts” with a criterion relating to the character of the activities rather than the volume of content. That amendment would limit the application of the provision to information society service providers that are actively and directly involved in the making available to the public of user uploaded content and where this activity is not of a mere technical, automatic and passive nature.

Valeria Falce

Secondly, the proposed Directive states that these operators "should take appropriate and proportionate measures to ensure the protection of such works (…) for example through the use of effective technologies." The provision refers to the filtering and content tracking techniques already used in other industries, such as the music industry. However, the CJEU has already held (twice) that such technologies are incompatible with Article 15 of the eCommerce Directive and fundamental rights and freedoms of the platforms and their users (including their personal data). For this reason, amendments in several of the Parliamentary Committees and in the Council Working Party would delete specific reference to filtering technology, which appears to be the only acceptable way forward.

Thirdly, the proposal uses the terms “communication to the public” without clearly referencing Article 3 of the Information Society Directive, where it relates to a distinct concept. Implicitly insisting on the conclusion that any service provider that stores and provides access to the public to subject matter uploaded by their users is “communicating to the public,” Recital 38 ignores the CJEU’s instruction that every case should be assessed on its facts. Nor can any assumption be drawn from the recentPirate Bay decision [see here] that hosts that store largely lawful material, but also some unlawfully uploaded subject matter (prior to receiving take down notices) are liable of copyright infringement for communicating the unlawful material to the public. Indeed, the CJEU has stated that communication depends on an awareness of the effects of an intervention (a criterion that is hard to fulfill when the host is unaware of the material that has been uploaded).

A similar objection can be made in relation to the manner in which Recital 38 appears to promote a particular interpretation of Article 14 of the eCommerce Directive, which offers certain hosts immunity from financial liability as regards illegal material. While the CJEU has emphasized the importance of knowledge and control over then content as the key matters that transform a host into someone to whom the immunity is inapplicable, the Commission controversially implies that the immunity vanishes as soon as a host is involved in any “optimization of the presentation of materials or promotion of such.”

Ultimately, while the Commission appears to pursue a clear objective (reviewing the set of responsibilities) through a bold framework, because the proposed Directive lies within a network of pre-established instruments Article13 is likely to become a legislative bull in a fragile legal china-shop. It will at the very least introduce “large amounts” of uncertainty, or, worse, obscure the obligations of the subjects involved.”

Posted By Eleonora Rosati to The IPKat

THE COPYKAT

It's been a busy few days!

Another US lawsuit has been added to the mounting litigation against Spotify and the streaming platform's alleged failure to pay mechanical royalties in the USA for the right to 'copy' a song (rather than the 'perfoming' right).  In fact there have been three developments: an objection to Spotify's proposed settlement of the original class action on this issue, a rebuttal of its most recent legal arguments, and a brand new lawsuit. Hypebot's take is this: "The recorded music industry is in the midst of a renaissance thanks to revenue from a single source - streaming. But a growing string of lawsuits filed by songwriters and publishers, and an aggressive new legal tactic by Spotify, threatens the company's pending IPO and could derail the industry's delicate recovery"

Chance The Rapper at Hovefestivalen by Rashid Akrim / NRK

Three-time Grammy-winning Chance the Rapper (Chancellor Bennett) is being sued for copyright infringement. The suit was filed by Abdul Wali Muhammad on in the Illinois District Court. Muhammad is a musician-turned lawyer, who copyrighted the composition of ‘Bridge Through Time’ in 1979.  Muhammad’s claim rests on Bennett’s sampling of his composition in the track ‘Windows’ from his debut mixtape as Chance, 10 Day.  Whilst the use of copyrighted material is fairly obvious, Bennett’s particular approach to the music industry makes the case interesting. Bennett wrote 10 Day after being suspended from school in 2011. ‘Waves’ was released in December 2011 and soon after Complex listed him as one of ‘10 New Chicago Rappers To Watch Out For’ in February 2012. The mixtape itself was only self-released on DatPiff.com in April 2012. Since then it has been downloaded for free 538,617 times. It will be interesting to see how this develops. 

"There's a tattoo as a design, and then there's that same tattoo after it's inked on the human body. Tattoo artists often copyright their tattoos. But does that copyright stick once the image is inked on the human body?" A useful update on Ars technica looks at the interesting world of copyrght and tattoos and Solid Oak Sketches action against Take-Two Interactive Software, makers of  the highly popular NBA 2K game series based on the claim that Take-Two is infringing its copyrighted works because the game shows players incuding LeBron James abd Kobe Bryant with their real-world inked tattoos that Solid Oak Sketches created - and copyrighted in the US.  Even if the tattoos are copyrightable, Take-Two argued that it has a fair-use right to show the players with their tattoos, which are not a prominent feature of the video game. "Solid Oak's profit-making litigation should be halted in its tracks by dismissing Solid Oak’s copyright claim as a matter of law under the de minimis use and fair use doctrines," Take-Two claims.More on Ars Technica here and on this Blog here and here and the IPkat here.  

