Laurence Kaye on Digital Media Law

Copyright & Innovation - let's get this right

Dear reader

2015 is set to be the year of copyright debate. My friends at the IPKat Blog describe here how things are hotting up, following the European Commission publishing its Report on responses to last year's Copyright Consultation, and, as IPKat reports, the  EU Commissioner for Digital Economy and Society, once again made clear on Twitter that having “modern copyright rules” is one of the key goals for 2015.

You'll know how quickly the copyright debate becomes polarised. But I'm going to take the risk of being labelled 'luddite' when I take issue with the charge that copyright, at least in its current form, is a barrier to innovation and creativity or, put in another way, that reforming copyright law will, in and of itself, unleash a torrent of pent up innovation. That's certainly the charge laid at copyright's door by 'Copyright for Creativity' in their Copyright Manifesto and in the European Parliament's Committee on Legal Affairs Draft Report on the Copyright Directive.

Often, the real challenge is nothing to do with copyright but is about finding viable business models that deliver the consumer what he or she wants whilst ensuring a fair reward for the creator of that content. This is apparent in the current debate about streaming vs. downloads in the music industry, and their respective implications for artistes, and in the publishing industry about subscription vs. sale of e-books.

That isn't to say that the current copyright framework is perfect or should not be adapted in certain specific cases where evidence demonstrates the need for change. But I do challenge the assumption that copyright lawe in its current form is a barrier to innovation. A willingness to take risks, technological expertise, innovative business models and toleration of failure - these are the foundations on which Silicon Valley and Israel's 'Start-Up' nation have been built and which exist here in the UK too.

There are plenty of instances of innovation within our current framework. Look, for instance, at how publishers are making content available under open licences via API's. Look at the proliferation of new platforms for self-publishing.  

So let's have that debate about copyright. But let's make sure that it is a rounded, evidence-based and multi-dimensional.The European Publishers Council's 2014 Vision Paper entitled 'From Vision to Reality: Copyright Enabled on the Network', to which I contributed, presented a framework based on '3 digital elements' - (1) technology, linking the different parts of the digital content networks together in a seamless, machine readable way; (2) an enabling copyright framework and (3) practical and viable, user-relevant solutions, including innovative licensing.

The key point made in the  EPC's paper is that realising the full potential for the digital content does not depend on any one element by itself. Rather, it is their combination. With initiatives like the Copyright Hub, the future lies in completing the technical infrastructure so that finding, clearing and consuming copyright content is just one click away, and of course in a way which that accomodates uses allowed under exceptions.

Have a good week,

Laurie Kaye

 

Google News - hasta la vista

Dear reader

I've written on a number of occasions over the years on how the liability position of Google and other intermediaries is shifting from a simple "I'm just a host, so don't look to me" to one of increasing responsibility.

In the Court of Justice of the EU's decision in Google Spain and Google, Inc vs. AEPD (Spanish Data Protection Authority) and Snr. Gonzalez, the Court was clear that Google, Inc was a 'data controller' and so within scope of European data protection law.

Yesterday, Google announced that it is shutting down Google News in Spain, responding to the forthcoming introduction - Happy New Year Google, on 1/1/15 - of the 'canon AEDE' which introduces a new statutory copyright limitation which allows the use of 'press snippets' but carries a price tag for intermediaries in the form of fair compensation. In fact, this follows on the heels of a change in German copyright law whose legal form is different but whose effect is the same.

Not all press publishers welcome the legal changes as they fear Google switching off the service may result in a loss of traffic to their sites. But others warmly welcome the change and say it's about time that Google and other intermediaries started paying for the use of their content.

As it happens, I wrote on article on this subject which was published by Intellectual Property Magazine this week. So if you'd like to drill down into the detail, you can read it here, made available courtesy of the magazine:

Download 034-035-IPM_Dec2014_Jan2015-FO2

As with many digital media relationships, partnership and collaboration is going to be the way forward - 'win, win' vs. 'win, lose'.

As this will be my last post of 2014, I'd like to wish all my readers Season's Greetings and very happy New Year.

