Laurence Kaye on Digital Media Law

Brexit and the realpolitik of trade agreements

Hamlet observed “There is a divinity that shapes our ends, rough hew them how you will.”

 

When it comes to the UK’s choices in a post EU, Brexit world, it isn’t the Divine, but rather existing international agreements, & the politics and power surrounding them, which will define & constrain what the UK can achieve.

 

This applies to all industries, for goods and services, although the specifics do of course vary.

 

We’ll be debating this at the Stationers Hall on November 6 - do come and participate. https://stationers.org/events/event/0/53-events/159-ipso-facto-post-brexit-choices-for-regulating-copyright-and-data-protection-in-content-data-and-information.html

 

It is complex! So in the interests of brevity, I will describe the bare outlines of the framework, with apologies to any readers who are international trade law experts. But  the main point is this hierarchy of Agreements create the rules to which the UK pre and post Brexit, trades and to which it has to sign up. We can’t re-write the rule book.

 

So imagine 3 Russian dolls. The smallest represents the UK. The middle one represents Regional Trade Agreements (RTAs) such as the Common Market for a major trading bloc like the EU, or a bi-lateral free trade agreement between 2 countries.The biggest one represents the WTO & its network of agreements for goods (GATTS) & Services (GATS) to which 164 countries parties.

 

There is a hierarchy between these international agreements.

 

 So RTAs have to conform to certain key principles that the GATTS/ GATS contain. For services, the over-arching principle is non-discrimination, expressed as ‘Most Favoured Nations’ (MFN) & ‘National Treatment’ (NT).

 

MFN: Each member treats all the other members equally as “most-favoured” trading partners. If a country improves the benefits that it gives to one trading partner, it has to give the same “best” treatment to all the other WTO members so that they all remain “most- favoured”.

 

NT =  Each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.

 

Also, WTO Agreements contain certain Specific Commitments for particular business sectors - in Service Schedules in the case of business Services.

 

There is also a ‘flow down effect’ in this hierarchy of agreements. So the intellectual property provisions in the TRIPS (the Agreement on Trade-Related Aspects of Intellectual Property Rights)’ part of the WTO, contains important provisions on intellectual property which are reflected in RTA’s like the Common Market. 

 

Data protection provisions are contained in these agreements but it is fair to say that, in reality, the EU’s provisions on data protection and e-privacy have a more pervasive influence internationally than treaty provisions. 

 

EU member states are all parties to the WTO Agreements. So why do individual countries want to create bilateral FTA’s and blocs of countries want to create regional FTAs like the the Common Market?  As of August 2017, 281 RTAs had been notified to the WTO and are currently in force, of which 140 exclusively cover goods, 140 cover goods and services, and one covers only services. 

 

There are economic, political and other reasons why countries do not rely on WTO agreements. But I think it’s fair to say that an RTA provides greater access to international markets and less friction for x-border trade. That is to say, closer co-operation or greater economic integration between the parties than that available under the WTO. A good example is the THE COMPREHENSIVE ECONOMIC AND TRADE AGREEMENT (CETA) between the EU and Canada signed on 30 October 2016.

 

Hence the UK’s desire for a comprehensive trade deal. I can point to the degree of harmonisation between EU member states in the e-commerce area e.g. the country of origin principle so that if you set up an online information business in the UK and comply with UK rules for establishing the business, you are deemed to comply with corresponding rules in other member states, thus achieving a ‘one stop’ regulatory approach. Whilst the UK as a WTO member has to apply the MFN principle to businesses from 3rd countries (I.e outside the EU), they do not benefit from the ‘country of origin’ principle.

 

So when we exit the EU, we will cease to benefit from that deeper integration with other EU member states unless we replace it with a bi-lateral FTA. The more we want an FTA at the end of any Brexit transition period, the more pressure there is on the UK to remain in the position of ‘regulatory alignment’ with the EU which will apply on Brexit Day.