China's National Copyright Administration (NCAC) has told music companies operating in China that they must stick to market rules, and that all market players must adopt international practices to widen licensing and spread online music. The NCAC told an assembly of over twenty companies that they must work together to avoid giving exclusive music copyright to online music providers. The administration also underlined the laws and international conventions on copyright, warning companies against infringement. The NCAC said that music companies must not allow online music providers to bid up licensing prices, and must support the work of copyright organizations to protect the rights of copyright holders, especially lyricists and songwriters. They should also set up a more effective framework for licensing, cooperation and operation of online music copyright to improve order and for the industry to prosper, the NCAC said.

China's top legislature has passed a  law to protect the nation's national anthem and to ensure appropriate use of the song. The law was adopted after a second reading at the bimonthly session of the Standing Committee of the National People's Congress. China's national anthem is "March of the Volunteers," has lyrics by poet Tian Han and music by Nie Er. The song will only be allowed at formal political gatherings, including the opening and closing of NPC sessions, constitutional oath ceremonies, flag raising ceremonies, major celebrations, award ceremonies, commemorations, national memorial day events, important diplomatic occasions, major sport events and other suitable occasions. It will be illegal to use the national anthem during funerals, "inappropriate" private occasions, commercials or as background music in public places. The law says that violators, including those who maliciously modify the lyrics or play/sing the national anthem in a distorted or disrespectful way, can be detained for up to 15 days or held criminally liable.

US TV star Dr. Phil is involved in a novel copyright decision Involving a woman who has alleged he falsely imprisonmed her: Leah Rothman, a former director on his show, used her iPhone to record nine seconds of outtakes to possibly aid herself in a legal battle. Rothman alleges suffering emotional distress and false imprisonment when, during a meeting, Dr. Phil locked the door, yelled profanities and threatened employees for supposedly leaking internal information to the press. Before she brought her action, Rothman says she attempted to get evidence by accessing a database of videos from the Dr. Phil Show archives and using her iPhone to record a nine-second clip of magterial she thought would be valuable to her litgation. But now a court has concluded that his wasn't 'fair use' with U.S. District Court Judge Rodney Gilstrap saying “Rothman did not copy to then educate the masses or to further the greater good. She copied to aid her pending lawsuit seeking money damages where she is the only plaintiff and sole potential beneficiary.” Therefore, Rothman could not hide behind fair use. This isn't the typical copyright story! 

The creator of Pepe the Frog has stepped up his fight against far-right activists who appropriated the cartoon character as a meme. Matt Furie has vowed to "aggressively enforce his intellectual property" after the character he created for a comic strip was plastered across social media and even merchandise, particularly by fans of US President Donald Trump as he fought his election campaign. Eleonora has posted an update on the IPKat here.

Taylor Swift may is facing a new copyright challenge over her 2014 hit “Shake It Off". Songwriters Sean “Sep” Hall and Nate Butler are suing Swift, arguing that the lyrics for “Shake It Off” borrow too heavily from “Playas Gon’ Play,” a 2001 song they wrote for the R&B trio 3LW.  Musician Jessie Braham having previously accused Swift and her co-writers of lifting lyrics from his song 'Haters Gonna Hate'. The claim failed. And two Canadian songwriters have filed a lawsuit alleging copyright infringement against country superstar Carrie Underwood and others. The lawsuit alleges Ronald McNeill and Georgia Lyons-Savage composed the chorus, melody and lyrics to a song called, “Something in the Water” in August 2012. The pair say they completed a vocal mix of the demo in September 2012 and pitched it to Underwood’s team, who declined to use it on her album. But according to the lawsuit, a song by the same name ended up on Underwood’s 2014 “Greatest Hits” album.

And finally and just in case you missed these two big stories ......

"We Shall Overcome" was labelled by the US Library of Congress as “the most powerful song of the 20th century”. It was a unifying anthem for the 1940s labour protests and the 1960s Civil Rights Movement led by Dr Martin Luther King, and came to symbolise the spirit of protest.  Now a federal judge has struck down the copyright for part of the civil rights anthem saying that the song’s adaptation from an older work, including changing “will” to “shall”,  was not original enough to qualify for protection.  Judge Cote said “This single word substitution is quintessentially trivial and does not raise a question of fact requiring a trial to assess whether it is more than trivial … The words ‘will’ and ‘shall’ are both common words. Neither is unusual” adding "The fact that a trivial change to the lyrics became a part of a popular version of a song does not render that change nontrivial and automatically qualify the popular version for copyright protection". More from George Chin here.

Is it the end of the 'monkey selfie' case? It seems so!  The People for the Ethical Treatment of Animals has settled its federal lawsuit that sought to establish the right for animals to own property - in this case the black macaque Naruto's right to own the copyright in a selfie taken with photographer David Slater's equipment in Indonesia. In a joint statement PETA and Slater say: "PETA and David Slater agree that this case raises important, cutting-edge issues about expanding legal rights for non-human animals, a goal that they both support, and they will continue their respective work to achieve this goal. As we learn more about Naruto, his community of macaques, and all other animals, we must recognize appropriate fundamental legal rights for them as our fellow global occupants and members of their own nations who want only to live their lives and be with their families. To further these goals, David Slater will donate 25% of future gross revenue from the Monkey Selfie photographs to charitable organizations dedicated to protecting and improving the welfare and habitat of Naruto and crested black macaques in Indonesia." This may be the end of this case, but is ot the end of the story? If the monkey cannot be the author, but does that mean that Mr Slater owns the copyright in the picture taken by the monkey? And if he doesn't - who does?

More on the settlement here.