AG Campos provides reasonable interpretation of the right of communication to the public in his Opinion in Renckhoff

The work at the centre of this litigation

Does the inclusion of a work [the photograph on the right hand side] — which is freely accessible to all internet users on a third-party website with the consent of the copyright holder — on a person’s own publicly accessible website constitute an act of communication to the public within Article 3(1) of the InfoSoc Directive if the work is first copied onto a server and is uploaded from there to that person’s own website?

This is the question that the Court of Justice of the European Union (CJEU) has been asked to address in Land Nordrhein-Westfalen v Renckhoff, C-161/17.

This morning Advocate General (AG) Campos Sánchez-Bordona delivered his Opinion [not yet available in English], and answered in the negative.

Let’s see what happened.

Background

Well, the background is quite ... ridiculous (in the sense that it is ridiculous that litigation is brought in the first place in instances like the present one), and also the AG seemed to agree.

At the very outset, in fact, he observed that not long time ago, school research and work on posters used to be accompanied by photographs, prints and drawings published on books and journals/magazines and hanged on the walls of schools (so to allow parents to view them), “without the authors of those images seeking compensation for their use” [NOTE: all direct quotes are my own translations from the Italian version of the Opinion]. Things have changed and, nowadays, the images used are digital and the resulting school work/research is uploaded on freely accessible websites.

This is indeed what happened in this case to a schoolgirl, who found an image of the city of Cordoba online and used it for an assignment for her Spanish class, providing acknowledgment of the website from which she had downloaded the photograph (though not of the photographer, because the website where the photograph appeared did not provide any). Upon finishing her work, she and her teacher uploaded it online … but the photographer [in my view it might be even questionable that the work is protected by copyright in the first place; although the parties to the national litigation agreed that the photograph is protected, the AG also had his doubts: see further below] came forward claiming infringement of his copyright in the photograph, and that he had just granted a licence to use to the image to the website from which the pupil had downloaded it.

Litigation has ensued all the way up the German Federal Court of Justice [!!], which has decided to stay the proceedings and refer the question above to the CJEU.

The AG Opinion

Preliminary remarks

Before even starting his own substantial analysis, the AG noted that the notion of communication to the public has been “already subject to several decisions of the Court”. Yet, “the current reference shows that the interpretative questions of national courts have not been fully solved yet” [this is indeed true … in terms of numbers, the CJEU is fast approaching its 20th decision on Article 3(1) of the InfoSoc Directive].

Then, the AG noted that the way the referring court has phrased the question requires the CJEU to only consider the construction of the right of communication to the public, not also the issue of reproduction [of course, by downloading the photograph and re-uploading it, the schoolgirl made acts of reproduction].

As mentioned, the AG did not find it straightforward to say that a photograph like the one at issue would be protected by copyright. Nonetheless, pursuant to the freedom left to Member Sates [but not all took advantage of this possibility, an example being the UK] by Article 6 of the Term Directive to protect ‘simple photographs’, it would appear that – at least under German law – such photograph would be protected.

Notion of communication to the public: an ‘act of communication’

The AG then turned to the construction of Article 3(1) of the InfoSoc Directive.

In relation to the need for an ‘act of communication’, the AG noted that one should consider “the indispensable role played by the user and the deliberate nature of its intervention” [here the AG directly referred to GS Media, on which see here]. Such criterion requires to consider both subjective elements relating to the behaviour of the user [the AG referred to GS Media to highlight how the Court has been taking into account also such elements] and objective circumstances, as the user’s act must give access to or facilitate access [this is a very important point relating to Article 3(1), which the CJEU has particularly elaborated in its judgments in Filmspeler – a case in which the AG was once again Campos; see my take here – and Ziggo, on which see here] to a work.

Whilst it is true that both the schoolgirl and her teacher were aware of the consequences of their behaviour when they posted the photo online, ie granting access to a work, it would be wrong not to consider: (1) the accessory character of the photograph as an element of a broader work; (2) the fact that the photograph was already freely accessible and had been published with the author’s consent; and (3) the educational context in which the act of communication occurred, ie without any customers or profit-making intention.