Regards

Laurie Kaye

A Torrent of Copyright Infringement

Dear reader

Back in the day - well, around 1998 to 2001 when the E-Commerce Directive 2000/31/EC and the  InfoSoc (aka Copyright) Directive 2001/29/EC were being negotiated almost in parallel - a lot of time was spent discussing the role of intermediaries such as ISPs in tackling online infringement. The core challenge was balancing a 'hosting immunity' under Article 14 of the E-Commerce Directive with the need for intermediaries to play an effective role in dealing with online infringement hosted on or accessed via their servers.

The outcome was Article 14 of the E-Commerce Directive and Article 8.3 of the InfoSoc DIrective.  Whilst ISP's as "hosts" have an immunity under the  for hosting illegal content on their servers, Article 8.3 of the InfoSoc Directive provides that "Member States shall ensure that rightsholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right."

Article 8.3 was transposed into UK Copyright law by section 97A of the UK's 1988 Copyright Act, as amended. There have been a series of cases in the UK brought under this section by record companies, on their own behalf and in a representative capacity on behalf of members of the BPI and others, seeking website blocking orders against websites using Bittorent peer-to-peer file-sharing protocol. 

Furthermore, 97A has recently been used to seek a website blocking order to combat online trade mark infringement - see Cartier International AG v British Sky Broadcasting Ltd [2014] EWHC 3354 (Ch)

The latest case on the copyright front line is 1967 Ltd & Ors v British Sky Broadcasting Ltd & Ors [2014] EWHC 3444 (Ch) (23 October 2014). It's a short and very lucid judgment and an excellent way to get up to speed on where the law stands on this issue. Four matters must be established in order to be granted - (1) that the Defendants are service providers; (2) that users (i.e. consumers) and/or the operators of the target websites infringe the Claimant's copyrights; (3) that users and/or operators of the target websites use the defendants' (i.e. ISPs') services to do that; and (4) that the Defendants have actual knowledge.

Mr Justice Arnold had no difficulty in finding all four matters established. Paragraphs 11-23 of the judgment are particularly worth reading, in which he analyses whether users and/or operators of the target websites (i.e. the Bittorent sites) infringe the Claimant's copyrights. He finds that users infringe by copying and communicating to the public the Claimant's works and he also finds that the website operators infringe by communicating those works to the public.

The question of who is the "public" was considered in the CJEU's decision this year in Svensson. In that case, the CJEU decided that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public within Article 3(1) of the Information Society Directive. Essentially, the logic was that as the newspaper material was already freely available on the newspaper's website, a link to that site was not a communication to a "new public", because putting material without restriction (e.g. behind a pay wall) was communicating it the whole world. Once you have 'communicated' a copyright work to the whole world, by definition there cannot be a communication to a new public.

However, in 1967 Ltd & Ors vs. BSB, Mr Justice Arnold said that in the case of the 13 target websites, it is a communication to a new public, "...which is to say a public which was not considered by the rightsholders concerned when they authorised the original communication or other act of dissemination of the recordings."

This case illlustrates the practical importance of Article 8.3/section 97A in combatting online IP infringement, both as regards copyright but trade marks too.

Have a good week,

Laurie Kaye

 

 

 

 

10 Principles of Digital Media

Dear reader

Occasionally, it's good to stand back and try and identify recurring themes amidst the flux and change taking place in the media and creative industries. With that in mind, I'd like to share what I've grandiosely called my '10 Principles of Digital Media'. Here they are.

1. Re-think, not re-invent, the wheel: The core principles and values on which the creative industries are built remain valid in the digital age. But they need to be re-interpreted and applied to meet the demands of an 'always on' world.

2.Design for loss of control: This phrase was coined by J.P. Rangaswami. As media businesses are becoming increasingly a web of collaborative relationships, both 'human to human' and 'machine to machine' (e.g. content via  APIs), we need to build flexibility, extensibility and adaptability into contracts.

3. Make transparency and clarity watchwords of your business: Direct relationships with consumers make it essential that terms of business, consents for using personal information and for granting copyright licences are expressed clearly and transparently. This will build consumer trust and shareholder value. This was exactly the subject of the BBC World News interview I did the other day

4. Think 'work', not format: Copyright provides the basis for developing the narrative of the work or brand in distinctive ways across an ever expanding range of media formats. Whether alone or in collaboration with others, this enables you to build your brand and create valuable derivatives of core creative works.

