Monday 5 December 2011

Music and IP conference report: 1

Some forms of sharing
incur no liability at all ...
This year's Music and IP conference, organised by CLT Conferences, took place as usual in the splendid setting of London's Prudential Building, now fortuitously reconstituted as a suite of offices and conference facilities. First to speak was Fredericka Argent (IFPI), who took the audience through the problems in copyright enforcement which led to the passage of the UK's Digital Economy Act 2010. The Act was predicated on statements in EU Directives to the effect that internet service providers (ISPs) were often better placed than copyright owners to deal with infringements. Fredericka explained the basis of the Act's graduated response to file-sharing. Using date-and-time stamps, ISPs can identify which subscriber is the owner of an IP address at the time of infringement, which enables the right person to be targeted. Once targeted, responses can be ratcheted up, from educational notifications to full-blown legal action.

After outlining the key provisions of the Act, Fredericka reviewed the intended cost-splitting aspects of enforcement: 75% of the enforcement cost is generally to be borne by rights owners, the other 25% by the ISPs. She also reviewed provisions of the Ofcom code which seek to address the regulatory aspects of enforcement, time limits, the content of notification (giving some examples) and the record-keeping responsibilities of ISPs which will enable copyright owners to bring proceedings. Data must be deleted after 12 months, regardless of whether proceedings have been brought in respect of an IP address's owner or not.

Everything, said Fredericka, has been "completely mired in process" and there has been no progress at all in implementing the Act's provisions.  This is not surprising, given further government reviews of online copyright issues and the legal challenge to the Act's scheme by ISPs BT and TalkTalk (on which you can read Fredericka's post on the IPKat here). Fredericka reviewed the grounds of challenge by a judicial review -- and the grounds on which they have so far almost entirely failed (an appeal is now pending, adding to the sense that we are all in limbo).

Fredericka then turned to website blocking, which is increasingly used as a popular alternative to blocking internet access to users. The British version of this was the order Newzbin2, though the UK government doesn't propose to bring forward website blocking measures since rights owners can obtain such orders through a court of law -- even though this is very expensive.

Following Fredericka was Robert Lundie-Smith (McDermott Will & Emery), on "What's New ,What's on the Way: a European Perspective". Robert covered three topics relating to references made to the Court of Justice of the European Union for preliminary rulings. Starting with the topic of fair remuneration of rights holders for private copying -- which remains an option within the EU (and one which the UK has not opted for) -- Robert explained the recent ruling in Case C-462/09 Thuiskopie v Opus on whom should fall the onus of collecting a levy where blank media were "exported" from Germany to the Netherlands by being "imported" by each individual purchaser. The Court of Justice reasoned that the foreign seller should be made to pay, since by charging individual Dutch purchasers for the purchase of their recording media they would be making the individual purchasers pay. The fact that the seller was not located in the levy-collecting country was irrelevant. The Dutch law requires the manufacturer or importer" to pay the levy, so Dutch law will have to be applied or amended in order to effectuate the Court of Justice ruling. This ruling, Robert felt, could have implications for post-Hargreaves treatment of private copying.

The next case discussed was Case C-70/10 Scarlet v SABAM, in which the Court of Justice had to consider the validity of a Belgian court order that an ISP monitor the content of sites it hosted in order to determine whether file-sharing infringed copyright or not. There were also some non-IP arguments here, relating to the freedom of businesses to conduct their business and to data protection. The Court of Justice had no doubt that the Belgian order had gone too far, as its ruling makes plain.  But how far does this ruling affect the pending judicial review of the Digital Economy Act? We shall soon find out.

The third issue discussed by Robert was that of "communication to the public", as reflected in Case C-162/10 I v Ireland (on which see earlier post here).  PPI objected that Irish law exempted hotels etc from paying for music piped into guests' bedrooms under the Rental Directive. The Advocate General, following the Court's ruling in Case C-306/05 SGAE, considered that there is communication to the public by making music available to guests and that hotels, by supplying the equipment by which guests received the music, were the users who were liable to make the payment. The Irish government's argument that, since one payment had already been received for broadcasting a work, no further payment was necessary, was rejected. On the same issue, Case C-135/10 SCF Consorzio Fonografici v Marco Del Corso, a reference from Italy regarding the playing of music in dentists' surgeries, was also discussed. Do the facts that the music is ancillary to dental work, and are not chosen by the patient, lead to a different conclusion? No, it appears: the patient in the dental chair and the guest in his hotel room are essentially the same.

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