The AG observed that in a case like the one at issue, unlike GS Media, one should not consider whether the pupil and her teacher knew that the original photograph had been published or not with the consent of the author, but rather whether they should know that, to reproduce a third-party photograph, they needed the author’s consent. The AG answered in the negative, holding that one should bear in mind that: A) those who act without a profit-making intention do not usually act with full knowledge of the consequences of their behaviour; and B) the work communicated by the user was already lawfully and freely accessible on another website.

If the factors to which the arguments above refer to subsist, then “there is no communication to the public”. However, this is NOT the case when the the righholders notifies the user that the work to which it gives access is unlawfully available online or when the access granted by the suer circumvents protection measures.

All this considered, the AG found that:

·       There was no mention of who the author of the photograph was on the website from which the pupil had downloaded the photograph;

·       The photograph was easy to obtain, as there were no restrictions (whether technical or related to the terms of use) on such website.

These elements might have led the pupil and her teacher to believe that the photograph was free to use by the public.

This conclusion is not the same as thinking that there are no rights on such photograph. However, in cases like the one at issue, the user “may presume that the author does not object to the limited use of such images, for educational purposes” [para 78 – this is correct both in light of CJEU case law and, more banally but not necessarily a given, in terms of common sense]

The AG continued, holding that any different conclusion would lead to “limiting the use of most information available online. Such limitation could affect freedom of expression and information as per Article 11 of the EU Charter. Furthermore, in the present case such limitation would affect the right to education as per Article 14(1) of the Charter.” [para 79]

AG Campos Sánchez-Bordona

The AG also held the view that lack of a profit-making intention is more relevant than what the referring court appears to think. Here the AG recalled the GS Media presumption as applied to for-profit link providers to hold that – in case there were any doubts – for users without a profit-making intention it is necessary to demonstrate their knowledge of the unlicensed character of the work linked to. And the lack of any warning should be read, according to the AG, as reinforcing the idea that neither the pupil nor her teacher had full knowledge of the protected character of the work and the need to seek the author’s authorization.

Notion of communication to the public: same technical means and a new public

The AG then turned to consideration of whether in the present case the work has been made available to a ‘new public’, in that the technical means used for the original and the allegedly infringing communication was the same.

The AG ruled out that there would be a new public in this case: “As the photograph is easily and lawfully (ie with the consent of the rightholder) available to all internet users, it is unclear how the intervention of a pupil and her teacher may be decisive so that a greater number of persons access” the work [para 100].

The AG also rejected the idea – advanced by some commentators – that the ‘new public’ criterion would amount to an undue exhaustion of the right of communication to the public, which would be as such contrary to Article 3(3) of the InfoSoc Directive: “It is, instead, the logical consequence of the way in which the holder of the rights to the photograph has consented to its use, knowing or having to know that lack of any protection against the reproduction of the image could lead internet users to believe that it was freely available to the public” [para 104].

It is not too much to ask a professional, when he/she publishes a work online, personally or through third parties, to adopt the appropriate measures, also of a technical nature, in order to clarify his/her copyright and the will to control the circulation of his/her own work” [para 105]. This does not reduce the high level of protection that authors are entitled to.

In any case, one can always seek the removal of one’s own work if he/she believes that its use is prejudicial [para 107 - here the AG does not elaborate further, but it seems that this is an argument to strengthen the conclusion that the online publication of a work does not amount to a weakened copyright protection, or even the ‘exhaustion’ of one’s own rights].

Also applicable to copyright protection ...
possibly one of the main points
of the AG Opinion

The role of exceptions

The AG then recalled that, in any case, educational exceptions might be available. If Germany has transposed Article 5(3)(a) into its own law, then account should be given of the fact that the EU Charter recognizes the right to education as a fundamental right. This should guide the correct application of the relevant exception, including ensuring that this fundamental right is not unduly compressed. In any case, in the case at issue, also compliance with the three-step test appears ensured.

Comment

This looks like a reasonable Opinion in the context of a fairly unreasonable claim, as well as a good interpretation of CJEU case law on the right of communication to the public. 

Two particular points are worth making.

The first one is that the AG Opinion is a helpful reminder that copyright protection should be balanced against other fundamental rights, including the right to education.