5. IP is strategic: Make sure that there is a line item in your business plan for your strategy to build, exploit, share and protect your intellectual property in order to create value for your business.

6.'Give to get': A 'command and control' silo strategy for rights will not work in the long term. Be creative in rights ownership and licensing in order to facilitate creation of new works and the generation of revenue for your business.

7. Curation is here to stay:The need for human editors to play a role in gathering, organising and filtering content is here to stay.

8. Use technology: To clear rights, to communicate permissions, to obtain consents and, by so doing, to hide complexity and make life easier for users. In turn, that will lead to bigger and better digital businesses.

9 Collaboration is the name of the digital game. But remember that collaborations come in all shapes and sizes, and can involve partners and competitors too.

10 There is always a solution: Well, almost always! Think "glass half full".

I'd welcome hearing from your additions to the list.Have a good rest of week.

Laurie Kaye

Has Copyright Any Future Role in a World of Disruptive Publishing?

 Dear reader

I remember taking part in a debate at 'Cyberia', one of the first Internet cafes - remember them? - in 1994 about whether the Internet was killing copyright or making it redundant. As I recall, the score was one all. Votes for copyright disappearing down a black hole in Cyberspace were balanced by those in support of a photographer who saw the new medium as an exciting way to market his photographs to a global audience and get paid for it and that copyright was integral to those transactions.

Fast forward 20 years and I'm looking forward to taking part in a debate at the Stationers Company, the first home of copyright, on Monday October 20th at 6:30pm on a similar theme. The debate will be led by publishing industry guru David Worlock, Dominic Young, CEO of the Copyright Hub and me, digital media lawyer and partner in national law firm Shoosmiths.

We're expecting a lot of audience participation and you're warmly invited attend. Booking details can be found in the attached flyer - Download Stationers_Copyright_Event_20.10.14. So if you're coming, please either complete the order form in the attachment or go online to the Stationers’ website, here. In addition to the lively debate and discussion, they'll be some excellent networking.

 Whilst the headline theme might suggest that things haven't moved on that far, in fact we've moved a long way from an existential copyright debate to a focus on practical. consumer-driven solutions. A great example is the Copyright Hub's work to fastrack the development of standards to make licensing simpler or, as I like to put it, moving rights management from the filing cabinet to the network.

Alongside that, there is a lot of action on the legislative front we have seen an expansion to copyright exceptions here in the UK with the introduction of new exceptions for private copying, quotations and parodies and updating for exceptions for non-commercial research, education libraries.

 That said, European Commission Report on the responses to the Public Consulation on the Review of the EU Copyright Rules published earlier this year, whose legislative fate depends on the new Commission's agenda, shows the breadth of copyright issues that remain on the table. They include territoriality, the development of pan European licensing, the scope of exceptions and the continuing discussion about whether to introduce a single European copyright title.

 Furthermore, alongside encouragement for improved licensing and innovative business models, Enforcement of IP Rights, especially as regards commercial piracy vs. consumer infringement, remains firmly on the agenda.

So there's lots to discuss. Hope to see you on October 20th.

Meanwhile, have a good week.

Laurie Kaye 

Innovation, copyright and the role of policy

Dear reader

Thanks to my friend the 'IPKat', I was alerted to the fact that the Directorate General for Internal Market and Services of the European Commission released its Report on the 9,500 responses to the its Public Consultation on the Review of EU Copyright Rules.

You'll find all your favourite topics, including copyright exceptions and harmonisation, territoriality, the workings of the 'making available' right amongst many others. In my next post, I am going to comment on the debate about whether the 'exhaustion' principle and whether it should apply to works in digital form.

But before getting entangled in the policy detail, a really thought provoking paper I read recently made me think about the bigger policy picture and the relationship of policy making and innovation. That, after all, should be the driver behind copyright policy.

The paper is entitled 'Innovation 'as Growth Policy: the challenge for Europe', by Mariana Mazzucato & Carlota Perez, published by University of Sussex as part of the SPRU Working.Paper Series. You can find it here. The paper isn't about copyright per se but I was struck by this in the abstract: The advanced world is facing a crucial moment of transition. We argue that a successful outcome requires bringing innovation to the centre of government thinking and action and that, in order to do this, we must apply our knowledge of how innovation occurs."

