SGAE investigated over "misappropriation of funds"

Spanish collecting society SGAE has featured in this weblog a couple of times. The Court of Justice ruling in Case C‑467/08, Padawan SL v Sociedad General de Autores y Editores de España (SGAE) has given quite considerable food for thought, and there's also the matter of the organisation's local battle with EXGAE.  It now seems that SGAE has been hitting the headlines again -- and not for the best of reasons.

Billboard reports that the organisation has been raided by Spanish police as part of an investigation of "misappropriation of funds".  Nine people, including president of SGAE's Board of Directors Eduardo Bautista, were detained, while offices and private homes were searched.  The investigation is said to have been triggered by a 2007 complaint filed by a number of organisations representing internet, computer and the restaurant trade; the main target is said to be SGAE's subsidiary SDAE -- the Digital Society of Authors.

Thanks, Jonathan D. C. Turner (13 Old Square), for spotting this item.

Blindsided! Will U.S. Supreme Court Patent Ruling on Willful Blindness Determine Standard for Red-Flag Knowledge Under DMCA?

The 1709 Blog has previously reported on developments in the ongoing Viacom v. YouTube litigation in the United States, in which members of the content industry sued the online video-sharing service for copyright infringement based on user's uploading of copyrighted content. YouTube prevailed on summary judgment in the trial court, and Viacom appealed. The appeal is now fully briefed, and has been tentatively scheduled for oral argument on September 12, 2011.

One of the significant issues that the Second Circuit Court of Appeals is expected to address is what constitutes "red-flag" knowledge under Section 512(c) of the Digital Millennium Copyright Act ("DMCA"). The DMCA shields internet service providers ("ISPs") from liability for copyright infringement resulting from user-generated content if the ISP meets certain conditions. Among other requirements, the ISP must not have actual knowledge of infringing material on its service, or, absent actual knowledge, the ISP must not be "aware of facts or circumstances from which infringing activity is apparent." This latter category of knowledge is often referred to as "red-flag" knowledge.

The blind leading the blind

Prior case law provides little insight into what qualifies as "red-flag" knowledge. The legislative history of the DMCA suggests that a "copyright owner could show that the provider was aware of facts from which infringing activity was apparent if the copyright owner could prove that the location was clearly, at the time the directory provider viewed it, a 'pirate' site of the type described below, where sound recordings, software, movies or books were available for unauthorized downloading, public performance or public display. Absent such 'red flags' or actual knowledge, a directory provider would not be similarly aware merely because it saw one or more well known photographs of a celebrity at a site devoted to that person."

In an early case construing the "red-flag" knowledge requirement, however, the Ninth Circuit Court of Appeals held that no red-flag knowledge arose from the fact that the defendant's clients' websites had names like "illegal.net" or "stolencelebritypictures.com." In that case, Perfect 10 v. CCBill, the publisher of adult entertainment photographs sued the provider of webhosting services and the processor of credit card payments, alleging secondary liability for infringement occurring on client sites. In contrast to the above-quoted language from the legislative history, the court held, “When a website traffics in pictures that are titillating by nature, describing photographs as ‘illegal’ or ‘stolen’ may be an attempt to increase their salacious appeal . . . We do not place the burden of determining whether photographs are actually illegal on a service provider.”

Similarly, in UMG v. Veoh, a parallel case to YouTube playing out on the opposite coast of the United States, the trial court found that Veoh’s general awareness that infringement was occurring on its video-sharing site, without more, could not support a finding of “red-flag” knowledge. It reasoned that to hold otherwise would undermine the DMCA’s purpose of enabling the robust development of the Internet and e-commerce. The court granted summary judgment to Veoh in September, 2009, and the case is currently on appeal to the Ninth Circuit Court of Appeals. The Ninth Circuit heard oral argument on May 6, 2001; a decision is expected in Veoh before YouTube is decided.

