THE COPYKAT

The UK's Intellectual Property Office has said it has plans to simplify the way websites which contain copyright infringing material are blocked - currently the system is based on injunctive relief that must be obtained from a court - giving orders are often easy to circumvent. In a statement the IPO confirmed that the UK government was now considering "the evidence for and potential impact of administrative site blocking - as opposed to requiring a high court injunction in every case - as well as identifying the mechanisms through which administrative site blocking could be introduced". The IPO's announcement also covered their position on devices that came pre-loaded with apps that can be used to easily access infringing streaming and other content - something of real concern to the entertainment and sports sectors. The government's IP Minister, Sam Gyimah, said that recent criminal prosecutions of individuals concerned with the distribution of devices that enable infringement showed the  current law to be working, but he said that education of the public and the involvement of Trading Standards officers would be followed up, as would new new anti-piracy measures such as administrative site blocking.

As of the end of October, six of the eleven “Trans Pacific Partnership" member states had ratified the Trans Pacific Partnership 11 Agreement.  The agreement will go into effect in two months’ time on December 30 this year. The amendment of Japan's copyright law will be effective on the same day, and the statutory term will be extended to life + 70 years from January 2019, including for those creators whose copyrights would have expired on December 31, 2018. The Diet's Upper House approved the move to match US (and EU) law, and the provision has been retained even though the United States government has withdrawn from the TPP agreement (at least for now).  What is interesting is how the "war extension" in copyright law might (or might not) be accommodated. 

Lucien Greaves, spokesmen and co-founder of The Satanic Temple ("TST"), has tweeted that the Temple is taking legal action against Netflix in connection with the "Chilling Adventures of Sabrina". TST has decided to take this route because of what Greaves claims is copyright infringement. He claims the statue of Baphomet in the hall of the school depicted in the show is a copy of TST’s deity.

From Hell to Heaven? Led Zeppelin have asked the Ninth Circuit appeals court to reconsider its recent ruling in the "Stairway To Heaven" copyright lawsuit 'en banc' to determine the law in the case that involves allegations that the 1971 classic is rip-off of the 1968 instrumental song "Taurus" recorded by Spirit and written by Randy "California" Wolfe's whose estate brought the claim. The group's representatives argue that by overturning the original judgement, the appeals court could "cause jurors to find infringement just because the same unprotected elements are present, upsetting the 'delicate balance'" between copyright protection and the freedom of music creators to employ common techniques and musical elements when composing music" and "if uncorrected," the Ninth Circuit's recent conclusion will "allow a jury to find infringement based on very different uses of public domain material" which, it then argues, "will cause widespread confusion in copyright cases in this circuit."  You can compare the two recordings here and a very interesting analysis by TJR here.  'Top 10 Sound Alike Songs' here. 

Seven sports photographers have been given another chance to pursue copyright allegations against the National Football League (NFL) in the U.S. The World Intellectual Property Review reports that the NFL had asked that the US Court of Appeals for the Second Circuit hold an en banc rehearing of the matter, which was decided against the NFL last month - this has been denied. The 2013 complain relates to claims by the photographers against 
against the NFL, all 32 NFL teams, the Associated Press (AP), and image companies Replay Photos and Getty Images that the defendants exceeded the terms of original licence agreements that granted limited use of certain images. The case was filed in the US District Court for the Southern District of New York (image: C Watts). 

And finally, Lyor Cohen is the latest YouTube executive to take aim at the planned reforms to EU Copyright Law, and in particular Article 13. An ex-record label man himself, Cohen is now YouTube’s global head of music and he posted a warning about the new Copyright Directive saying “Let me be clear: we understand and support the intent of Article 13. We need effective ways for copyright holders to protect their content” adding “But we believe that the current proposal will create severe unintended consequences for the whole industry. We still have a couple of weeks to work together towards a better final version of the law. The music industry should really pay attention to these unintended consequences - the system that largely contributes to their success is at risk of major change in the European Union”, opining that "Remixes and covers, tutorials, fan tributes, parodies" were all at risk, and that "these are such powerful promotional tools for the industry". More on the Verge here.

Recommendation on measures to safeguard fundamental rights and the open internet in the framework of the EU copyright reform

by Eleonora Rosati writing on the IPKAT

Further to the release of the European Commission’s Proposal for a Directive on Copyright in the Digital Single Market, the discussion has focused on a number of aspects. The proposal to remedy the so called ‘value gap’ (Article 13) [Katposts here] has attracted significant attention and commentary.

