Copyright at Fordham, and an event reminder

Now that the Fordham extravaganza is (sadly) over and I am back in the UK after an overnight flight from New York to London that was probably shorter than the time spent travelling - alas, without films, not even this - from Heathrow Airport to King's Cross Station because of the Tube strike, it is time to spend a few words on what this invariably engaging conference said about our beloved copyright world.
  Starting with EU copyright, I was asked to provide an overview of the case law of the Court of Justice of the European Union (CJEU) over the past year. If have done my maths correctly, just in the period October 2013-April 2014 the CJEU issued 8 copyright rulings: 

• 3 October 2013 - Case C-170/12 Pinckney [here and here];
• 19 December 2013 - Case C-202/12 Innoweb [here. To be pedantic this case concerned the database right, but perhaps it may still be considered as part of the copyright galaxy]; 
• 23 January 2014 - Case C-355/12 Nintendo [here and here]; 
• 13 February 2014 - Case C-466/12 Svensson [here, here and here];  
• 27 February 2014 - Case C-351/12 OSA [here]; 
• 27 March 2014 - Case C-314/12 Telekabel [here]; 
• 3 April 2014 - Case C-387/12 Hi Hotel [here];
• 10 April 2014 - Case C-435/12 ACI Adam [here and here]; 

Back after a productive afternoon
in the 5th Avenue
or a copyright trip to the CJEU? 

In these cases, the CJEU touched upon several copyright issues, including:

• Scope of copyright exlcusive rights (Svensson; OSA);
• Exceptions and limitations (ACI Adam);
• Enforcement, with regard to jurisdiction and damages (Pinckney; Hi Hotel) and remedies, notably measures (blocking injunctions) that may be imposed on internet service providers (Telekabel);
• Circumvention of technological protection measures (Nintendo);
• Database right and meta search engines (Innoweb);
• National systems for collective management of copyright and related rights (OSA);
• Relationship between EU copyright directives (Nintendo);
• Room left for national initiatives in areas affected by EU copyright directives (Svensson; ACI Adam)

These cases addressed - but also raised - significant issues. However, what I found most striking of all these recent rulings is that there the CJEU quashed quite a few national laws. It did so in Svensson in relation to Swedish understanding of the communication/making available rights; it did so in OSA in relation to a specific non-InfoSoc copyright exception in Czech law; it did so in ACI Adam in relation to Dutch private copying exception.

This - I believe - prompts the following questions: Did Member States understand what EU law - notably the InfoSoc Directive - required them to do when transposing relevant directives into their national laws? Or - rather - is the CJEU currently committed in a (policy) plan to deepen harmonisation of national copyright systems?

Besides recent CJEU case law and policy action - or rather: lack thereof - at the Commission level, I also took part in a panel on orphan works and extended collective licensing, which was particularly timely, considering that:

• The deadline for implementing the Orphan Works Directive is approaching (it is 29 October 2014);
• The UK orphan works regulations are on track for adoption in October 2014 [here's my critical analysis of the UK move];



A gentle and
subtle reminder

• The US is also considering whether to legislate in the area of orphan works [especially following the Google Books ruling last year: has it overcome the very issue?] and extended collective licensing.  

Other copyright panels dealt with the relationship between fair use and freedom of expression [here]; copyright revision around the world [here]; enforcement [here]; and the forthcoming US Supreme Court decision in ABC v Aereo [here].

As 1709 Blog readers may know already, on 6 May [yes, that is next week!] I am holding an event in central London [hosted by Olswang LLP] to discuss all these issues with copyright enthusiasts interested in the implications of current and future copyright developments. The good news is that you may still register! Just click here. 

Fordham 2014: Aereo

Moderated by David Carson (IFPI), the final copyright session of the 22nd Fordham IP Conference was devoted to the forthcoming decision of the US Supreme Court in ABC v Aereo [an entire session on this? Of course, because - compared to the EU - Americans are rarely blessed with copyright rulings from their highest judicature].

What is this case about? In a nutshell and as neatly summarised by the US Supreme Court Blog, it concerns whether a company “publicly performs” a copyright-protected television program when it retransmits a broadcast of that program to thousands of paid subscribers over the internet.

The first speaker was Jacqueline C. Charlesworth (US Copyright Office), who reviewed the parties’ positions in this case, as well as the views of the US government, that - as 1709 Blog will know already - sided against Aereo.

Would even views from non-US-based 
people be beneficial to US matters 
discussions?

Then, Joseph C Gratz (Durie Tangri LLP, San Francisco) highlighted how, since the dawn of television, consumers have had a fundamental right to watch over-the-air broadcast television via an individual antenna, and they have had the right to record copies for their personal use since the Sony decision in 1984. These are rights that should be protected and preserved, and copyright law should not curtail them simply because you don't like Aereo or one is using modern, cloud-based equipment.

After Gratz, it was the turn of Robert K Kry (MoloLamken LLP, Washington DC). He argued that the Aereo case has evoked extreme positions on both sides, and that - instead - there is a strong case for a middle ground, ie that the Second Circuit's transmission-based interpretation in Cablevision was correct but that Aereo should lose even under that standard.