The trial court in YouTube provided virtually no analysis of “red-flag” knowledge. Indeed, the entire opinion is strikingly devoid of content. The court effectively conflated actual and “red-flag” knowledge by holding that the “tenor” of the DMCA “is that the phrases ‘actual knowledge that the material or an activity’ is infringing, and ‘facts and circumstances’ indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of prevalence of such activity in general is not enough.”

In perhaps the only case where a court has found that an ISP had “red-flag” knowledge, the United States District Court for the Central District of California in Columbia v. Fung found that the operator of a “torrent” filesharing site where users swapped copyrighted television shows and motion pictures “turned a blind eye to ‘red flags’ of obvious infringement.” The operator himself engaged in unauthorized downloads of copyrighted material from the site. Because these downloads were done outside the United States, they could not be used to establish actual knowledge, but they showed that the operator was aware that infringing material was available on the site. The operator also designed the site to categorize copyrighted content into lists with titles such as “Top 20 Movies,” “Top 20 TV Shows,” “Box Office Movies.” These lists included copyrighted works. “Thus, unless Defendants somehow refused to look at their own webpages, they invariably would have been [sic] known that (1) infringing material was likely to be available and (2) most of Defendants’ users were searching for and downloading infringing material.” Overwhelming statistical evidence also showed the prevalence of copyrighted material on the site. Thus, “the only way Defendants could have avoided knowing about their users’ infringement is if they engaged in an ‘ostrich-like refusal to discover the extent to which their systems were being used to infringe copyright.’”

Fung notwithstanding, U.S. case law has not defined what “red-flag” knowledge is. We are thus left with a regime that recalls Supreme Court Justice Potter Stewart’s famous quote regarding obscenity: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

To blindly go where no DMCA case has gone before?

Against this backdrop, the parties in Viacom v. YouTube are preparing to argue the appeal. In a late-breaking development, Viacom’s attorneys have brought to the appellate court’s attention a recent Supreme Court decision in a patent case that Viacom argues should apply in the context of the DMCA. In Global-Tech Appliances v. SEB, decided May 31, 2011, the Supreme Court construed Patent Act Section 271(b), which provides that whoever actively induces infringement of a patent is liable as an infringer. The language of the section implies some degree of intent, raising the question whether the requisite intent is the intent to induce the act that results in infringement or the intent to induce infringement itself. Put another way, does the inducer need to be aware of the existence of a patent and intend to cause infringement?

The Supreme Court concluded that the inducer must intend to induce infringement and must know of the existence of the patent. The Supreme Court went on to hold, however, that this specific intent standard can be satisfied by a showing of willful blindness, defined as (1) a subjective belief that there is a high probability that a fact exists and (2) the defendant takes deliberate actions to avoid learning that fact. The Supreme Court stated that the doctrine of willful blindness enjoyed a “long history” and “wide acceptance in the Federal Judiciary,” and was “well established in criminal law.” Consequently, the Supreme Court saw “no reason why the doctrine should not apply in civil lawsuits for induced patent infringement.”

Though briefing is closed in YouTube, Viacom wasted no time bringing this decision to the Second Circuit’s attention, arguing that the case “refutes YouTube’s suggestion that the doctrine of willful blindness cannot apply to the knowledge requirements under the DMCA because the doctrine is ‘extra-statutory.’” Without explanation, Viacom also argued that the Global-Tech opinion “refutes YouTube’s argument that recognizing willful blindness is knowledge would impose on all service providers a broad affirmative obligation to ‘seek[] facts indicating infringing activity.’” Such an obligation would run afoul of DMCA subsection (m), which explicitly provides that an ISP need not monitor its service or affirmatively seek facts indicating infringing activity.

YouTube, not surprisingly, responded that Global-Tech has no applicability to a copyright case invoking the DMCA, which contains “express provisions governing knowledge of infringement, including a specific statutory alternative to actual knowledge.” YouTube also pointed out the inherent contradiction between the willful blindness standard and DMCA subsection (m)’s refusal to impose an obligation of monitoring on ISP’s.