Together with a group of scholars active in copyright issues, Professor Martin Senftleben (Vrije Universiteit Amsterdam) has published a Recommendation on measures to safeguard fundamental rights and the open internet in the framework of the EU copyright reform.

Professor Senftleben explains more in detail the content of the proposal.

Here’s what he writes:

 “Article 13 of the Proposed Directive on Copyright in the Digital Single Market (DSMD) and the accompanying Recital 38 are amongst the most controversial parts of the European Commission’s copyright reform package. Several Members States (Belgium, the Czech Republic, Finland, Hungary, Ireland, the Netherlands [here] and Germany [here]) have submitted questions seeking clarification on aspects that are essential to the guarantee of fundamental rights in the EU and to the future of the Internet as an open communication medium. 

A closer analysis of these questions in the light of jurisprudence of the Court of Justice of the European Union (CJEU) shows that the measures contemplated in Article 13 DSMD can hardly be deemed compatible with the fundamental rights and freedoms guaranteed under Articles 8, 11 and 16 of the EU Charter of Fundamental Rights. The application of filtering systems that would result from the adoption of Article 13 DSMD would place a disproportionate burden on platform providers, in particular small and medium-sized operators, and lead to the systematic screening of personal data, even in cases where no infringing content is uploaded. The filtering systems would also deprive users of the room for freedom of expression that follows from statutory copyright exceptions, in particular the quotation right (Article 5(3)(d) of the InfoSoc Directive) and the right to parody (Article 5(3)(k) of the InfoSoc Directive).

The adoption of Recital 38 DSMD would moreover lead to a remarkable restriction of eligibility for the liability privilege following from Article 14 of the E-Commerce Directive. Recital 38 DSMD does not adequately reflect the current status quo in the area of the safe harbour for hosting laid down by Article 14 E-Commerce Directive. Instead, it takes the assessment criteria of “promoting” and “optimising the presentation” of user-generated content out of the specific context of the L’Oréal/eBay CJEU decision. The general requirement of “knowledge of, or control over” infringing user-generated content is missing. In the absence of any reference to this central requirement, Recital 38 DSMD is incomplete and fails to draw an accurate picture of the current conceptual contours of the safe harbour for hosting.

Furthermore, there can be little doubt that according to the CJEU, Article 15 of the E-Commerce Directive is fully applicable to user-generated content platforms and intended to shield these platforms from general monitoring obligations. The Court’s jurisprudence shows clearly that an obligation to filter any information uploaded to the server of a platform hosting user-generated content would lead to a prohibited general monitoring obligation and be incompatible with Article 15 of the E-Commerce Directive.

In general, the Commission Proposal and subsequent Council Presidency Compromise Proposals confuse and mix different legal questions by bringing together the issue of the scope of the safe harbour for hosting under Article 14(1) of the E-Commerce Directive, and the issue of whether (and when) platform providers themselves carry out an act of communication to the public and fulfil the requirements of Article 3(1) of the InfoSoc Directive.

Looking for a safe harbour

Considering the criteria which the CJEU developed in the context of Article 3(1) of the InfoSoc Directive, it becomes moreover apparent that the mere act of storing and providing access to the public is not sufficient to establish copyright infringement. Recital 38 would dismiss additional infringement criteria that have evolved in the jurisprudence of the Court. Because of the ambiguous wording of Recital 38 DSMD, there is a real risk of modifying the notion of “communication to the public” considerably.

These findings shed light on the need to clarify service provider immunity instead of further complicating the legal assessment criteria. A further clarification of applicable rules should extend the principle that is already reflected in the EU acquis, namely that providers are not liable for users’ actions which they cannot reasonably be expected to know and control (Articles 12 to 14 of the E-Commerce Directive). A further clarification of this rule is advisable to pave the way for a uniform application of service provider immunity throughout the internal market. In the interest of legal certainty and a higher level of harmonization, a well-structured European legislative design of the “notice and takedown” procedure should be introduced, accompanied by an appropriate “counter notice” procedure.

In addition, it would be consistent with the existing acquis to introduce a new use privilege in favour of the creation of content remixes and mash-ups by users and the further dissemination of these remixes and mash-ups on online platforms. As a countermove, online platforms with user-uploaded content could be responsible for the payment of fair compensation. They could either pass on these additional costs to their users, or use a part of their advertising income to finance the payment of fair compensation. To generate an additional revenue stream for authors and performers, this alternative solution is clearly preferable. It does not encroach upon fundamental rights and freedoms, and leaves intact the safe harbour for hosting in Article 14 of the E-Commerce Directive.”