 

By the same token, we will also cease to benefit from the FTA’s which the EU has negotiated on behalf of EU member states with third countries or blocs, hence Liam Fox’s prospective busy schedule to sign up new FTA’s.

 

 

In the absence of FTA’s lies ‘hard Brexit’ and our existing commitments and rights under WTO Agreements. 

 

How to solve the "I accept" (without knowing or understanding) problem inherent in online terms and conditions and privacy policies

Dear reader

As we ease ourselves into 2017, I thought I'd start with a short piece, containing a suggested simple solution to a complex and seemingly intractable problem.

We all do it, the legal community included. We want to grab that app, buy that product or service online, download an update, get IT support to gain remote access to our screen etc. Then, up pops that box telling us that before we can get it, we must tick "I accept" with that helpful link to the 30 pages + of terms and conditions to read through before going any further. Need I write more?

So here's the answer - replace pages of legal text with emoticons and/or emojis - 'legalicons'.

Or, perhaps more realistically, supplement the pages and pages of unread detailed terms and conditions and policies with an internationally understood visual vocabulary to convey key provisions e.g. that the site cannot share your data with third parties.

 

or maybe

This will need an internationally supported code of practice to develop and get adopted. It would include a requirement for sites which sign up to include in their T&C"s that if there is any conflict or inconsistency between the legal written text and the legalicons they adopt, the latter prevail.

But what difference would rolling out legalicons make? Is it a solution to a problem no-one cares about? I would like to suggest two reasons why it would make a difference. First, particularly in the case of consumer sites, there are questions about the legal enforceability of complex and legal terms and conditions and policies. Second, unread terms and conditions devalue consent and undermine trust in the online world. In the long run, that's bad for consumers, service providers and everyone else.

Anyway, just an idea for the New Year.

On which note, let me wish all my readers a healthy, happy and prosperous New Year!

Regards

Laurie Kaye

Digital learning principles

Dear reader

I was at E-Commerce Expo this week and went to a session by Renaud Visage, CTO of leading event and ticketing platform EventBrite. He spoke about his '10 learning principles' for start-ups, but they're also very relevant to any business that wants to achieve scale.

I thought they were excellent and wanted to share them with you:-

1. Focus on big problems: find something totally broken or which doesn't work as well as it should. The bigger the problem, the higher the chance of success.
   
   
2. Be 'scrappy' - be resourceful & thoughtful about your use of resources.
   
   
3. Try to automate as much as possible.
   
   
4. Keep things simple. We live in the era of everything being a tap away. Try to put yourself in the shoes of your users and offer the simplest way for your users to do things.
   
   
5. Pay attention to the story you tell yourself, your customers, your investors and your employees about your business. Think about what you stand for and how to deliver on your vision. As the business grows, things that are implicit need to be embedded into the company's processes. 
    
6. Establish trust.  People will be more engaged with brands they trust. Especially in e-commerce, deal honestly with customers, sort out problems. Be ready with crisis management.
   
   
7. Think about your brand, not just the product. Brand is your identity; who you are; not just a logo. Our values -  trustworthy, reliable, 'always on'.
   .
8. Always be ready to reinvent yourself. What makes you successful today isn't necessarily what will make you successful tomorrow. Figure out your place and learn along the way but you must adapt.
   
   
9. For the founders of the business - have better people than you and work out your place in the organisation as it grows.
   
   
10. In the end, it's just a business. Don't let it take over your life. 80 hours a week up to a point, but not forever. Plan 'down time' from the beginning.  

Have a good weekend

Regards

Laurie

 

Brexit, copyright and liminality

Dear reader

I've always liked the word "liminality' - a threshold that marks the boundary between two phases. If nothing else, Brexit presents an opportunity for its appropriate use. The UK's current state, where we are still in the EU but apparently heading somewhere else, does feel liminal, with its quality (to quote Wikipedia) of ambiguity or disorientation.

