Thursday, 19 October 2017

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

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

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

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

Here’s what he writes:

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

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

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

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

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

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

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

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

Tuesday, 17 October 2017

CEIPI Opinion on copyright limitations' reform in the European Digital Single Market

The Centre for International Intellectual Property Studies (CEIPI) has just published a position paper on the proposed reform of copyright exceptions and limitations in the European Digital Single Market (DSM).
The European Commission’s planned copyright reform proposes to adapt EU law to the challenges emerging in the Digital Single Market (DSM)’s. The CEIPI Opinion does support the plan to develop a strategy to take copyright into the 21st century and make it functional to the DSM, especially by addressing important needs with regard to access to copyrighted works in order to boost creativity and innovation, promoting cumulative research and sharing of knowledge-based resources. In particular, new mandatory exceptions and limitations should contribute to improving the digital environment’s creative ecosystem. The introduction of mandatory exceptions and limitations is a welcome, innovative arrangement that promotes harmonization and, therefore, the DSM, says CEIPI. Obviously, focus on facilitation of research, teaching and preservation of cultural heritage stands as a primary need for the promotion of the DSM. However, the goal of the proposal of lowering barriers to research and innovation in the EU DSM should be pursued more decisively by expanding the reform’s scope. This reform should be an opportunity to consider also additional exceptions and limitations that are crucial in a knowledge based society and to reflect on the future design of an opening clause to address uses that are not yet covered by existing exceptions and limitations but are justified by important public interest rationales and fundamental rights such as freedom of expression and the right to information. Moreover, a true harmonisation of the DSM will only be achieved if all limitations and exceptions provided in past EU copyright instruments are declared mandatory and have thus to be implemented as such in national law.


In its Opinion, CEIPI would like to provide a preliminary assessment of the proposed introduction of new exceptions and limitations by drawing attention to selected aspects of the reform and considering room for improvement where necessary. In particular, and inter alia, this CEIPI Opinion highlights that:

(1) Given the uncertainties that researchers face in applying present exceptions and limitations to Text and Data Mining (TDM), a new mandatory exception might drive innovation and bridge the gap with other jurisdictions. However, the TDM exception should not be limited to research organisations but extended to all those enjoying lawful access to underlying mined materials—as the right to read should be the right to mine—especially in order not to cripple research from start-ups and independent researchers.

(2) The new mandatory teaching exception does promote the DSM agenda by facilitating digital and cross-border teaching activities. The introduction of a voluntary scheme to limit the exception’s applicability—if an adequate licence is easily available on the market—would nonetheless work against harmonization, undermining positive externalities of the mandatory approach. Also, the scope of the exception should be expanded in order to match with the teaching and research exception included in Directive 2001/29/EC.

(3) The proposed reform emphasises the role of European cultural heritage in the DSM through the introduction of an exception for its preservation. The new exception expands previous voluntary exceptions to facilitate mass preservation projects and allow reproduction in any format and medium including format-shifting and digital copying. Possibly, beneficiaries should also include educational institutions. Again, the new exception should reach also objects not permanently in the collection of beneficiaries as this limitation might stifle collaboration efforts between Cultural Heritage Institutions (CHIs) to share artworks within the DSM.
The CEIPI Opinion is available here.

Wednesday, 11 October 2017

International Copyright Law returns to London

Wish to be updated and discuss the latest developments in copyright law, policy and practice across the globe?

The well-known International Copyright Law 2-day conference returns to London on 27 and 28 November 2017. 

It brings a cast of speakers from different jurisdictions and backgrounds to discuss the hottest issues, ranging from Brexit to the EU Digital Single Market Strategy, from the scope of exclusive rights to developments at the international level.

The agenda is available here.

