Wednesday 16 April 2014

The CopyKat - hoping to find a new public

It seems that 84% of all the content Spanish internet users consumed in 2013 was - well - illegal. The statistics come from a new report from a coalition of music, film, publishing and gaming firms who will no doubt be looking for the Spanish government to further step up its anti-piracy efforts. With that in mind, the Reports says that 28% of surveyed Spanish web users admitted to illegally downloading music on a regular basis, while over 40% access films illegally. Spain’s Ministry Of Culture played down Report saying their report was just a “rough opinion study commissioned by interested parties”.

In Saudi Arabia Arab News reports that the Ministry of Culture and Information has closed down 72 shops in Riyadh for copyrights violations of video games, movies and selling unlicensed software, local media reported. Ali Al-Bishi, head of the Copyrights Department in the ministry said that inspection teams had discovered instances of violation of copyrights and sent orders to close down 72 shops  periods ranging from seven to sixty days. The process authorizes a copyright violations committee to impose fines ranging from a minimum of SR7,000 (£1,115) to a maximum of SR50,000 (£8,000). Decisions can also include compensation for infringement, permanently closing down store and 'naming and shaming'. 

Out in the field:  a new public?
Gizmodo tell us that "the US Copyright Office recently proposed a seemingly small addition to copyright law that bears some huge implications. It wants to enable copyright holders to protect unauthorised versions of their work from hyperlinks. You read that right: It could soon be illegal simply to link to certain content." That set their comments section on fire with one saying "Aren't hyperlinks the entire point of the internet?" whilst another mooted the Congress would see sense despite the lobbying efforts of the MPAA and the RIAA on behalf of the film and recorded music sectors adding "Hyperlinks are just a means of directing someone to a work. There is no copying and no supply of a copy. Before the Internet, you could tell someone where to go to find an infringing book or album or painting and the mere act of telling them wouldn't be copyright infringement. Hyperlinks do exactly that, albeit more efficiently". Readers will remember the recent Court of Justice of the European Union decision in  Svennson that held that the provision on a website of clickable links to works protected by copyright and  freely accessible on the ‘original’ website, constitutes an act of “communication to the public” as meant in article 3(1) of the Copyright Directive BUT to infringe, the communication must be directed at a “new public,” meaning a public that was not taken into account by the copyright owners when they authorized the initial communication to the public - so when providing hyperlinks to freely accessible (digital) works on a website, no permission from the copyright owners is required.

Party in a park - another new public?
I was pondering how an analogy to Svensson might be applied to that thorny issue of Sky TV's lucrative live transmissions of Premiership football in the United Kingdom  - and any possible ramifications on the decision in the Karen Murphy case which also went all the way to the CJEU andthen back to the Hugh Court and Court of Appeal, and  which found that Ms Murpy could use a Greek Nova decoder card herself to watch live football - but it's debatable if this can extend to public showings in her public house. Now then, is that because this is a communication to a 'new public' ?

Back in October 2011 I mused thus: Copyright MIGHT protect the FAPL though - for the protected elements of any programme: I am not convinced Karen Murphy is safe to show the NOVA feed in public as the ECJ said that this is communicating the public and a pub screening would be an unlawful, profit-making communication to the public of copyright works it would not have been taken into account or considered by the authors of the protected works. She can own the decoder and buy the NOVA service for her private use. 

One public is behind this goal
But where are we now? The Premiership (FAPL) make their content available in the UK via Sky as well as making it available live via other broadcasters elsewhere in the EU, and the content is therefor available to all Europeans. So who might a new audience (a new public) be? And why should Karen Murphy's customers be included (or excluded)? Remember the CJEU said this when applying competition law "A system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law": Surely the public FAPL must had in mind is the whole of Europe. Now, unlike the material and content in Svennson, Sky's transmissions are protected by technology - as are most (all?) of the other European broadcasters carrying live Premiership football, and so decoders and decoder cards are needed: but does this matter? Ms Murphy did have a 'paid for' decoder card for her pub in Portsmouth - just one from Nova in Greece - not Sky in the UK: So, surely (and please DO shoot me down) it's arguable that the FAPL must accept that by allowing the signal to go out live anywhere in the EU, pan-European stylee, means that neither the Sky Audience nor the Nova audience can then be a 'new public' - because they are one public. One public, which comprises all (football loving) Europeans (with decoders).  With at least 100 British pubs using foriegn decoders to show live Premiership football  facing actions by FAPL, it's still an important question - and this blogger wonders where this one will go. And let's not forget Eleonora's very relevant December 2012 post on the Court of Appeal's musings in particular on the S72(1) defence on the IPKat - it's well worth a re-read and can be found here as is the paper on Communicating to the Public by Enrico Bonadio and Mauro Santo.

Back in January four people in the USA were charged in connection with pirate apps developed for Android devices. Now all four of these defendants have pleaded guilty to charges of conspiracy to commit criminal copyright infringement.

And finally, Google has called for content licensing in the European Union to be simplified: In its submission to the European Commission's public consultation on the review of copyright rules Google says: "We believe the [European] Commission should consider appropriate means of ensuring that rights that cover a single act of exploitation are licensed together" Google said in the response to the Commission's review of the EU copyright framework; "The lack of a single license for a single act of exploitation is an historical remnant, an attempt to use approaches to licensing analog products for digital ones" and has said that it is wrong that businesses should have to pay separate royalties to cover each of the "multiple rights" protected by copyright when making single use of that material - singling out digital music licensing and the role of collection societies for particular criticism saying music licensing was outdated and "structured by right holders as if a digital act of exploitation is a mixture of pressing a compact disc implicating the mechanical reproduction right and broadcasting implicating the performing rights/communication to the public right" and "In territories where different collecting societies administer each right, each society wants to be paid for the same activity by claiming that separate rights are implicated, including rights that have no independent economic value" adding "A collecting society in charge of managing the right of making available might claim royalties for the act of simply loading files to a server connected to the internet, even if no one ever accesses those files."  More on Out-law here.

1 comment:

Anonymous said...

You suggested in your January post and suggest in this post that the issue of communication to the public has not yet been resolved by the High Court. It has. See the judgment of Kitchin LJ following the CJEU ruling [2012] EWHC 108. The s.72 defence (upheld by the CA [2012] EWCA 1708) applied only to the films included in the broadcasts, and not to artistic works. Thus, the Defendants in the QC action were liable for communicating the artistic works to the public, and an inquiry as to damages was ordered.