You can sense this in the way the Commission's significant proposals for copyright reform have been greeted in the UK. The Proposals for a Digital Copyright Directive (more on which below) and Regulation on rights clearance for online TV programming ,if adopted, represent significant modifications to European copyright law. But the response in the UK seems muted, reflecting an uncertainty about their applicability to a post Brexit UK, a sense in which they seem both relevant and irrelevant to the UK.

I'm going to stick my neck out: whatever the nature of the UK's exit from membership of the European Union and our subsequent relationship with the EU as a third country, EU copyright law will remain central to UK digital business. I believe the same is true of other key EU regulations which apply to the digital market, especially the forthcoming General Data Protection Regulation.

I say that for the following reasons:-

• The EU currently accounts for 50%+ of UK exports. Whatever new markets beyond the EU are available to the UK in the 'brave new world'  post Brexit, the UK will have to safeguard this existing market.
  
  
• A 'hard Brexit', with nothing to replace our membership other than relying on the World Trade Organisation rules is a non-runner. According to the CBI, the 'WTO option' would see new tariffs imposed of around 90% by value of UK goods exported to to the EU.
  
  
• This means that, following the UK's exit from EU membership, it will need an association agreement (probably several, and by whatever name called) with the EU. 
• Whilst agreements on tariffs will be an important element of any such agreement, a cursory glance at any Free Trade Agreement shows that a substantial component are common rules on intellectual property, data protection and competition.
  
  
• That being the case, it is in my view highly unlikely, and more probably impossible, for UK rules in these areas to diverge to any significant extent to the corresponding EU rules in these areas.
  
  
• In the specific case of Data Protection, we will have to have rules corresponding to the GDPR if the UK post Brexit, as a third country, wishes to export personal data to the EU.

 Here is a very short summary of some key provisions of the Proposal for the Digital Copyright Directive, from which you will readily see that there are some extremely important developments in EU Copyright law:-

• A new 20 year right for publishers of press publications to authorise the reproduction and "making available by wireless means" for digital use of their press publications. This does not detract from authors' rights in the works included in press publications. It does not constitute a law on hyperlinking. What it would do is allow the press which invest substantially in their publications to get a fair return on digital re-use.
  
  
• A framework for legal agreements between content owners and "information society service providers (i.e. ISPs, platforms & hosts), including a requirement for a more active role by the latter to deal with infringing content by more effective use of content recognition technologies.
  
  
• New mandatory copyright exceptions covering text and data mining, the use of works and other subject matter in digital and cross-border teaching activities and the preservation of cultural heritage. 
  
  
• Provision for licensing agreements between collective societies and cultural heritage institutions to cover 'out of commerce' works and also provisions to deal wit the cross border licensing of out of commerce works. 
  
  
• Provisions dealing with fair remuneration in contacts of authors and performers.

So we need to shake of our 'liminal blues', pay active attention to this spate of new regulations and make our voice heard.

Have a good week

Laurie Kaye

p.s. as some of you will know, at the beginning of 2016 I launched a new IP and Digital Strategy consultancy. You can see more details here. 

 

Brexlections

Dear reader

First, apologies for my fairly lengthy radio silence in the blogosphere. I have been focused on my new strategic IP and digital media consultancy which I launched at the beginning of the year. More on that to follow when I launch my new site shortly.

Meanwhile, like fellow Remainers, I'm rapidly moving through the five stages of Brexit grief - denial, anger (mostly) and now moving to bargaining. Which brings me to Article 50 of the Lisbon Treaty which, as I'm sure you know, requires the UK as the departing member state to trigger the procedure by giving notice to the European Council.