1709 Blog readers can register here and claim a 20% discount by using FKW827531709E as a VIP code.

THE COPYKAT spins around the world of copyright

Alibaba.com, the massive Chinese e-commerce company that provides consumer-to-consumer, business-to-consumer and business-to-business sales services via web portals, has been hit with a class action lawsuit claiming that its network of e-commerce websites is home to rampant copyright infringement of visual artwork.The lawsuit has been brought at the instigation of professional Indiana artist Michel Keck who is seeking to certify a class of copyright holders who have seen their work copied and sold on Alibaba’s network of websites. The 81-page complaint, filed  in U.S. District Court for the Northern District of California, outines the frustration Keck faced as she attempted to get dozens of China-based sellers to stop selling cheap copies of her work, primarily modern abstract canvas prints that feature dog portraits and religious themes.Keck claims that she repeatedly filled out online forms to report the alleged infringement to Alibaba, only to run into error messages, requests for documentation, or messages in Chinese. Often, she claims, she simply received no response. Alibaba has just announced that it will invest more than $15 billion over the next three years in a global research and development programme.



The Ontario Court of Appeal has upheld a decision to dismiss a class action lawsuit against Teranet Inc., which is the company that manages the province’s electronic land registration system (ELRS). In Teresa Scassa, University of OttawaIn Keatley Surveying Ltd. v. Teranet Inc., 2007 ONCA 748, the court heard that the plaintiff, Keatley Surveying Ltd., had brought action in 2007 on behalf of all land surveyors in Ontario who registered their plans of survey in the provincial land registry offices. Keatley claimed that Teranet Inc., the defendant, infringed their rights. The plaintiff, representing the class of surveyors, objected to what it saw as Teranet profiting from the commercial reproduction and dissemination of their copyright-protected works. Finding against the surveyors, the appellate court said it agreed "with the motion judge that copyright in the registered or deposited plans of survey belong to the Province. ... In summary, I would hold that the extensive property-related rights bestowed on the Crown by the land registration scheme in Ontario compel the conclusion that the publishing of those plans, by making copies of the plans available to the public, is done under the “direction or control of Her Majesty.” Section 12 of the Copyright Act declares that the copyright in the registered or deposited plans of survey belongs to the Crown." Read more here Crown copyright alive and well in new decision from the Ontario Court of Appeal


In the US, it seems web blocking is now on the cards for copyright owners whose rights have been infringed, after Magistrate Judge John Anderson in the District Court for the Eastern District of Virginia recommended a ruling in favour of the American Chemical Society in their action against Sci-Hub (sometimes dubbed the “Pirate Bay of science” whom the ACS accused of copyright infringement for making available online copies of the former’s academic papers without licence. Sci-Hub lost its sci-hub.org domain during an earlier (and separate) legal action against the site by science publisher Elsevier. More on CMU Daily here


And continuing with acaedemia, and the same to claimants, and copyright alleged infringement: scholarly publishing giant Elsevier and the American Chemical Society (ACS) have filed a lawsuit in Germany against ResearchGate, a popular academic networking site, alleging copyright infringement on a mass scale. The move comes after a larger group of publishers became dissatisfied with ResearchGate’s response to a request to alter its article-sharing practices. Sciencemag explains that ResearchGate, a for-profit firm based in Berlin that was founded in 2008, is one of the largest social networking sites aimed at the academic community. It claims more than 13 million users, who can use their personal pages to upload and share a wide range of material, including published papers, book chapters, and meeting presentations. Science funders and investors have put substantial funds into the firm; it has raised more than $87 million from the Wellcome Trust charity, Goldman Sachs, and Bill Gates personally - but the claimants say that published papers now include copyrighted papers whch are usually accessible only behind subscription paywalls. Initially, the International Association of Scientific, Technical, and Medical Publishers wrote to ResearchGate on behalf of more than 140 publishers, expressing concerns about its article-sharing policies, and proposed that ResearchGate implement a “seamless and easy” automated system to stop their copyrighted works appearing on the site. This was rejected and a 'take down' system suggested by ReserachGate - which the publishers are not happy with, saying  hat the company’s “business model depends on the distribution of these in-copyright articles to generate traffic to its site, which is then commercialised through the sale of targeted advertising" Two coalition members, ACS and Elsevier, have now opted to go to court.