The paper discusses 'green growth', a much broader concept than green technologies. I commend the paper to you for 'big picture' thinking, stimulating thought about copyright's role in a flourishing and as a driver of 'green growth'. Here is a passage from the article:

Green growth is more than just low carbon and renewable energies. From a technological point of view, renewables alone do not constitute a synergistic technology system. There is not enough technological convergence in knowledge, suppliers, engineering or skills between solar, wind, wave, geothermal or hydroelectric energy equipment. In order to benefit from all the potential synergies, the environmental challenge must be seen with a wider lens. Apart from the technologies that enable flexibility and interaction in the space of renewable energy, such as batteries, smart grids and the like, the green direction would have to encompass what can be termed green growth. This would include conservation; pollution control; reduction of material content per product; designing for durability; replacing products, possession and waste with services, rental and maintenance and recycling, respectively; promoting the flourishing of the creative economy; making cities more liveable and less polluting; revamping transport systems and the built environment; promoting collaborative and sharing economies; focusing on health (including preventive and personalised medicine);  and  promoting  all  forms  of  education,  in  and  out  of  schools.  This  type  of  growth  implies  a redefinition  of  the  optimal  production  practices  and  a  different  view  of  the  ‘good  life’,  shaping  the  desires  and  aspirations  of  the  majority.  In  other  words,  green  growth  involves  a  gradual transformation  of  the  entire  economy,  reversing  the  mass  production  and  consumption  patterns  of the  previous  revolution  and  making  it  cost effective  and  profitable  to  introduce  a  wide  range  of  innovative  changes  in  production  and  lifestyles  that  would  increase  sustainability  and  reduce  carbon,  while  improving  the  quality  of  life  for  all."

Have a good week. In my next post, I will take a look at the the concept of 'exhaustion' as mentioned in the EU Report, and its relevance to emerging subscription services in the digital content market.

Have a good week,

Laurie Kaye

  

 

 

The '3 Digital Elements' - a balanced future for copyright

 Dear reader

Things will be hotting up soon on the copyright front, with the European Commission's white paper on Copyright due at the beginning of July.

In the meanwhile, I'm really pleased to welcome publication by the European Publishers Council (EPC) of its new vision paper on copyright, entitled "From Vision to Reality: Copyright Enabled on the Network" to which I was a contributor as EPC's copyright advisor. You can find a link to the Press Release, the Paper itself and an Executive Summary here.

The paper has been presented to EC Vice President Michel Barnier with specific recommendations that are designed to help realise the full potential of the media and publishing ecosystem to the benefit of creators and every internet user.

The paper is built around '3 digital elements': the technical infrastructure, specific parts of the legislative framework to be adapted in line with digital media developments, and innovative practical solutions, based on licensing and clear guidelines to promote transparency. The key point is that none of those elements, in isolation, is the solution. That lies in the 3 elements in combination.

Having declared my interest, I am confident that this paper will make a significant contribution to the copyright debate in Europe and beyond, by looking at the challenges from all parties' perspectives. It demonstrates the role that technology will increasingly play in moving rights management fully out of the filing cabinet and onto the network; it pinpoints where there is a case for adaptation to the legal framework and puts forward licensing and other solutions.

So well worth a read!

Have a good week.

Regards

Laurie

Copyright, private copying and unlawful users - are we clear?

Dear reader

The "lawful user" is a really important person in the world of private copying. Put another way, if I am not a "lawful user", can I make private copies of copyright works under a private copying exception? This is really significant for content businesses built on online distribution.

It's a pertinent question, especially as  The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 are due to come into force very soon - June? - as one of the key changes to UK copyright law following the Hargreaves Review. A long running bone of contention amongst user groups is that copyright exceptions did not allow someone who lawfully bought a work, say on  a CD, to copy it to another storage medium, to shift a purchased e-book from one personal device to another or indeed to make a back-up copy to their personal cloud service,

European copyright law, specifically Articles 5 (2) (b) and 5 (5) makes it clear that where a member state introduces an exception to allow private  copying (with or, as in the UK's case, without, levies), it can only apply to lawful copies. So if an individual has an infringing copy, the exception can't apply. This was confirmed in the recent ECJ decision in ACI Adam BV and others v Stichting de Thuiskopie and others.