I can't help thinking that whoever drafted that Article probably thought it was the last treaty provision ever to be scrutinised. Any decent termination clause in a commercial contract would  build in some provisions for consultation etc. prior to formal termination. There's already a lot out there in the blogosphere about this but it's worth reiterating a few points about Article as it provides context for upcoming UK/EU exit negotiations:-

•  Whilst Article 50.2 provides that the EU shall negotiate an exit agreement following notification by the departing state, the effect of Article 50.3 is that the departing member state leaves the EU within two years of notification if no withdrawal agreement is negotiated before that period expires.
• So the UK's bargaining position starts to erode from the moment it serves the exit notice, as the UK's negotiators would sit at the negotiating table watching the clock tick towards exit, with their EU counterparts telling them that if they don't like the ideal on offer, they can have no deal. Sure, there are motivations on the continuing EU side to do a deal of some sort, but they will want to drive a hard bargain.
• Hence the reluctance on the part of the PM, Johnson et al to rush into giving a notice.
• Even if the current PM or his successor was minded to do so, in response perhaps to the EU's current stance of 'no negotiations until you give us notice', there are domestic constitutional arguments that no PM has the authority to give a notice without first being authorised to do so by authority of Parliament. See the excellent post here from Adam Tucker for the UK Constitutional Law Association which argues that without such authority in the form of a Statutory Instrument or primary legislation, there may have to be a General Election.

So with so much at stake, and with such legal complexity, we have a Mexican standoff between the UK and the EU. Who will blink first? As the EU as well as UK Remainers move into the third stage of grief and start to focus on bargaining, logic - OK, so when did logic, evidence-based decision making or the like ever come into Brexit? - suggests that some outside event or agency makes possible some a resolution of the standoff. Sounds like a good job for a mediator (Hey, I'm a mediator and I'm available!).

But seriously, with so much at stake for both sides in social, economic, political and legal terms, some facilitation is needed here.

That takes us to the kind of relationship that both parties can agree or, as a mediator might put it, is the least worst outcome which both parties will accept having regard to the alternatives to a negotiated deal. Much has been written and will be written about the known options, including UK membership of EFTA or a bilateral agreement of the kind Switzerland and Canada have each negotiated. 

The first principle of negotiation I learned was 'you don't ask, you don't get. The UK creative industries need to take a lead here. We have amongst our midst some of the most creative and innovative minds in the world. We need to start with a vision, which reflects the borderless, global, services-orientated, interconnected world in which we work and live. We need to ask ourselves the big questions about what we want, both with the EU and beyond and make sure that our voice is heard. Let's get cracking.

Have a good week,

Laurie

The implications for publishers of the decision of the CJEU in Hewlett-Packard vs Reprobel

Dear reader

Yes, it's been a while since I last posted but all that will change in the New Year! Meanwhile, I wanted to share with you a piece I wrote recently for Lexis-Nexis analysing the decision in Hewlett-Packard vs Reprobel which is important for publishers, especially with the upcoming review of copyright by the European Commission next year. You can find it here -   Download Examining fair compensation.

I'd also like to take this opportunity to wish you a wonderful Christmas break and a great New Year, and I look forward to being in more regular touch with year next year.

Kind regards

Laurie

Creativity, Internet and Politics - biggest opportunities and threats

Dear reader

I recently took part in a session at the London Book Fair organised by the Publishers Association on 'Creativity, Internet and Politics'. Chaired by the Publisher Association's CEO Richard Mollett, the panel - me, Simon Milner from Facebook and Tony Burke from Unite - answered two questions: what is the single most exciting opportunity and the single greatest concern posed by the development of the digital economy?"

 Reading David Cameron's paeans of praise this week to UK small businesses, and with the forthcoming Election in mind, I thought I'd share my answers with you.

  Biggest opportunity?

The European Commission is certainly excited about the digital economy's potential. Its recent Factsheet quoted 350b euros of additional growth in the digital economy. In the UK, we have huge talent and skills in the creative industries as well as global demand for English language content and services.

Notwithstanding the dominance of major platforms, I think the single most exciting opportunity in the UK is for authors, artists, performers and small businesses (SMEs) in the creative industries to exploit   the potential of the internet, web and mobile products and services.