A small claims procedure for IP in the USA? Congressmen Hakeem Jeffries (D-NY) and Tom Marino (R-PA), along with Representatives Doug Collins (R-GA), Judy Chu (D-CA), Ted Lieu (D-CA), and Lamar Smith (R-TX)  have introduced a new bill in the House of Representatives that photographers and others involved in the visual atrts say will be a valuable tool to complement the current “ one-size-fits-all copyright system" which "leaves out most visual artists.” The Copyright Alternative in Small-Claims Enforcement (CASE) Act is intended to give creators a cost-effective way to enforce their rights. The idea of a copyright small-claims court, which has been discussed in Washington D.C. for several years, could make it easier for small companies and independent creators to enforce their rights,  And Billboard says it could be a game-changer for photographers and visual artists, especially where merchandise is concerned.


Nigeria has presented four key Copyright ratified Treaties to the Assembly of member states of the World Intellectual Property Organization in Geneva. The News Agency of Nigeria reports that the presentation was made at a 57th WIPO General Assembly meeting in Geneva.  Ambassador Audu Kadiri, Nigeria’s Permanent Representative to the United Nations Office in Geneva, whopresented the treaties to the Director General of WIPO, Dr. Francis Gurry said, Nigeria was committed to the implementation of the treaties in support of the country’s drive to revatilise its economy. The treaties were listed as the WIPO Copyright Treaty, the Performances and Phonograms Treaty, the Beijing Treaty on Audio Visual Performances, and the Marrakesh Treaty.


There has been another delay by the EU's Committee on Legal Affairs (JURI) on EU copyright reforms set out in the Draft Directive on Copyright in the Digital Single Market (COM 2016(593). It was anticipated that JURI would have its final vote on the amended wording on the 10th October 2017. However, the draft Copyright Directive had been removed from the agenda for that date. For now, it seems that we will all have to wait until JURI’s next session on 7th December 2017 to see how the bill progressing. Axel Voss assumed the role of the rapporteur in June this year. More on Lexology here.




Tuesday, 10 October 2017

Freedom of panorama: would it hurt architects? Survey among Italian-based architects says NO

Contemporary architecture in Rome:
the stunning MAXXI museum by Zaha Hadid
Frm Eleonora Rosati writing on theIPKat 

The (until fairly recently little-known) copyright exception in Article 5(3)(h) of the InfoSoc Directive allowing Member States to authorize the "use of works, such as works of architecture or sculpture, made to be located permanently in public places", also known as freedom of panorama, has been subject to increasingly frequent (and heated) discussion over the past few years.

Freedom of panorama: from niche to ubiquitous?

At the EU level, in her report MEP Julia Reda proposed to make the exception mandatory for all Member States to have. At the moment, however, there seems to be no real discussion around this issue, nor does it seem that the EU Commission intends to propose legislation in this sense.

At the national levels legislatures and courts have been busy addressing this area of copyright [a handy overview of national approaches (both at the EU and non-EU levels) to freedom of panorama is available here].

Examples of the former include the recent initiatives in Belgium [Article XI.190(2/1°) of the Code de Droit Économique, introduced in 2015] and France [Article L 122-5 No 11 of the Code de la propriété intellectuelle, introduced in 2016 - here], which have resulted in the adoption of specific exceptions allowing freedom of panorama. 

An example of the latter is the (rather) controversial 2016 decision of the Swedish Supreme Court [here] that arguably interpreted narrowly the relevant exception in section 24(1) of the Swedish Copyright Act. The decision was applied earlier this year by the Swedish Patent and Market Court.

As an EU Member State, Italy occupies a relatively peculiar position. While formally Italian copyright law does not envisage an exception allowing freedom of panorama, a certain freedom is nonetheless recognized by means of other provisions [here]

As Italy also expressly includes works of architecture among protectable subject-matter, it is the perfect candidate to see how those who would be harmed by the introduction of a specific exception allowing freedom of panorama would react to the introduction of a specific exception. 

