Unlucky for some: Will 2013 break the Internet?

transcript

INTERAction IP Law Update

Unlucky for some: Will 2013 Break the Internet?Gareth DicksonAssociate, London

31 January 2013

Introduction

♦ What makes an efficient Internet?

♦ Technological change vs. legal change

♦ Key legal provisions

♦ What is the likely practical impact of adverse rulings?

♦ Proposals for reform in 2013

♦ Conclusions

What makes an efficient Internet?

♦ Convenience and predictability:

♦ Search results

♦ Links

♦ Worldwide accessibility

♦ Lossless reproduction

Technological change vs. legal change

Legal change Technological changeDesign within the box There is no boxLess competitive pressure Speed / competitive advantageCentralised DecentralisedAccountability Limited accountabilityObligation to do it For the thrill of doing itTo make life better To make life better

Key legal provisions

♦ Section 16 Copyright, Designs and Patents Act 1988 provides for various exclusive rights in respect of original literary works:

♦ to copy the work;♦ to issue copies of the work to the public;♦ to rent or lend the work to the public;♦ to perform, show or play the work in public;♦ to communicate the work to the public;♦ to make an adaptation of the work or do any of the above in

relation to an adaptation.

Key legal provisions

♦ Section 16 Copyright, Designs and Patents Act 1988 provides for various exclusive rights in respect of original literary works:

♦ to copy the work;♦ to issue copies of the work to the public;♦ to rent or lend the work to the public;♦ to perform, show or play the work in public;♦ to communicate the work to the public;♦ to make an adaptation of the work or do any of the above in

relation to an adaptation.

Search results (1)

♦ Results in response to a user’s request:♦ Headlines and titles♦ Snippets♦ Links to original work

♦ Leading CJEU case is Case C-5/08 Infopaq (2009)♦ Broad protection; strict interpretation of any derogations♦ “Original” means author’s own intellectual creation♦ Parts of a work which “contain elements which are the

expression of the intellectual creation of the author of the work” are also protected

♦ Reproduction right cannot be subject to acts “dependent on human intervention” – national court to decide

Search results (2)

♦ NLA v. Meltwater (High Court 2010; Court of Appeal 2011)

♦ News alerts services:♦ reproduce protected works and parts of works;♦ involve the issue of copies to the public.

♦ Prima facie, viewing a webpage and receiving an email are infringing unless consent or a defence applies

♦ Judges rejected all applicable defences, including temporary copies exception found in s.28A CDPA

Search results (3)

Section 28A CDPA 1988

♦ Copyright in a literary work, other than a computer program or a database …is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable—

(a) a transmission of the work in a network between third parties by an intermediary; or

(b) a lawful use of the work;

and which has no independent economic significance.

Search results (3)

Section 28A CDPA 1988

♦ Copyright in a literary work, other than a computer program or a database …is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable—

(a) a transmission of the work in a network between third parties by an intermediary; or

(b) a lawful use of the work;

and which has no independent economic significance.

Search results (4)

♦ Infopaq (2009) held copies enabling caching are “by definition, created and deleted automatically and without human intervention”, and are excepted

♦ Meltwater (2010 and 2011) held caching on personal computers is a consumption of the work, and therefore not excepted

♦ Case C-128/11 UsedSoft v. Oracle (2012) creates a brand new reproduction right that is entirely dependent on human intervention

♦ Meltwater (Supreme Court 2013) appeals this issue alone

Links (1)

♦ Permalinks vs. vanity URLs – a link could be infringing in and of itself, following Infopaq and Meltwater, but will be rare.

♦ Newspaper Licensing Ireland: “a licence is required to link directly to an online article even without uploading any of the content directly onto your own website”

♦ National Newspapers of Ireland: “our view of existing legislation is that the display and transmission of links does constitute an infringement of copyright”

♦ Haven’t we seen this before?

Links (2)

♦ Case C-466/12 Svensson:

♦ Are links a communication to the public of the target work?♦ Does it make a difference whether the target page is framed?♦ Can Member States broaden a rightsholders’ exclusive right to

communicate protected works to the public?

Worldwide accessibility (1)

♦ Will there be a need to restrict the display of content to the jurisdiction from which it is submitted?

♦ Personality / privacy rights:♦ Cases C-509/09 and Case C-161/10 eDate (2011): Where

content provider is established; where claimant has centre of interests; or where content is accessible

♦ Trade marks:♦ Case C-523/10 Wintersteiger (2012): Where the mark is

protected or where the advertiser is established

♦ Copyright / database (communication to the public):

♦ Case C-5/11 Titus Alexander Jochen Donner (2012):♦ “Making available to the public” is “characterised by a series

of acts” from, at least, conclusion of a contract of sale to the performance thereof by delivery to a member of the public

♦ Distribution may take place, and therefore be actionable, in a number of Member States

♦ Case C-173/11 Sportradar (2012): A “making available” occurs at least where the recipient of data is located, provided that he has been targeted

♦ Cases to watch this year:

♦ Case C-466/12 Svensson: are links communications to the public of the target work?

♦ Case C-607/11 ITV Broadcasting v TV Catch Up: are Internet streams of broadcast TV communications to the public?

♦ WNET v. Aereo (Cases 12-12786-cv and 12-2807-cv) and Fox Television v. Aereokiller (Cases CV-12-6921 and CV-12-6950): US cases similar to TV Catch Up, but at a more advanced stage of litigation

Lossless reproduction

♦ Lossless copying:♦ is critical to social media♦ enables the rapid, reliable exchanges of content and ideas♦ makes endless format shifting (and piracy) viable

♦ Do rightsholders need a quid pro quo for ISPs’ safe harbours?

♦ Secondary markets for digital media?♦ UsedSoft – permits the resale of downloaded computer

programs in certain circumstances; endorses DRM but makes anti-piracy campaigns more difficult

♦ ReDigi – launch in Europe anticipates that the resale of other downloaded materials is permitted, absent contractual terms

What are the likely practical impacts of adverse rulings?

♦ Vast majority of private Internet users will abide by the rule of law most of the time. However:♦ Social media♦ Private copying♦ Format shifting♦ DRM-circumvention

♦ What about commercial users?♦ NLI and NNI♦ The situation in Belgium♦ Discernable change since Infopaq and Meltwater?

Are we focused on the right question?

Will 2013 break the Internet?

Are we focused on the right question?

Proposals for legislative reform in 2013

♦ Gowers Review of Intellectual Property, 2006

♦ DIGITAL OPPORTUNITY A Review of Intellectual Property and Growth (Hargreaves Review, 2011)

♦ Government proposals (2012-2013)♦ Private copying♦ Parody, caricature and pastiche♦ Data analytics♦ Freedom to contract?

Conclusions

♦ Trends in recent jurisprudence

♦ What would be the likely practical impact of adverse rulings?♦ Search♦ Links♦ Worldwide accessibility♦ Lossless reproduction

♦ Proposals for reform in 2013

♦ The next 11 months will not break the Internet, but they might amend copyright for the sake of consistency