 Why such potential in the SME sector? At the start of 2014, small firms accounted for 99.3% of all private sector businesses in the UK, 47.8% of private sector employment and 33.2% of private sector turnover. Small and medium sized enterprises employed 15.2million people and had a combined turnover of £1.6 trillion. Of all businesses, 62% (3.3.million) were sole proprietorships, 29% (15 million) were companies and 9% (460,000) were partnerships. (source: Dept. for Business Innovation & Skills).

 But what makes the new ecosystem for digital works and content is an attractive environment for the SME sector? I think there are five factors which illustrate why.

1. In an intellectual property-centric world, small enterprises with the necessary skills to commercialise creativity through financing, partnering and marketing in an agile way can thrive - think, for instance, of new ways of financing such as crowd funding.
2. The Cloud and collaborative technologies enable small businesses to scale up without large scale internal infrastructure.
3. SME's can engage directly with consumers and be discovered via social media platforms.
4. The new ecosystem is made up of partnerships and collaborations, often between the large platform at one end of the spectrum and individual creators and small businesses at the other end.
5. Small businesses can go direct to consumer via platforms.

None of this is easy, but the opportunities are there to be grasped.

 Biggest threat? 

My single biggest concern is that we do not invest enough in developing the infrastructure and skills needed to realise this potential and, instead, look for solutions to non-existent or exaggerated problems and barriers.

The key to unlocking the digital economy's  is having the necessary infrastructure and business skills. The greatest needs are in digital marketing, technology, data analysis, financing and the ability to create and implement innovative business models and deals based on intellectual property. Building these skills requires investment in education and training.

Instead, transforming copyright is often presented as the 'magic bullet' to realising the market's potential. That is not to say that some adaptation may be needed provided it is evidence-based. The most frequently cited charges against copyright, at least in the UK and Europe, are:-

1. It locks up ideas and so inhibits innovation, creativity and sharing.
2. The 'Fair use' defence in US copyright law, especially the notion of 'transformative use', has allowed new digital businesses to flourish n the US in ways that European copyright law does not.
3. Copyright law is based on territoriality whereas the Internet is a global medium, and as a consequence is inherently unable to adapt.
4. Copyright is simply to complex in a 'B2C' and 'C2C' world.

Each charge raises a number of complex issues but time and space only allows a 'top line' response to each. In short, I think copyright is 'not guilty on the first three charges but does have a case to answer on the 4th charge.

As regards the first, the 2010 case of Allen vs Bloomsbury & J K Rowling shows that, in the Court's words, "[Copyright] does not extend to clothing information, facts, ideas, theories and themes with exclusive property rights."

On count 2, the differences between the US 'fair use' defence, and, taken as a whole, the various individual copyright exceptions found in European copyright law, are much smaller than may appear. It is true that the first 'fair use' factor, which relates to the purpose and character of the use, including whether the use is 'transformational' in creating something new, does give the US courts flexibility. But to make a fair comparison one must compare that with numerous EU exceptions, including for parody, as well as the extensive rulings of the European Court of Justice on the issue of exceptions.

On count 3, there are books on this subject. Suffice to say that global licensing solutions are perfectly feasible within the existing framework and, in any event, a global copyright law would not, of itself, prevent licensing by territory. Furthermore, legal principles on free movement of  goods and services provide a legal check on copyright.

On count 4, there is a case to answer. Copyright law is complex and the management of copyright, including gaining permissions to re-use, is not easy. But there are ways in which technology can hide copyright's complexity and automate rights management. That  brings us back to the importance of investment in the infrastructure. In that context, the work of the Copyright Hub is important, about which more soon.

From me and my colleagues at Shoosmiths,@shoocreative, enjoy your Bank Holiday weekend.

Regards

Laurie Kaye

 

2015 - The Digital Media Law Battle Lines Are Drawn

Dear reader

Make no mistake, this year marks the start of the real showdown for copyright law in Europe, alongside parallel debates taking place in the US and elsewhere.