Any attempt to predict how the Second Circuit may construe and apply the Supreme Court’s Global-Tech opinion is an exercise in reading tea leaves. The Second Circuit’s 2010 decision in Salinger v. Colting, however, gives some insight. In that case, the author J.D. Salinger sued to enjoin the publication of an unauthorized “sequel” to his iconic novel “Catcher in the Rye” entitled “60 Years Later: Coming Through the Rye.” The trial court granted Salinger’s motion for a preliminary injunction, using the traditional test it had employed in copyright cases for decades: a likelihood of success on the merits coupled with irreparable harm to the plaintiff, with irreparable harm being presumed if the plaintiff could make a prima facie case of copyright infringement. The Second Circuit reversed on the basis of the Supreme Court’s ruling in eBay v. MercExchange, a patent case involving a permanent injunction in which the Supreme Court rejected the practice of presuming irreparable harm. Despite the different substantive context and procedural posture of eBay, the Second Circuit reasoned that the Supreme Court had relied not only on patent law, but on traditional principles of equity, as well as copyright cases, in reaching its conclusion. Thus, it rejected the trial court’s presumption of irreparable harm and remanded the case for further proceedings consistent with eBay.

As it did in Salinger, the Second Circuit could just as easily conclude that since the Supreme Court relied on criminal law and general principles involving knowledge standards, it should apply the Global-Tech standard in YouTube. On the other hand, it could conclude, as YouTube urges, that willful blindness and DMCA subsection (m) are irreconcilable. The panel of judges that will hear YouTube has not yet been announced, so it is unknown whether the panel will include some or all of the same judges that decided Salinger. Of course, however constituted, the panel may well decide the case on other grounds, leaving the state of “red-flag” knowledge squarely in Justice Potter territory.

Hot of the press: today's public consultation on copyright in Ireland

David Brophy (Partner, FRKelly, Dublin) has just stepped out of this morning's Public Consultation Meeting which was held in Trinity College Dublin to identify areas of Irish copyright law that might need reform, particularly as regards fair use/fair dealing. He reports:

"This morning around 70 people turned up to a public consultation on copyright reform in Ireland. The meeting was chaired by Dr Eoin O'Dell from Trinity College Dublin (http://twitter.com/cearta), who heads up a copyright review group set up earlier this year by the Irish Government (see earlier 1709 posting here). The group has been asked to identify areas of Irish copyright law that pose barriers to innovation particularly in the digital environment, with a view to making recommendations to resolve any problems identified.

The terms of reference include both amendments to Irish law and the identification of areas where EU directives may need amendment, with specific reference to whether a US-style fair use provision might be needed.This morning's meeting began with three presentations based on experiences of those operating in the current environment.

• Brian Fallon of online news website http://thejournal.ie described how his organisation operates and how it differs from US-based news sites such as Google News, Digg and Bleacher Report (a sports site). He expressed the view that such sites could never have been founded in Ireland due to the fact that aggregation of news content and photos would be seen as copyright infringement in Ireland.

• T. J. McIntyre, a practising solicitor, law lecturer and digital rights activist who runs
http://digitalrights.ie, spoke of how the EU database right is being used by website owners (who argue their websites constitute databases) to prevent extraction and reutilisation of data by price comparison sites. He also pointed to the interface with contract law, such as was seen in the Irish High Court case of Ryanair v Billigfleuge.  The Court held in that case that the terms and conditions on Ryanair's website, which were accessible from a link at the bottom of the page, were binding on visitors to the site, and that this could be used to prevent practices such a screen scraping and deep linking.  T. J. McIntyre suggested that even without involving EU reform, it was open to Ireland to legislate on the interface between contract and copyright law.

• Finally David Cochrane, founder of discussion group http://politics.ie spoke of how his team of 15 moderators spend significant time dealing with copyright infringement issues: users tend to wish to discuss current news items and commonly seek to do so by posting either a link to the item (which is encouraged), or copy/pasting the text of a newspaper article (which is prohibited by their terms of use but happens all the same).  Certain users, unable to find the article they wish to discuss online will take a photo of the newsprint page and post that instead. 