Fine so far. So what is a 'lawful copy'? Well, my understanding is that it must be a copy of a copy where the first copy has been lawfully acquired i.e. with the consent/licence of the copyright owner. I don't think it also covers private copies of copies made under another copyright exception.

So here's my question - is this clear in the forthcoming Regulation on personal copies? I am not sure. The reason for my uncertainty is the wording of the proposed new section 28B (1) (a) which will be inserted into the UK Copyright Act by the Regulations. This allows the making of a private copy provided it is a copy of the"individual's own copy of the work, or a personal copy of the work made by the individual." (emphasis added).

Whilst the rest of the new section 28B makes clear that an "individual's own copy of the work" is one which has been lawfully acquired, it isn't clear that this applies to "personal copies made by the individual."

If you read the Explanatory Memorandum at the end of the draft Regulation, it seems clear that this is not the intention. But, as drafted, there's a risk that it enables an individual to go online and make a personal copy under the exception, irrespective of the terms of service. It should be remembered that the Regulation expressly overrides any contract term which purports to provent of restrict the making of a copy allowed under the exception.

Whilst June is getting close, let's hope this gets clarified so that it's clear that all copies made under this exception must be lawful copies. As my friend Hugh Jones at the Publishers Association often says, "beware the law of unintended consequences."

Have a good week,

Laurie Kaye

 

 

 

 

 

Copyright, fair use and the advance of culture

Dear reader

A couple of things I read today awoke me from my blogging slumber, and prompted me to post. First, I heard that the European Commission has sensibly extended the date for submitting replies to its  Consultation on EU Copyright Rules from February 2nd (which was ridiculously tight) to March 5th. The other was reading Dr Rimmer's excellent post on the fair use doctrine under US copyright law on TechDirt.

The problem with a lot of the debate about copyright is that it becomes polarised. It's 'big media' vs. the 'little guy'.. It's 'closed copyright, a barrier to innovation' vs. 'open Internet, cultural advancement and freedom of expression'. It's bad guy, good guy. Just to be clear, I'm not accusing Dr Rimmer of that kind of simplified view. It's an excellent piece. It's just that much of the copyright discourse elsewhere gets into that kind of language. It's also not unusual to read that the absence of a 'fair use' doctrine in Europe and elsewhere acts as a break on creativity and a barrier to innovation.

No doubt I could be accused of doing the same thing when I write that copyright is a Darwinian specie, capable of adapting to the network. So if we are going to move into a more nuanced debate, I think it's worth making four basic points:-

Point 1: Idea v. expression - a really important distinction

This is a really important distinction. Copyright does not protect ideas, and ideas are the currency of intellectual creativity.

The World Intellectual Property Organisation (WIPO) administers the Berne Convention, which underpins the international copyright framework. There are 167 contracting parties, including USA, China, EU member states, Asia-Pac countries and many more. (See full list here).

Article 2 of WIPO's Copyright Treaty states that: "Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such." A recent illustration of this distinction was the decision of the UK's Court of Appeal in SAS Institute Inc. vs. World Programming Limited, heard in November 2013. The case was brought by the the software company SAS against a competitor World Programming Limited. In short, the Court re-affirmed that copyright did not protect the SAS software manual because it described the wat the SAS software worked. It contained compilations of formulae, keywords, comments etc. which were, in effect, descriptions of functionality. They were on the 'idea' side of the line and therefore not protected. It is only the expression of an idea which is protected.

 Sure, this was a case about computer software and not a novel. But the principle is the same. It is only the expression of the author's intellectual creation which is protected. So no-one is prevented from taking the underlying ideas.

Point 2: Insubstantial parts aren't protected

It's a basic part but all national copyright laws that the taking of an insubstantial part of a work is not an infringement at all. Sure, there's lots of case law applying both a qualitative and quantitative tests to this but the principle is an important one.