The momentum for change in Europe comes from the inclusion of copyright (as well as data protection, telecoms regulation, digital infrastructure et al) as part of Commissioner Oettinger's Digital Single Market Agenda portfolio. You can get the picture from the Commission's Digital Single Market infographic - here - and the words in the Commission's Press Release issued on March 25th here, which set out the Commission's priority areas for action.

The Commission's infographic quotes some wonderful sounding stats, including a potential 340b euros in additional growth and hundreds of thousands of new jobs. That would be great; we're all agreed on that.  

There's also no doubt that Commissioner Oettinger has great passion for the potential of this market and he certainly "gets" social media - you need to follow on Twitter to stay in touch with him and his team here and via #digitalagenda. (The Commission's full strategy for realising the potential for the Digital Singe Market is due to be published this May.)

But there's a problem or, rather, a strong likelihood of a very polarised debate which will make getting consensus between all the players in the creative industries harder to achieve. The Commission talks about obstacles, barriers and blocks, citing geo-blocking and an out of date copyright regime as examples. This is echoed in the European Parliament's recent draft Report on the 200 Infosoc (Copyright) Directive. Its core finding according to Rapporteur Julia Reda was that "The provisions of 2001’s copyright directive have not been able to hold step with the increase of cross-border cultural exchange facilitated by the Internet. The current copyright regime hinders the exchange of knowledge and culture across borders. To meet current challenges, the legislation needs to be updated to current practices and harmonised further."

By depicting copyright as outmoded, and as a barrier and obstacle to access and consumer choice, the battle lines are set. Now this isn't to say that there isn't a case for some adaptation of copyright law. There is a legitimate debate to be had about the nature and effect of differences in national copyright exceptions as an example. The same applies to an analysis of the merits of a pan European copyright title. But it is simplistic to suggest that the territorial nature of copyright, and with it the ability to licence on territorial basis, is inherently outmoded or indeed would necessarily disappear if a pan European copyright law was introduced.

So let's have a proper debate founded on facts. Let's not be afraid to confront difficult issues and where there, based on evidence, there's a proven case for 'copyright catch up', to make an appropriate change. But we also need to remember that copyright is only part of the story. In the European Publishing Council's 2014 Vision Paper on Copyright (which can be downloaded here), we argued that there are ‘3 Digital Elements’ – technical infrastructure, enabling copyright framework and practical solutions – which form the foundation for realising the potential for the market for digital content.

Adjusting copyright, by itself, will not deliver the goods. 'machine to machine' communication of rights and licensing, direct to consumer platforms and a host and variety of other solutions, are also essential elements. And before legislative change is made, we need to remember that many of the tools for sharing and licensing content for non-commercial and/or commercial purposes are already widely available. Discovery may be more of a challenge which technology may help solve. 

I'll return to the issue of territoriality in another post. It's a complex issue, touching on location for legal purpose of the act of making available as well as EU rules governing the free movement of goods and services. The devil in all of this is in the detail and in the evidence. Let's not have a simplistic and 'old world' polarised debate.

Have a good week,

Laurie Kaye

 

Data protection and the digital agenda

Dear reader

For as many years as I can remember, my mantra at the beginning of the year has been that "This year, privacy and data protection will be high on the Board agenda." And each year, with a few exceptions, it hasn't.

But perhaps 2015 will be different. For instance, there were quite a few comments at Davos about loss of trust in the US consumer technology giants, drawing parallels with the banking industry.

For other reasons, privacy and data protection is in the news, as the terrorist attacks in France have brought into focus the rights of the State to intercept and monitor communications for security purposes.

So, standing at the meeting point for the conflicting forces of privacy, freedom of  expression, security and 'big data', data protection law is demanding more attention.