The second point relates to the construction of the right of communication to the public, and in particular the 'new public' criterion. It will be important to see if the Court, like the AG, addresses the criticism that the 'new public' criterion has resulted in an exhaustion of the right of communication to the public. The interpretation provided by AG Campos appears sensible, and suggests that - similarly to the case of other IP rights (eg trade marks and the steps to be taken against 'genericide') also copyright protection comes with certain 'responsibilities' on the side of rightholders. 

Let’s see if the Court agrees …

Academic outrage at appeals court fair use ruling

Georgia State University

There have been some grumbling in US academia after a federal appeals court overturned a decision in the District Court which a number of academics had found clear and understandable - and of course somewhat favourable to their own, their students' and their institutions' benefit!  As one commentator put it "The U.S. Court of Appeals for the 11th Circuit revoked the quantitative benchmarks previously used in determining what constitutes “fair use” of copyright material  — a decision which could have implications down the road for colleges and universities and their use of electronic resources."

The District Court's decision had recognised that colleges and universities can legally create digital reserves of books in their collections.  Judge Orinda Evans had ruled that de minimis use of copyrighted texts (such as when a faculty member posts a work but no student ever accesses it) is not a violation of copyright, and that in most cases, using one chapter or 10 percent of a book would meet the fair use test.  The appellate court for  Georgia, Florida and Alabama was not so generous,  deciding in favour of a more individual case-by-case evaluation of what is considered fair use, "potentially making it more difficult for instructors to ascertain how much material they are permitted to scan and distribute through online course sites to students."

Academics and librarians said that provisions for fair use were created to allow academics to share and expand upon each other’s publications without paying restrictive fees. But in a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit  in Cambridge v. Patton rejected a broad ruling on how to determine fair use. One academic website noted "The decision guarantees the case has a long and litigious road ahead of it by reversing the district court’s opinion and sending the case back for further deliberations" and "Rather than strike a decisive blow against fair use, the legal concept that places some limits on the rights of copyright holders, the appeals court instead issued a stern warning against quick-fix, one-size-fits-all solutions to legal disputes - specifically, the idea that copying less than a chapter or 10 percent of a book automatically protects an institution from a lawsuit" - a so called 'bright line' guideline. 

Academic librarians and their lawyers have described the case as a "nightmare scenario. Barbara Fister, a librarian at Gustavus Adolphus College, suggested that the plaintiffs had lost sight of their missions, which include furthering education and scholarship. Having posted an article on his institutions's website in 2011 before either decision,  Kevin Smith, the director of scholarly communications at Duke University said that a broad holding in the plaintiffs' favour would have "catastrophic consequences" either limiting the information that students can read or greatly increasing the cost of higher education.

The case revolves around a challenge by several publishers against Georgia State University’s electronic reserve systems, where faculty members and librarians would scan in excerpts of books for students to access digitally, "a technological improvement over the traditional practice of leaving a copy or two on reserve at the library circulation desk". The publishers claimed mass copyright infringement and claimed that Georgia State University engaged in "systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works" through its e-reserves system while Georgia State cited the fair use provisions of Section 107 of the Copyright Law.  The court said “Like many recent issues in copyright law, this is a case in which technological advances have created a new, more efficient means of delivery for copyrighted works, causing copyright owners and consumers to struggle to define the appropriate boundaries of copyright protection in the new digital marketplace”. 

Its undoubtedly an important case, and reports say similar cases are afoot in Canada (against York University), in India (against University of Delhi in the Delhi High Court) and in New Zealand in a Copyright Tribunal case brought by Copyright Licensing New Zealand against all eight of the nation's universities.

The costs of the litigation were funded in large part by the Copyright Clearance Center, a licensing company which funded 50% of the costs along with the Association of American Publishers (AAP).