Point 3: Fair use is not unique

 Dr Rimmer's piece illustrates that fair use is a flexible doctrine in US copyright law. And much is written about the 'transformative use' element of the fair use defence. I am not knocking fair use but the balance between the exclusive rights given by copyright and the public interest is also reflected in the so-called '3 step test' in the Berne Convention which underpins most national copyright laws. The language of the Berne Convention is legalistic and of course pre-Internet. But it does prescribe a boundary between exclusive rights on the one hand and permitted uses on the other, where copyright works can be used under exceptions. That is, "...in certain, special cases, which do not conflict with a normal exploitation of the work; & do not unreasonably prejudice the legitimate interests of right holders". So that does give national copyright laws to allow a wide variety of re-uses by private individuals and public institutions for a whole range of 'public interest' uses.

Point 4: Licences can be part of the solution

A lot of valid criticisms are made about licensing, although things are improving rapidly as collecting societies increase the range of licences they offer and 'direct to customer/consumer' online offerings continue to grow. That said, getting a copyright licence can still be a slow, expensive and frustrating process. That's where technology has a role. Consumers would be frustrated if they put their card in a bank ATM to get some cash, and they got a message back saying "We'll check and get back to you" or didn't respond at all.

That's where technology has a role to play. Getting licensing from the filing cabinet onto the network, through machine readable identifiers, rights expressions and licences takes time, financial investment and cross-industry collobration and time. It easn't easy and it does take time.

And that brings me to the really important point. This is too important to all of us in economic, cultural and social terms to indulge in a 'good guy, bad guy debate'. The beneficiaries of a machine-powered copyright framework are all of us. From individual authors, photographers, composers, illustrators to producers and distributors who add value through to you and me as consumer-citizen.

We owe it to ourselves to have a nuanced, mature discussion about this.

Have a good week

Laurie Kaye

 

 

 

Copyright - Of content, technology and copyright (continued)

Dear reader

I'd be sad if - as is quite possible - you hadn't noticed an absence of posts from me since October. But if you have been wondering, my humble apologies. I plead pressure of client work.

Before I get into the subject matter of this post, together with my friends Hugh Jones and Florian Koempel of the Publishers Association, I'm giving a talk on Wednesday December 11 from 4-6pm at Roberts 421 LT, Roberts Building, UCL, immediately followed by a reception in Foster Court, G24, Arts faculty common room. The title is 'Tools, not rules: copyright in the digital age". It's all about the subject of this post. We'd be delighted if you can come and please share this with friends and colleagues. (Ack to my friend Angela Mills who coined the phrase).

Anyway, the title of my last post 'Of content, technology and copyright' still remains relevant, as the European Commission have just published its Consultation on the review of copyright rules. It's incredibly very wide ranging and replies have to be in by February 5th 2014, which is a vert short time scale for such a far reaching review. I can do no better than quote my friend Gemma Hersh, Head of Public Affairs at the Publishers Association who wrote:"The results of this consultation will sit alongside the Commision's desk research and the outcomes of the Licences for Europe plenary to inform proposals for a new Commission in April 2014. This is still looking likely to be a White Paper (our favoured approach) rather than concrete legislative proposals that could bind a new Commission, but either way there is much work to be done."

I agree with Gemma. I can't see how the Commission will have a enough time to digest responses from the consulation and turn them into legislative proposals for the Commission to consider.

As you would expect, a number of the questions in the consultation are about copyright licensing and pan European services. After all, the raison d'etre of the Commission is the single market. But others go to the heart of copyright with questions such as "do we need a single EU copyright title?" and, in effect, "is the term of protection too long?". Whoa! In addition, there are a number of technical questions about copyright, including how the 'making available' right works, and whether the principle of 'country of origin', 'country of desination' (or both) should apply. These directly impact on rights clearance.

I'll be writing more about the consultation. Everyone with a stake in copyright will contribute to the debate and, like a giant tug of war, the 'copyright rope' will be heaved in opposing directions with perhaps a little movement here and there.

 

My own view is that over the next few years, we must focus on streamlining licensing through 'smart, technology powered licensing'. It can overcome the unavoidable complexity of copyright law in a similar way that a few buttons on a 21st century car hides the complexity of the car's electronics from the driver. That said, there is a case for some readjustment to copyright law e.g. around certain copyright exceptions.

 

But this doesn't call for a fundamental re-structuring of the copyright system.

 

Have a good week.

Regards

Laurie Kaye