In the USA, as  reported in the FT recently, President Obama proposed 3 bills which call for companies to provide speedy information to customers who suffer a data breach  (e.g. theft of credit card data) and to implement protections for information  collected by tablets. computers and other technologies in the classroom. He also  urged the creation of a consumer privacy bill of rights, which would set rules  for the way that personal information is used an stored by tech  companies.

 

One of the criticisms levelled at data protection law is its fragmentation and lack of consistency across different jurisdictions. In Europe, the  Commission is keen to complete its review of the 1996 Data Protection Directive and have it updated by a new Data Protection Regulation and, in that way, to drive consistency as part of its single digital market agenda.

 

In the attached article, Download 1-5516942-8A-5397693-Note_for_publishers_conference_-_pdf

we have summarised the key changes which are contained in the draft of  the new Regulation, and what action you should be taking now to prepare for these changes. Although it's aimed at publishers, most of our  comments are applicable generally. We hope you find it an interesting read and, of course, will be  happy to answer any questions you have.

 

Have a good week,

Laurie Kaye

 

Rights in databases: IP rights 0: Contracts 1

Dear reader

Apologies for the rather cryptic title of this post which concerns this month's decision of the European Court of Justice in Ryanair Ltd vs PR Aviation BV. This goes back to 2010 and Ryanair's complaint to a Dutch Court about PR Aviation 'scrapping' the Ryanair database. PR Aviation operate a price comparison and booking site for flights, for which purpose it scraped data from the Ryanair website.

The case illustrates that in an age of 'machine to machine' communications, contracts and licences may trump intellectual property rights.

Ryanair argued before the Dutch Court that (1) PR Aviation's webscraping infringed its copyright and/or database right (also known as the) derived from the Directive for the Legal Protection of Databases and (2) that PR Aviation also breached the terms of Ryanair's website which state that "the use of automated systems or software to extract data from this website or www.bookryanair.com for commercial purposes ('screen scraping') is prohibited unless the third party has directly concluded a written licence agreement with Ryanair...."

In fact, Ryanair lost on (1) before the Dutch Courts which decided that the scrapped data did not benefit from copyright protection under the Database Directive, nor did it meet the 'substantial investment' test under that Directive to qualify for the database right protection.

The single issue decided by the CJEU was whether the freedom to use such a database can be controlled by contract or whether freedom to contract is overriden by the Direcctive.

The Database Directive gives the 'lawful user' of a database the right to use substantial parts of a database without requiring the consent of the owner for specified purposes, and thus without infringing either the copyright or database right. For example, the 'lawful user' can extract or re-utilise the database's contents without requiring consent i.e do the things.... " which is necessary for the purposes of access to the contents of the databases and normal use of the database"."

The Directive goes on to state that any contractual provision which overrides these 'carve outs' to copyright and database right are null and void.

The point decided by the CJEU was this: as the Ryanair dataset scraped by PR Aviation's search engine was not protected by copyright or database right - because it did not meet the thresshold for legal protection - the provisions in the Database Directive which rendered null and void contractual limitations on the 'lawful user's' right to use the database did not apply.

So the result is that freedom to contract wins on issue (2) - The restriction in Ryanair's website terms against web scraping were not overriden nor rendered null and void by the Database Directive.

This decision may be significant as we move increasingly to the use of 'machine readable' permissions (aka licence terms) which attach the use of content and effectively 'travel with' that content, thereby communicating the ways in which that content may be lawfully used. That's actually good news because in a world of digital distribution, it's in everyone's interests to use technology to make it easy to find, clear and use content. 

In my view, this doesn't mean that rights owners will or can use contracts to 'lock up' content - bear in mind this decision relates only to data in a database and not to to copyright content sitting in databases, Rights owners don't want to 'lock up' content. Rather, they make it available across a multitude of platforms but on terms that where it is protected by copyright, there is an infrastructure in place which delivers that content to consumers and assures rights holders, from creators onwards, that they get remunerated where they of a fair return on their creative and economic investment.

There's a good analysis of the Ryanair case on the IPKat Blog here.

Have a good week.

Laurie