The discussion was then opened to the floor.  Several contributors were from the journalist community, working either as photographers or reporters, and they were almost uniformly against any adoption of fair use provisions.  From this observer's viewpoint, they were also uniformly in the dark about how the US courts actually apply fair use.  

For instance one freelance news photographer opined that if fair use were introduced, her career would be over.  Fair use (she said) would effectively mean that nobody would pay for her photos.  The same contributor also questioned why she should be required to email a site such as http://politics.ie if her photo appears there without permission - she suggested that the onus should be on the website to police her copyright and remove infringing work without her having the burden of asking or identifying the infringement.  Finally, and to some scattered applause, she offered the slogan "Fair use is never fair" which appeared to strike a chord with fellow reporters.  Enough said ... apart from this observation: the Review Group had specifically asked for evidence-based rather than anecdotal contributions.  On the evidence, there is no reason to believe that the USA's fair use system has made freelance photography untenable in that country or that such photographers cannot get paid for their work. 

Similarly, a number of print journalists, including a freelancer, a speaker from the National Union of Journalists, and a spokesman for National Newspapers of Ireland, suggested that fair use was effectively a licence to infringe copyright.  The NUJ spokesman made reference to the recent Righthaven decision in which reposting an entire article was deemed fair use. The case against fair use was supported by IRMA (i.e. the major record labels collecting society) and by the Irish Film Board, who suggested that fair use was open ended and provided no certainty, unlike the European closed list of fair dealings. 

Other notable contributions came from a speaker from the National Library of Ireland who was supported by a speaker from the Library Association of Ireland, who asked for clarity and certainty on digital archiving of work, so that they might be available a hundred years from now, and on the law relating to unpublished works.  Rob Corbet of Arthur Cox noted that in addition to the current consultation, the Department is currently running a parallel consultation on the issue of allowing content owners to obtain injunctions against ISPs, and questioned why the two issues were not being considered together given the obvious overlap. 

In the closing remarks, T. J. McIntyre made what was (to this writer) the best-informed contribution on fair use.  He corrected the view that the fair use evaluation is entirely open ended (he was the only speaker acknowledging that there is a statutory test of four factors), and noted that the Righthaven decision is something of an outlier, it being uncommon for reposting an entire print article to be permitted as fair use.  He also noted the drawback with using the closed-list of fair dealings: it cannot cater for unforeseen new uses of work, just as the issues raised by search engines or Google Books could not have been catered for under the Berne Convention or the Statute of Anne.

Hats off to Eoin O'Dell for chairing the meeting in an even-handed manner and for gently prising some riders off their hobby horses to keep the discussion on track. He stressed repeatedly that this meeting was a place to air views, but that it was equally crucial for interested parties to make written submissions to the Group (email them at copyrightreview@djei.ie).  Once the views are received (the deadline is July 14) these will be summarised in a discussion paper on which further comments will be invited."

Thanks so much, David -- this is hugely appreciated!

Georgian Authors' Society opts to monitor unauthorised sales

Always a useful source of news from Eastern Europe, the Petosevic newsletter reports ("Georgian Authors Society to Monitor Audio-Video Stores and Piracy Websites", 21 June 2011) that the Georgian Authors’ Society plans to start actively monitoring all stores selling audio and audiovisual material, and all websites offering pirated material in Georgia, with an aim to putting an end to the illegal distribution of music files and computer software in that country.

According to local estimates, unauthorised downloading of movies, games and mp3 tracks has caused a 30-40 percent drop in demand for CDs and DVDs, despite a range of tariffs which is quite steep for local inhabitants, where the average monthly income of a family in 2005 stood at just US$200; fines currently range from  205 euro (US$300) to  1,235 euro (US$1,800) for unlicensed use, rising to between 1,235 euro (US$1,800) and 2,060 euro (US$3,000) for repeat offenders.