Cambridge University Press et al. v. Patton et al. (also captioned v. Becker), 1:2008cv01425

More on TechDirt here and Inside Higher Ed here and here and the University of Virginia's Cavalier Daily here

Weatherley promotes copyright awareness

Mike Weatherley MP, the UK Prime MInister's Intellectual Property Advisor, has published the third of his copyright reports t, this one called 'Copyright Education And Awareness'. It follows on from the Hove & Portslade MP's previously reported papers on piracy, the first focused on the 'follow the money' approach to combating online infringement, the second looking at the role of the search engines. Key recommendations in the new report include:A step up in the coordination of IP awareness programmes, led by the IPO; more coordination in government and industry-led IP awareness initiatives; Greater measurement of IP perceptions and behaviours; Incorporating IP education in the school curriculum; The BBC to create a copyright education programme; Emphasis on better, clearer information on IP education; Making better use of technology; Introduction of an IP/Education coordinator; Emphasis on reporting outcomes across Government. The incorporation of IP education into the school curriculum may come back to bite the MP: When similar moves were introduced in the USA they caused quite a stir - particularly when materials were produced for schools by content owners (including film, music and TV companies) with a percieved lack of balance and opposition from those with different views on copyright.

Commenting on this report, Weatherley told reporters : "Getting education right on intellectual property awareness is paramount if, as a country, we are to properly respect the value of the creative industries. I have now submitted three reports to the Prime Minister on various aspects of intellectual property and I hope that my education report will help shape the future of both IP education and awareness across the country". Backing the report, Culture Minister Sajid Javid added: "Intellectual property underpins our creative industries. It's what our past success was built on and it's what our future success depends on. We need to get the message across that if people value creativity - and most do - then it has to be paid for. Education plays a vitally important role in changing people's behaviour. By communicating the vital importance of copyright, not just to the success of our creative industries but to the many jobs these sectors will create, we hope to bring about behavioural change".

You can download Weatherley's report via his website - although currently this download does'nt seem to be working.

Mike's previous report Search Engines & Piracy here

Some rather sensible advice for (US) teachers on Education World here

The CopyKat + Inspiration = Happiness

Education was mentioned quite a few times at the IPKat's inspirational Online Copyright + Enforcement = Happiness seminar at Bristows this week, and now it seems much-loved animated character Postman Pat is to play a role in inspiring younger film fans to choose official content. Today, April 4th, pro-copyright consumer education body the Industry Trust for IP Awareness and Lionsgate UK  launches an exclusive Postman Pat: The Movie trailer in cinemas nationwide, adding to the vast catalogue of movie trailers that form the industry’s successful ‘Moments Worth Paying For’ campaign,  and includes bespoke footage of Postman Pat and his sidekick Jess - another feline friend - signposting fans to FindAnyFilm.com for guaranteed real movie experiences, whilst also thanking them for supporting those who worked behind the scenes by buying their cinema ticket.

The Nova Scotia government has reached a settlement in a copyright and moral rights case involving the Bluenose II with the family of the famous schooner's original designer. The dispute arose in 2012 after the Roue family launched a lawsuit against the provincial government alleging that it infringed on their copyright and moral rights by using William J. Roue's drawings in the Bluenose II restoration. Under the terms of the agreement announced Friday, the government would pay the Roue family $300,000, including legal fees, and neither the province nor the family would acknowledge or admit liability.

Also mentioned at the IPKat seminar, so admirably organised by Jeremy and Eleonora, was the news that the City Of London Police's Intellectual Property Crime Unit has announced a new campaign calling on advertisers and brands to cut off the revenue streams of websites providing access to unlicensed content.

And another topic focussed on at the IPKat seminar, where Google's Simon Morrison was a speaker, were DMCA take downs: And somewhat conveniently, YouTube's ContentID system of auto takedowns is in the spotlight - after footage of a live stream of the US House of Representatives' Appropriations Committee, having a budget hearing on the judiciary, was taken down with an apparent copyright claim from Spanish language broadcasters Telemundo and Univision. Surely some mistake .........

And more on YouTube; The Recording Industry Association Of America has secured a subpoena from a federal court in California ordering YouTube to reveal the IP address, email and any other contact info available about a user who uploaded two new unreleased Chris Brown tracks to the video platform earlier this year.