Santiago Calatrava's Ponte
della Costituzione
in Venice
The Wikimedia survey

This is indeed what the Wikimedia Foundation sought to discover earlier this year, when it conducted a survey among architects based in different parts of Italy, obtaining over 600 responses.

The results [available hereare very interesting.

First, the facts: only one respondent stated to have every received payment for a photograph taken of their work. 

More generally, over 70% of those surveyed stated that they are not aware that permission is required to make reproductions of works of architecture, sculptures et sim permanently located on public display. Nearly 60% thinks that it would not be reasonably possible for, eg, a photographer to locate and contact relevant rightholders to seek permission. 

Wikimedia also asked respondents whether they agreed with a freedom of panorama provision, described as following: the ability to take a photo of a work of yours visible from the public street, distribute it with a free license and add it to a Wikipedia article, all without your permission. 11.5 % of the respondents believed this to be a bad thing for them or in general, while 68.6 % declared it to be a good thing and around 20 % gave a more nuanced response, generally stressing that the photographer should if possible state the provenance and name the architect/author.

Conclusion

It would be interesting to see if the results of the survey changed in different Member States. Overall, however, it appears that - at least in Italy - architects may be more concerned about attribution of the work, rather than licensing use upon payment of a fee.

The Wikimedia survey results also prompt a broader reflection on the goals pursued by certain policy initiatives and whether they would be really beneficial to their ... beneficiaries. In this sense, a fairly immediate connection is with the discussion currently being undertaken around the introduction of an EU press publishers' right, further to somewhat similar initiatives in Germany and Spain. Would the beneficiaries of this new neightbouring right (if adopted) uncontroversially benefit from it? 

Posted By Eleonora Rosati to The IPKat on 10/10/2017 01:16:00 pm

Tuesday, 3 October 2017

The CopyKat gets digital in the lion's den



Facebook is promising to make it easier for content owners to police the social platform for unauthorised and pirated videos — and then either monitor or block them, or potentially make money from them.

A year and a half ago, Facebook launched Rights Manager to let media companies and other copyright holders identify unauthorised video sharing based on reference files. But using the system has largely been a manual process, unless rights owners developed hooks from their own automated systems into the Rights Manager’s API.

Now, Facebook is directly integrating Rights Manager with services from three third-party providers — Zefr, Friend MTS, and MarkMonitor — to provide new options to automate such tasks. Facebook says the partners will be activated over the coming months.



Ukip’s attempt to rebrand itself for the post-Brexit era experienced an early hiccup last week after a new party logo bearing a lion’s head prompted reports the Premier League was investigating whether it was too similar to its emblem.

The logo replaces the longstanding yellow and purple pound symbol, and was chosen by party members at Ukip’s annual conference in Torquay. 

Its unveiling brought immediate comparisons with the Premier League’s logo, which also depicts a lion’s head. The two lions are featured above left and the logos right.

The league said it had no immediate comment, but it is understood its internal legal team was aware of the issue and was looking into any potential breach of copyright (or even a trade mark action with the mark on the right a registered Premier League mark)


The European Commission yesterday published new guidelines for how internet companies should deal with illegal content that is uploaded to their networks, in a bid to encourage net firms to be more consistent and proactive in blocking illegal files, which includes content that incites violence or terrorism, as well as copyright infringing material.

Copyright owners will be pleased that that the European Commission has including piracy in its review of how the net sector deals with illegal content, and will now watch what progress – if any – is made. Meanwhile within the tech sector, there are mixed opinions.

The Computer And Communications Industry Association – repping many web giants – said that it “has advocated for a long time for the introduction of well-thought-out notice and action guidelines, and [these guidelines are] a welcome initiative for a more aligned approach on the removal of infringing content across the European Union”.

Others say that – while the EC does talk about the need to balance the speedy takedown of illegal content with ensuring free speech rights are protected – the guidelines don’t do enough to protect freedom of expression online.