The panelists were Irene Calboli (Marquette University Law School, Milwaukee), Jane C Ginsburg (Columbia Law School, New York), and Terry Hart (Copyright Alliance, Washington DC). The latter highlighted that discussion around this case has mostly focused on potential impact on technology (notably cloud computing) and consumers, but that not much has been said about impact on creators.

We'll see what the US Supreme Court decides in this case. For the time being, I cannot help but notice that this panel was 100% made in the USA. Would have views from people working outside the US been beneficial to a discussion on a US case? Vive la diversité ... or not?

Fordham Report 2014: Enforcement

The average Fordham copyright enthusiast
getting in the mood
for the enforcement session

The second copyright session of this afternoon at the 22nd Fordham IP Conference [again: do not forget that 6th May is the day of my Post-Fordham Copyright Catch-Up event] was moderated by David Carson (IFPI) and dealt with enforcement issues.

The first speaker was Jane C Ginsburg (Columbia Law School, New York), who examined ISP liability and website-blocking in the EU, following the recent decision of the Court of Justice of the European Union (CJEU) in Telekabel [here], as well as earlier rulings in Scarlet [here] and Netlog [here]. She recalled that Article 8(3) of the InfoSoc Directive must be balanced against Article 3 of the Enforcement Directive and Article 15 of the E-Commerce Directive, and also highlighted the relevance of Charter fundamental rights [see paras 45-47 of the Telekabel decision for some CJEU discussion on this very point] to enforcement discourse. Despite the ambiguities of the Telekabel decision, she concluded that filtering measures would not be compatible with EU law.

Then, Karen R Thorland (MPAA) discussed how different copyright regimes have designed and implemented notice and takedown systems, which she considered as just one means to help reduce infringement. There are statutory regimes, regimes set through case law, and others that are the result of voluntary agreements. Going into details, Thorland reviewed the information that notices must include; obligations of intermediaries upon receipt of notices; the consequences of sending improper notices; and effectiveness of the various systems in actually removing infringing material from the internet. She also mentioned the case of Italy as the first country in Europe to provide for an administrative website blocking procedure [earlier this week, AGCOM issued its first blocking order: see here]. 

#Quentincometoeurope as an enforcement
(or lack thereof) case study?

After that, it was the turn of Alexander Tsoutsanis (Institute for Information Law (IViR), University of Amsterdam, and DLA Piper) to discuss the recent Svensson decision (and prior to this, the opinions of the European Copyright Society and ALAI), and his paper Why copyright and linking can tango.

The presentations were followed by discussion with the audience and panelists Kristina Janušauskaitė (IFPI), Jan Bernd Nordemann (Boehmert & Boehmert, Berlin) and Silke von Lewinski (Max Planck Institute for Intellectual Property and Competition Law, Munich). 

Unexpectedly and without much explanation, at a certain point the IPKat #Quentincometoeurope campaign was displayed on the screen: #Fordhamgetspolitical? 

Fordham Report 2014: Copyright revision around the world

Common expression of the average
copyright aficionado
at Fordham this morning

Some copyright, at last! Following a copyright-free morning in which copyright enthusiasts felt a bit lost - not to say like a fish out of water -, the second and final afternoon at the 22nd Fordham IP Conference [again: do not forget that 6th May is the day of my Post-Fordham Copyright Catch-Up event] started with a yummy session moderated by Michael S Shapiro (United States Patent and Trademark Office - USPTO) devoted to discussing copyright reform projects around the globe.

The first speaker was Jacqueline C Charlesworth (US Copyright Office), who explained the US Copyright Office's take on music licensing, aka as "the most complex and fragmented of all areas of copyright law". The main question she addressed is how to reconcile the statutory framework - which she considered outdated, inefficient and overly complex, far from being a one-stop shop system - with emerging business models, technology growth, consumer behavior, and the exclusive rights of authors in the context of current US copyright review debate, which Bob Goodlatte announced a year ago. In particular she focused on the public performance right [which US law does recognise but to a limited extent], statutory licenses, blanket licenses, micro-licensing, consent decrees, rate-setting, data standards, and the investment in, and development of, new products and delivery platforms. 

Following Charlesworth, it was the turn of Shira Perlmutter (USPTO). She discussed the recent 99-page USPTO Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy. The key conclusions of this study are that: (1) copyright is key to US economy; (2) there is no need for a complete re-write of the 1976 Copyright Act; and (3) a good copyright system and a vibrant internet are not at odds with each other. She then focused on specific issues, including remixes [which she called a sub-set of user-generated content] and mashups, first sale doctrine in the digital environment [remember ReDigi?], and statutory damages in personal file-sharing.

A pair of glasses that can only belong
to Australian Copyright Council's Fiona Phillips

Then David Carson (IFPI) provided an overview of copyright reform projects outside the US, notably Europe - at both the EU [here] and Member States' (UK, Ireland [here, here, here] and France) levels -, Australia [here] and Hong Kong [the latter is currently considering introducing an exception for parody, satire, caricature and pastiche], and outlined the common themes - in particular whether US-style fair use [but which fair use doctrine? He submitted that current interpretation of fair use, eg Cariou v Prince, is different from what fair use used to be, say, 20 years ago] should be imported into these laws - as well as different approaches that have arisen in the course of these processes. 