The Georgian Authors’ Society Director Giga Kobaladze is quoted as hoping that, within 6-12 months, the majority of illegal discs will disappear from the market, adding that the legislation clearly defines the sanctions against the illegal use of audio and audiovisual material, but that consistent monitoring has never been carried out. It is likely that monitoring will bring some sort of result pretty soon, since it is believed that the vast majority of sales outlets for recorded materials sell unauthorised products.

The National Intellectual Property Centre (SAKPATENTI) welcomes this initiative, noting that there is an urgent need for improving copyright protection.

Google settlements as a genre: an holistic approach and the hippo in the bath tub

"Online Distribution of Copyright Works: Judge Chin Rejects Google Books Settlement" is the title of an article just published in the CPI Antitrust Chronicle, 2 June 2011 (CPI stands for 'Competition Policy International,' by the way).  The authors, Isabel Davies (Consultant,Boyes Turner) and Holly Strube (a solicitor with the same firm), examine the rejected Amended Settlement Agreement which Google and its counterparts reached and conclude that

"The time has come to look afresh at copyright issues in particular, and IP issues in general, and agree on a structure to deal with these challenges on a holistic basis, perhaps by moving forward with multinational supplementary agreements. 

It is not suggested that multinational co-operation will be easily achieved but, in our view, this process must begin without delay. Certainly Google has served notice that it continues its interest in developing its business in this area and doesn’t intend to cease its activities ..."

I agree that a holistic approach is needed and feel that it should be able to encompass not merely the copyright and competition/antitrust issues but also, to the extent appropriate, the knock-on effect on hard copy and electronic publishing, the retail book sector, the information-supplying industries and -- perhaps most importantly in the long term -- the advertising sector.

To put it in terms of a metaphor, we should ask not just whether the hippopotamus will fit into the bath tub but what precisely happens to the water it displaces: whether the hippo fits or not is an entirely different issue from whether there's room in the tub for anyone else once the hippo's in it, whether there's any water left after the hippo gets out, who gets soaked or where the surplus water runs off to -- but all these effects need to be accounted for.  If the hippo's application to occupy the bath tub is judged solely by the criterion of whether it fits, these other issues remain troublesomely unaddressed.

BT flood warning to High Court

BT has warned the High Court that if an injunction to block access to the Newzbin2 website were to be granted, it would be the ‘thin edge of the wedge’ opening the floodgates to content owners desperate to prevent sites pointing to pirated content. BT told the court that it could face up to 400 applications for injunctions in the next year if the Motion Picture Association (MPA) prevail in an action against the UK telecoms giant.

The MPA has applied for an injunction as part of a long running legal battle with Newzbin, which provides links to content on the Usenet network, and the MPA say that in particular the site links to hundreds of unlicensed movies. In an earlier High Court battle (Twentieth Century Fox v Newzbin) the content owners were successful and Mr Justice Kitchen handed down a significant judgment holding that the Usenet indexing site was ‘liable to the claimants for infringement of their copyrights because it has authorised the copying of the claimants' films; has procured and engaged with its premium members in a common design to copy the claimants' films; and has communicated the claimants' films to the public.’ The judge ordered the website to introduce filters to stop others from linking to unlicensed films. After that court victory Newzbin went offline, only to relaunch as Newzbin2 from Sweden. The former owners of Newzbin claim they now have no connection with the new site, which is allegedly run by a group called Team R Dogs.

The MPA now wants to force BT and other ISPs to stop users accessing the site. The injunctive relief is being looked for despite the fact that provisions of the Digital Economy Act which were drafted to allow for injunctive relief were put on hold by last minute amendments to the Act - in effect removing the right to injunctive relief under that Act. The MPA is using section 97A of the UK Copyright, Designs and Patents Act, which provides for possible injunctions against internet intermediaries. Section's 97A is the UK's implementation the EU Copyright Directive, which has not previously formed the basis for legal action in this country but it has been used to force ISPs to block sites involved in distributing pirated content in Denmark and there are cases pending other European countries. In May this year a German court has granted the MPA preliminary injunction against the (current) Germany-based Web hosts of file-sharing hub The Pirate Bay, CyberBunker. Spain has passed the reintroduced legislative proposals known as the SINDE law which it easier for content owners to target copyright infringing websites and will offer a fast-track system for content owners to take action against commercial websites that exist primarily to assist others in their illegal file-sharing offline.