A federal judge refused to dismiss a copyright lawsuit over Pepsi’s time-travelling 2016 Super Bowl advert, allowing an advertising firm’s case to proceed to discovery.

U.S. District Judge Kenneth Karas in the Southern District of New York ruled Tuesday that the soda behemoth must face part of a copyright case brought by a Connecticut advertising agency that accused PepsiCo Inc. of stealing its concept for a high-profile Super Bowl halftime commercial.

Betty Inc. alleges Pepsi’s 2016 Super Bowl commercial titled “All Kinds/Living Jukebox” lifted its concept for a “human jukebox” scenario, in which music genres and fashions change “with the ability to transport the viewer to imagine a scene consistent with a created joyous feeling.”

The video begins in the mode of early Motown and R&B set to the Contours’ “Do You Love Me,” then jumps into the high-energy 1980s vibe of Madonna’s “Express Yourself,” ending with a modern pop take on Pepsi’s familiar “Joy of Cola” jingle. The commercial stars soul singer and actress Janelle Monae.

Betty claimed Pepsi stiffed it on the agreed-upon $5,000 compensation for the concept. It could end up a lot more expensive now!


The Bundesgerichtshof has been considering a case that dates all the way back to 2009. The US adult website Perfect 10, which had already proved an enthusiastic litigant in the US, sued AOL Germany for showing thumbnails of pictures of its models.

Specifically, people had taken images from behind Perfect 10's paywall and unlawfully published them elsewhere online. It was from those sites that Google, whose image-search engine was powering AOL's services, took the thumbnails that it then presented to users.

As the case wended its way through the courts, Perfect 10 maintained that it was owed damages for copyright infringement. Last week, though, the Bundesgerichtshof disagreed.

Germany's highest civil and criminal court said, under German and EU law, Google's tool was not infringing copyright by reproducing the thumbnails of Perfect 10's models.

A key precedent here was the case of GS Media vs Sanoma, in which the Court of Justice of the European Union last year ruled that it is possible to infringe copyright by posting links to copyright-infringing material.

This CopyKat by Matthew Lingard (Walker Morris LLP)

Saturday, 30 September 2017

Waiting for the approval of the EU Directive on copyright in the Digital Single Market

By Eleonora Rosati writing on the IPKat
Roman Kats
A little over a year ago the European Commission released its proposal for a Directive on copyright in the Digital Single Market [Katposts here], which is currently being discussed in the European Parliament.

The content of the proposed directive has attracted substantial commentary, particularly with regard to provisions intended to introduce a new neighbouring right for press publishers (Article 11) and obligations for hosting providers in the context of what has come to be known as the ‘value gap’ problem (Article 13).

Last week Professor Lionel Bently (University of Cambridge) and Associate Professor Valeria Falce (Università Europea di Roma) were in Rome to discuss the content of the proposed directive.

Here’s what they think:

“After a tortuous journey and conflicting opinions amongst the EU institutions (the Commission, the Committees of the European Parliament, the Council), the approval of the draft Directive on copyright in the Digital Single Market is around the corner.

The goals are sound: to adapt copyright to the digital ecosystem and the challenges of new technologies; to strengthen the effectiveness of rights and to promote an enriched relationship between the authors/publishers and the general public; to safeguard a "free and pluralistic press" and to guarantee "quality journalism and easy access to information for all".

The key challenges are shared by the different parties: addressing the radical changes brought by the digital economy, which overwhelm the publishing industry and requiring adaptation of traditional business models; facilitating circulation of works and the licensing system; and allowing publishers and authors to participate with “equal arms” in the value chain.

The proposed solutions to these problems are however controversial, as the Commission, Council and Parliament swing between compromise attempts and sudden reevaluations.