Finally, it was the turn of designated audience members Mihály Ficsor (Hungarian Copyright Council), Howard P Knopf (Macera & Jarzyna LLP, Ottawa), invariably fashionably dressed Fiona Phillips (Australian Copyright Council, Sydney) and Steven Tepp (Sentinel Worldwide, Washington DC) to make their comments before the general discussion.  

From the audience, Mr Justice Richard Arnold asked whether US copyright reform is going to take into account criticisms of non-compliance with international instruments and lack of moral right protection. The response of Perlmutter was: "everything is [awesome and] on the table". Another comment came from a Disney employee who said that, if you wish to see what bad evidence for copyright reform means, just consider the case of the UK ...

Fordham Report 2014: Fair Use and Freedom of Speech

As 1709 Blog readers who also follow the IPKat will surely know, the 22nd Fordham IP Conference is currently taking place in the heart of beautiful Manhattan [and 6th May is the day of my Post-Fordham Copyright Catch-Up, for which you may register here]. Yesterday I was in two panels discussing EU copyright developments and orphan works, respectively. While I will report on those panels very soon, here we go with a report from yesterday's last copyright session. This dealt with a very fashionable topic, this being the relationship between copyright and freedom of speech/expression.

Despite the title, this session was not completely US-focused, and indeed I very much enjoyed the talk by Hon Mr Justice Colin Birss (Chancery Division, High Court, London) on Article 10 of the European Convention on Human Rights (freedom of expression) and its potential role in expanding copyright exceptions in Europe.

The copyright engine

Moderated by Melissa Moriarty (VaynerMedia, New York), the session began with a presentation by Sean M O’Connor (University of Washington School of Law, Seattle), who highlighted how First Amendment's free speech values are part of the copyright engine, notably through fair use and the idea/expression dichotomy. After playing I Wanna be Sedated [was this some wishful thinking considering that it was the last session of the day?] by Ramones, he argued that well-established copyright/free speech balance should not be changed just because online content dissemination has made users' engagement [read: user generated content] with protected works so easy.

Hon Mr Justice Colin Birss spoke next. He recalled that, when he started practicing IP in 1990s, nobody spoke of human rights in relation to IP. Things have now changed, and human rights discourse has entered IP, in particular copyright. This is a piece of property [see also Article 17(2) of the Charter of Fundamental Rights], which is protected as a fundamental right in itself. So the question is how to best balance property (copyright) with freedom of expression values. It is the legislator's job to craft copyright exceptions to struck such a balance. However, some guidance may come from Article 10 itself, which sets a distinction between ideas (that should be protected within freedom of expression) and their expression (that fall within the scope of copyright). This means that under the Convention there is room for drafting broader copyright exceptions, certainly broader than what current UK copyright law allows. So, for instance, if you look at cases like those of search engines that provide snippets of texts, you may well argue that under current EU copyright this activity may be probably infringing. However, it may be argued that snippets merely provide information (not protectable expressions) and that under Article 10 they should be protected as an exercise of one's freedom of expression.

Pamela Samuelson (University of California, Berkeley, School of Law, Berkeley) spoke on the topic of appropriation and transformative use cases. She started by highlighting that 'transformative uses' may have three meanings under US law: (1) altering expression so as to convey new meaning; (2) productive uses, usually of literal copies; (3) uses for different purposes. She then considered the case of appropriation art and Cariou v Prince [here]. She concluded by mentioning that there is a number of cases (a notable example being Garcia v Google) in which copyright is used to achieve non-copyright goals. Answering a question from the audience, she noted that the outcome of the Google Books case [here] is consistent with US case law on fair use.

Fair use countries (green);
fair dealing countries (blue);
other countries (grey)

Then Bernt Hugenholtz (Faculty of Law, University of Amsterdam) spoke of the need for flexible limitations and exceptions in the EU. The principal question of his talk was whether droit d'auteur (continental Europe) traditions can accommodate fair use. He answered in the affirmative, and highlighted why more flexibility is needed. The reason is three-fold: (1) accelerating pace of technological change; (2) legislature cannot respond, but must anticipate change by embracing more abstract, open norms; (3) EU harmonisation is a lengthy process. After recalling why droit d'auteur traditions have been traditionally wary of fair use, he explained why things have somehow changed: (1) civil law has moved to more open norms; (2) authors right systems have been moving away from natural law arguments to justify copyright protection; (3) fair use is not unpredictable [but it is not so widespread either: see map]; (4) fair use does not conflict with the Berne three-step test. He concluded by recalling that Article 5(5) of the Wittem Group's Copyright Code may be a good start for injecting flexibility into the law.  

Ron Lazebnik (Fordham University School of Law, New York) was the final speaker, and he addressed the question 'Who decides what a fair use is on the Internet?' by looking into Capitol Records v Vimeo and Viacom v YouTube.