Richard Spearman QC, acting on behalf of the MPA, told the court that if a blocking order is granted, they will demand that UK ISPs, including BT, TalkTalk and Virgin Media, blacklist the website or face court action. He told the court that there was now "no other way of impeding the infringement of copyright" than to obtain a court order. "[Newzbin2] allows repeat and mammoth-scale copyright infringement," Spearman said. "If BT could not see that happening then they have to be the biggest ostrich in history."

BTs legal representatives said: "Rights holders in the music and movie industries have already identified 100 copyright infringing websites which they would like to see blocked. Claimants would [also then] seek orders blocking access to websites alleged to contain defamatory allegations or private and confidential information".

http://www.guardian.co.uk/technology/2010/dec/16/mpa-bt-newzbin2 and see http://the1709blog.blogspot.com/2011/02/year-of-intermediary.html

Performers to get new instrument, but will it still be the same old tune?

The definition of audiovisual performance will be
interesting. Belarus tennis star Victoria Azarenka's
televised grunts have been recorded at 95 decibels

At the end of last week, the World Intellectual Property Organization (WIPO) excitedly proclaimed a big breakthrough in terms of international consensus over a topic that has long been beset by sticking-points.  The title of WIPO's media release gives the game away a little -- it's "Agreement on Transfer of Rights Paves Way to Treaty on Performers' Rights".

"WIPO’s top copyright negotiating body will recommend to the September session of the General Assembly to resume a Diplomatic Conference on the Protection of Audiovisual Performances after agreement on the last outstanding issue relating to the transfer of rights. The convening of a diplomatic conference signals entry into the final phase of treaty negotiations, with the objective of concluding a treaty that would shore up the rights of performers in their audiovisual performances [words like 'final' and 'concluding' have a definite end-of-the-process sound to them, but the real end of the story is when WIPO members not only ratify the treaty but actually implement its provisions within their domestic law.  This blogger wonders what proportion of performers in the world today will still be alive when the treaty trickles down from Olympus to the mere mortals below]. 

A diplomatic conference on the protection of performers in their audiovisual performances held in 2000 made significant progress with provisional agreement on 19 of the 20 articles under negotiation. Negotiators at the time did not agree on whether or how a treaty on performers’ rights should deal with the transfer of rights from the performer to the producer and suspended the diplomatic conference.  Member states at the Standing Committee on Copyright and Related Rights,[better known as SCCRR] meeting .. were able to reach agreement ..., thereby paving the way for the conclusion of a treaty.  

The adoption of a new instrument would strengthen the position of performers in the audiovisual industry by providing a clearer legal basis for the international use of audiovisual works, both in traditional media and in digital networks.  Such an instrument would also contribute to safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video [for many, the real question is how to safeguard their rights against unauthorised exploitation via the social media, but this is a problem faced on a far wider scale than at the level of audiovisual performances alone].   

Performers such as, singers, musicians, dancers and actors have enjoyed international protection for their performances since the adoption of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention) in 1961. In 1996, the adoption of WIPO Performances and Phonograms Treaty (WPPT) modernized and updated these standards to cover the rights in respect of the use of their audio performances on the Internet [this is the problem, though: it's easier to cover rights than to find a practical means for their enforcement]. The Rome Convention and the WPPT, however, grant protection mainly in relation to sound recordings of performances. ..."

This blogger feels particular sympathy for performers, especially the very many of them who cannot make a professional living through the commercialisation of their performances. He naturally cannot criticise the content of a Treaty which he has unsurprisingly yet to read.  However, he can hear a chorus of the words "Too little, too late" racing round inside his head and it will take some effort to dislodge them.