Russian social networking company vKontakte, Russia's equivalent of Facebook with over 100 million active users,
is facing copyright litigation from all three major music groups. Sony, Universal and Warner have all filed separate legal proceedings in the Saint Petersburg & Leningradsky Region Arbitration Court, with Russian music industry trade group NFMI and global recorded music industry body the IFPI both backing the action. The record labels want vKontakte to remove infringing works from its website and are asking the court to require that the website implement measures such as audio-fingerprinting to prevent unauthorized uploads of the labels’ songs. The IFPI confirmed that the labels are also seeking just over 50 million roubles (US$1.4 million) in damages, it added. The site lets copyright holders request the blocking or removal of infringing content, but it is a time consuming process and can also require that they obtain a court order before it complies with their request, making this process “heavily weighted towards the individual who uploaded the infringing material,” IFPI said. On its site, vKontakte states: “The Site Administration has no right to undertake the roles of law enforcement or judicial authorities and objectively cannot evaluate if particular Content on the Site is legal or illegal. If a dispute arises, the applicant is advised to seek help from law enforcement authorities and the court of law".  In May 2012, the Saint Petersburg appeals court upheld an earlier ruling by the Commercial Court of Saint Petersburg that found vKontakte liable for copyright infringement.

On May 7th, The City University Law School host a seminar by Dr Benjamin Farrand looking at why are some lobbyists looking to seek reform to copyright law more successful than others in having their preferred policy outcomes taken into account?. Its between 1pm and 3pm and the title is "Networks of power in digital copyright law and policy". Dr Farrand is Lecturer in Intellectual Property Law and Policy at the University of Strathclyde. His research predominantly focuses on the interaction between political processes and intellectual property law, with particular interest in principles of networked governance, technology regulation and human enhancement technologies: So this from City: "Success in 'lobbying' for changes in copyright law is the result of complex network relationships, perceptions of industry expertise, and the comparatively low political importance of copyright reform to European citizens. By presenting a number of case studies, including the implementation of the Information Society Directive in 2001, the Enforcement Directive in 2004 and the Term Extension Directive in 2011, Dr Benjamin Farrand will argue that an active entertainment industry has been more able to influence legislation than academics or user rights organisations due to a combination of expert knowledge and low media attention. However, the entertainment industry is less able to influence the development of copyright law when media attention and political salience are high, as in the case of the European Parliament rejection of the Anti-Counterfeiting Trade Agreement." More here. 

Pat and that cat

Back to the IPKat seminar: apart from being streamed live, recordings of all of the talks on the day along with each speaker's powerpoints will be available very soon. No session is more than 20 minutes long (well done to the speakers to sticking to time - always appreciated) so keep an eye on the IPKat for details.  

Giancarlo Bettini, the owner of Slysoft, a company that offers DVD-ripping tools, has been fined $30,000 for six offences that violated Antigua’s copyright law in an action brought by major Hollywood studios and their technology partners. It was made more complicated by the 2013 WTO ruling that exempted Antigua and Barbuda from US copyrights, to allow the island state to recoup the damages the US owed from an earlier ruling that invalidated the United States’ total prohibition on cross-border online gambling services. Here the litigants (AACSLA) used anti-circumvention provisions in Antigua's Copyright Act of 2003, which resulted in criminal convictions on six counts. The Copyright Act makes it an offence to manufacture "any device or means specifically designed or adopted to circumvent any device or means intended to prevent or restrict reproduction of work, a phonogram or a broadcaster to impair the quality of copies made.”

And finally, a  a scandal involving Peru's collection society, the Peruvian Association of Authors and Composers (APDAYC), has prompted no less thirteen bills before the legislature, seeking to change different parts of Legislative Decree 822, which governs copyright law of Peru. Some of these bills propose changing specific rules on how collecting societies operate (stemming from the allegations made in recent months against the APDAYC) but there are also proposals for even deeper reforms. Some proposals include new exceptions and limitations for domestic purposes, non-profit activities, libraries, small businesses and religious activities. More on TechDirt here.

Here come some new Exceptions

As Eleonora reported earlier over on the IPKat,
the Government has finally issued an extensive pile of paperwork dealing with its implementation of the new Exceptions recommended by the Hargreaves report.

There are to be five separate exceptions, dealing with:

• what used to be called private copying and what we must now learn to call Personal Copying for Private Use;
• Quotation and Parody;
• Public Administration;
• Research, Education, Libraries and Archives; and
• Disabilities.

While the process that has led to these drafts has been long and convoluted, at least (from a purely legal perspective) the drafting has been much improved since the initial attempts were put out for consultation in July of last year.