Lionel Bently
The divisions are most pronounced in relation to two provisions of the proposed Directive: i) Article 11 — with which the European Commission proposes to introduce a new right in favour of press publishers to ensure the sustainability of the sector against new forms of exploitation promoted by aggregators and online operators; and ii) Article 13 — through which it is intended to control platforms and Internet Service Providers (ISPs) that host and make available content.

Article 11 is inspired by similar rules recently introduced in Germany and Spain. Experience with these regimes as yet does not suggest that the proposed reform will do much to sustain newspaper publishing or the quality of local journalism. Outside Italy, the point has been made that many of the difficulties facing publishers can be more proportionately solved by a presumption that they hold rights in the content of their publications, rather than through the creation of a new “ancillary right” in any “fixation of a collection of literary works of a journalistic nature”, with the uncertainty necessarily attendant on ascertaining the scope of such right. From an Italian perspective, Article 11 does not add much to the legal framework.

Different difficulties arise from the current wording of article 13 and its associated recitals. Many of these difficulties derive from the fact that the proposal seeks to intervene in a complex legal ecosystem, where there are established instruments (the 2000 eCommerce Directive, the 2001 InformationSociety Directive, the 2004 Enforcement Directive and a raft of jurisprudence of the Court of Justice of the European Union (CJEU) which has interpreted these through the lens of fundamental rights as recognized in the EU Charter.

First and foremost, the definition of legal entities to which the new obligations apply, is hopelessly uncertain. Article 13 refers to “information society service providers that store and provide to the public access to large amounts of works or other subject matter uploaded by their users,” and thus hands over to the CJEU the unenviable task of identifying whether “large” implies 200 items or 200,000  or somewhere in between. The draft JURI Committee Report sensibly seeks to replace “large amounts” with a criterion relating to the character of the activities rather than the volume of content. That amendment would limit the application of the provision to information society service providers that are actively and directly involved in the making available to the public of user uploaded content and where this activity is not of a mere technical, automatic and passive nature.

Valeria Falce
Secondly, the proposed Directive states that these operators "should take appropriate and proportionate measures to ensure the protection of such works (…) for example through the use of effective technologies." The provision refers to the filtering and content tracking techniques already used in other industries, such as the music industry. However, the CJEU has already held (twice) that such technologies are incompatible with Article 15 of the eCommerce Directive and fundamental rights and freedoms of the platforms and their users (including their personal data). For this reason, amendments in several of the Parliamentary Committees and in the Council Working Party would delete specific reference to filtering technology, which appears to be the only acceptable way forward.

Thirdly, the proposal uses the terms “communication to the public” without clearly referencing Article 3 of the Information Society Directive, where it relates to a distinct concept. Implicitly insisting on the conclusion that any service provider that stores and provides access to the public to subject matter uploaded by their users is “communicating to the public,” Recital 38 ignores the CJEU’s instruction that every case should be assessed on its facts. Nor can any assumption be drawn from the recentPirate Bay decision [see here] that hosts that store largely lawful material, but also some unlawfully uploaded subject matter (prior to receiving take down notices) are liable of copyright infringement for communicating the unlawful material to the public. Indeed, the CJEU has stated that communication depends on an awareness of the effects of an intervention (a criterion that is hard to fulfill when the host is unaware of the material that has been uploaded).

A similar objection can be made in relation to the manner in which Recital 38 appears to promote a particular interpretation of Article 14 of the eCommerce Directive, which offers certain hosts immunity from financial liability as regards illegal material. While the CJEU has emphasized the importance of knowledge and control over then content as the key matters that transform a host into someone to whom the immunity is inapplicable, the Commission controversially implies that the immunity vanishes as soon as a host is involved in any “optimization of the presentation of materials or promotion of such.”

Ultimately, while the Commission appears to pursue a clear objective (reviewing the set of responsibilities) through a bold framework, because the proposed Directive lies within a network of pre-established instruments Article13 is likely to become a legislative bull in a fragile legal china-shop. It will at the very least introduce “large amounts” of uncertainty, or, worse, obscure the obligations of the subjects involved.”


Posted By Eleonora Rosati to The IPKat