Policy Forum: IPR in the age of the Internet

Last Thursday, 16 June 2011, the Institute for European Studies organized a Policy Forum on “IPR in the Age of the Internet”.  Trisha Meyer (Doctoral Researcher at the Institute for European Studies, Vrije Universiteit Brussel) has kindly prepared a little note on the Forum for the 1709 Blog, and here it is:

"IPR in the age of the Internet

Intellectual property rights (IPR) play a crucial role in our knowledge-based economy and have received a high level of protection and attention in the European Union. Around 30 individuals participated in this event, which brought together two speakers -- an EU policy officer and an academic -- to discuss the European Commission's recently launched IPR strategy.

This strategy, published on 24 May 2011, seeks to address key opportunities and challenges for IPR in the Digital Single Market: it also sets out an ambitious collection of activities that are underway, or planned, to deal with copyright, IPR enforcement, and interaction with parties outside of the EU. The Commission's IPR strategy needs to be placed clearly in the context of several key EU broad policy areas: the Europe 2020 strategy and the Digital Agenda being the principal two.

In this Policy Forum, first Ms Elaine Miller, policy officer in DG Internal Market & Services, shared the European Commission's view on the future of copyright in the EU. She started her speech by pointing to the difficult position from which the European Commission starts: the general public perception of copyright is negative, copyright is still territorial and the Internet is ubiquitous. The aim of the IPR strategy is to set out a coherent approach to intellectual property rights at a European level, harnessing and reforming the legislation already in place. Ms Miller then expanded on some key actions which the European Commission will take over the next years in the area of copyright: a legislative proposal on orphan works; a proposal for a legal framework to increase transparency and governance in collective rights management and to facilitate multi-territory/pan-European licensing of music; a green paper on online distribution of audiovisual content; the appointment of a mediator to explore ways to harmonize the administration of private copying levies; and the possible review of the 2001 copyright in the information society directive, with the option of moving towards further harmonization of copyright through the creation of an EU copyright code.

Next, Prof Tuomas Mylly from the University of Turku, an expert in IPR and competition law, provided comments on the IPR strategy from an academic perspective. He argued that a long-term perspective needs to be applied to any new strategy: IPR today regulate core communication processes and interactions between individuals on the Internet. Prof Mylly emphasized that constitutional values, such as the right to communication, are at stake in the IPR strategy and critiqued the lack of harmonization of exceptions and limitations to copyright at the level of the EU. Further, he questioned the defense of strong IPR by the European Commission, based on rigorous application of competition law. He advocated a utilitarian approach to IPR, similar to the UK tradition, which considers IPR as a temporary monopoly and necessary evil. He explained what a more economic, as opposed to the Commission's proprietarian approach to IPR could look like. He also discussed some concrete actions mentioned in the IPR strategy and was particularly positive about the Commission’s openness towards the development of a unitary European copyright title.

Both the presentation and the commentary, and the fruitful debate that took place after the speeches, raised many more topics for investigation, including a discussion on the interests involved in policymaking, and the final ambitions of EU-level copyright legislation. All parties agreed, however, that only open debate and deliberation will lead to a balanced IPR strategy fit for the age of the Internet.

This Policy Forum took place at the same time as the European Commission's first Digital Agenda Assembly. It was thus an extremely opportune moment to discuss these issues, as reform of copyright is a key action (planned actions 1 through 6) in the Digital Agenda. Indeed copyright needs to be adapted to the digital era in a way that gives authors a fair remuneration for their works and also allows users to make full use of the Internet for creation, distribution and consumption. The interventions from various participants during the Policy Forum showed that this is a controversial and complex debate. Given the constraints already in place at the various levels of governance both inside and outside of the EU, there is a long way to go in order to achieve a fair and just framework for intellectual property rights at the EU level".

Thanks, Trisha, for your efforts!