To take personal copying as an example, the new Regulations have made clear that the personal copying right does not extend to copies that have been made pursuant to other exceptions, such as time shifting; they have also made clear that the exception only applies to (purchased or gifted) copies that can be kept forever and does not apply to streams or to rented or other temporary copies - including time limited downloads.   The right is backdated so that a copy made before implementation which would have been permitted if it was made post-implementation becomes lawful.

However, other controversial measures remain in place - the much-debated "contractual over-ride" and the Secretary of State's powers to intervene to protect user rights where technological measures (such as DRM) are being used to prevent permitted personal copying.  The latter power is now at least modelled on the existing powers to intervene - so the delightfully numbered section 296ZEA is, at least in form, very similar to the existing section 296ZE which applies where technological measures prevent other permitted acts.  There is also a recognition that the Secretary of State needs to take account of what rights-holders are offering voluntarily in terms of copiability of DRM protected works.

Finally - there is still no provision of fair compensation for private copying - which appears to be a requirement of the Directive.

Alongside the draft laws, the IPO has issued an Explanatory Memorandum, an explanation of the outcome of last Summer's consultation, new Impact Assessments - and a set of guidelines designed to explain the new laws to a range of different interest groups.   All of this is available here.  Once the 1709ers have had a chance to read the other exceptions, further coverage may follow.

The Regulations are set to come into force on 1 June, having been approved by a vote in both Houses of Parliament after Easter.

MusicBiz? It's child's play

A recent UK government media release has announced a competition, launched by the Intellectual Property Office, aimed at helping 14 to 18 year olds to understand better how songwriters, artists and bands are rewarded for their creativity. According to the media release:

The MusicBiz competition encourages entrants to create a short film or storyboard on how they think the music industry operates and musicians make a living [assuming that they do make a living, of course ...].

Improving the understanding of intellectual property (IP), piracy and copyright issues will help cut IP crime and better support the music industry. The competition winners will win unique industry experiences, concert tickets and music vouchers, and will be announced next year.

Minister for Intellectual Property, Lord Younger said:

“The internet has revolutionised the way that we all get, listen to and store music. However, with these changes we have experienced, unfortunately, increasing amount of piracy and copyright infringement. “One of the ways we can help tackle this is through educating people as to how the music industry operates. Through the MusicBiz competition we hope to show them the importance of both the value and protection of copyright and creativity for our world-class creative industries.”

CEO of UK Music, Jo Dipple said:

“We think that it is important that all young people, irrespective of their future career choice should have an understanding and appreciation of Intellectual Property. “We hope that MusicBiz will appeal to both teachers and students as a valuable learning resource and encourage open discussion in the classroom on a topic that inadvertently affects British consumers".

The competition is part of the IPO’s education campaign, ‘Treasure Island’ [an unfortunate choice of names: see eg here] which aims to build understanding of, and respect for, intellectual property in an engaging and creative way. The IPO will launch its Karaoke Shower at the Music Show in Manchester in November, before it starts a tour of the UK.

The MusicBiz competition closes on 31 March 2014. Further details about the competition can be found at www.ipo.gov.uk/musicbiz

Kindergarten Copyright

One of the lesson's accompanying
 illustrations.

Elementary schools in California are soon to include copyright law on the curriculum.  In a pilot scheme to be rolled out later this year, children aged five to twelve will receive compulsory lessons introducing copyright law and the consequences of copyright infringement.

Material for the lessons was drawn up by the California School Library Association and the Internet Keep Safe Coalition in conjunction with the Center for Copyright Infringement (whose board members include Motion Picture Association of American, the Recording Industry Association of America, as well as the country’s largest ISPs). Each lesson includes a video on some aspect of copyright law and a guided discussion on the subject.  The lessons emphasize the creator’s right to control how the work is used, as well as the harm that copying could cause him.

Suspiciously absent from the lesson plans is the concept of fair use. President of the Internet Keep Safe Coalition, Marsali Hancock, initially explained that the doctrine was omitted because it was too difficult for children to understand. Subsequently some have claimed the lessons are a simple attempt at indoctrination. Mitch Stollz, an IP attorney at the Electronic Frontier Foundation claims the lesson plans are “thinly disguised propaganda”. In response to such criticism, the California School Library Association’s vice president, Glen Warren, has conceded that he has “some editing to do”.

Details can be found on Wired.com.