EU Digital Copyright Directive – European Parliament adopts amended text

In the second reading of the Digital Copyright Directive by the European Parliament on 12 September 2018, the controversial Articles 11 and 13 were adopted but with amendments.

These articles provide for:

  • a specific right of digital reproduction for the press in relation to their publications under Article 11, which includes the right to prevent others from reproducing their material (amendments shown here in italics):  “Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers“.  These rights would not be retrospective and would expire 5 years from publication (calculated from the first day of January of the year following the date of publication).  Personal, non-commercial use is not to be caught by this provision and mere hyperlinking is to be allowed). However,”Member States shall ensure that authors receive an appropriate share of the additional revenues press publishers receive for the use of a press publication by information society service providers“.
  • protection of the interests of rights-holders in protected material which is communicated to the public via online content sharing services under Article 13: The providers of these services store and give access to large amounts of works and other subject-matter uploaded by their users and the amended text requires them to ensure its integrity and security and agree licence terms for such use or to prevent works being made available if requested by the rights-holders. Complaints procedures must also be provided for, including “human review”.

However, since the adopted text is not the same at the European Parliament’s first reading, the text now needs to go through the informal trialogue negotiations procedure. This involves discussions of the text between the European Parliament, Council and Commission in order to establish an agreed text, which may take some time The negotiation of these provisions will be followed with great interest by the major online platforms, content industry and publishers.

The adopted text can be viewed here.

Author

Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, London
+44 20 7466 2217

Innovation Disruption and Technology – the legal and commercial issues for your business

Drawing on our practitioners’ experience and understanding of the intellectual property and technology issues facing our clients in the fast changing world in which we all now do business, we made innovation and disruptive technology the key themes at our 2018 IP Update Conference.

Described by one attendee as “The perfect mixture of commercial and legal content”, the event was held in our London offices in February 2018. We were joined by over 140 clients from the Technology, Banking, Consumer, Energy, Manufacturing, Media, Pharmaceutical & Healthcare, and Telecommunications sectors.

Click here for a briefing summarising the legal and commercial issues raised by the Herbert Smith Freehills presenters and our keynote speaker Kevin Mathers, Country Director at Google UK.

Our keynote speaker, Kevin Mathers, set the scene by discussing the current technological landscape for innovation and how Google looks at the future. Taking examples of how artificial intelligence, augmented reality and virtual reality are already being used by Google and looking at the major trends which will dictate our digital future. Kevin’s presentation was a great success, with attendees describing it as “really insightful and inspirational”; “engaging and interesting” and “stimulating and thought-provoking”.

The conference continued with sessions on

  • tackling the impact of AI on your business,
  • on-line risk,
  • open innovation,
  • interoperability and product standards, and
  • targeted advertising and the GDPR.

There was also a panel session at the end of the conference to discuss the issues facing businesses in relation to disruptive technology with contributions from partners and of counsel across the IP and IT practice areas and from several of our European offices.

Clients were impressed by the range of issues presented by the speakers and the practical approaches offered.

 

Joel Smith
Joel Smith
Head of IP - UK
+44 20 7466 2331
Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, London
+44 20 7466 2217

 

CJEU RULES THAT A CLOUD BASED SERVICE FOR REMOTE RECORDING IS A COMMUNICATION TO THE PUBLIC AND SO MUST OBTAIN THE RIGHTS HOLDERS’ CONSENT

This is a further case which reinforces the importance and strength to rights holders of the right to communicate a copyright work to the public provided by Article 3 of the Copyright Directive (2001/29). The CJEU held that a cloud based remote recording service amounted to a communication to the public and could not fall under the private copy exemption, which was to be interpreted strictly, and therefore the rights holders’ consent was required. (Case – 265/16 VCAST v RTI SpA.).

Business impact

  • This decision is good news for rights holders, as they will be able to take action against service providers who do more than simply provide copying services to users who are in turn relying upon a private copying exemption.
  • The CJEU decision reiterates Reha Training (C-117/15) that the communication to the public is a key right which enables rights holders to exert control over their copyright works if a service provider provides a new and different technical means of transmission to a new public for which there is no consent.
  • The case gives guidance to those providing recording services via the internet and cloud storage, and to rights holders, as to where the boundaries are to be drawn, and confirms the CJEU approach that the exceptions to copyright which can be provided by the Member States will be interpreted narrowly.
  • Whilst the UK has no private copying exception enacted, the case provides a useful reminder of the CJEU’s strict approach to interpretation of exceptions to copyright.
  • The VCAST decision continues the CJEU’s line of cases where interpretation of communication to the public has been interpreted broadly. In April we gave an update on the CJEU guidance on communication to the public following the Filmspeler decision (C-527/15) which was then applied in The Pirate Bay (C-610/16) (reported here). Similarly in the VCAST decision, the CJEU was clear that the provision of the service via the internet and cloud storage where initial broadcast was on territorial TV was sufficient to infringe, if the rights holder had not consented.

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Unlawful streaming is as infringing as unlawful downloads – Further guidance from the CJEU on “communication to the public”

The CJEU has issued its ruling in Filmspeler that the sale of a multimedia player specifically configured to link to websites on which protected works are made available to internet users, without the consent of the copyright holders, is a ‘communication to the public’ within the meaning of the InfoSoc Directive, and hence an actionable infringement.

This decision follows a number of CJEU decisions in which the meaning of 'communication to the public' has been discussed and broadens the potential group of defendants who might now be regarded a primarily liable for unauthorised acts of 'communication to the public' to those who sell piracy-enabled set-top boxes, such as those supplied with software like the neutral Kodi streaming platform, to which add-ons have been installed, designed to receive protected works (such as films, TV shows or live sports) that are made available to internet users without the consent of the copyright holders, with minimal input from the end user.

1. Business Impact

2. The Decision

3. Brexit

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High Court orders ISPs to block their customers from receiving unauthorised streaming of Premier League football matches

Following on from a number of decisions in which internet service providers (ISPs) were ordered to block their customers from accessing websites whose content infringed the rights of intellectual property owners, the High Court has granted an order sought by the Premier League that requires 6 major ISPs to block access by their customers to servers that stream live unauthorised footage of Premier League matches (The Football Association Premier League Limited V British Telecommunications and Ors.  [2017] EWHC 480 (Ch)).

Business Impact

  • The decision is the latest in a series of cases which demonstrate that the Court recognises that advances in technology mean that there are now additional methods in which intellectual property rights may be infringed and it is willing to be creative and to grant orders to protect those rights.
  • The decision will be welcomed by owners and licensees of broadcasting rights in live sporting and other events and is likely to set a precedent for forms of order against providers of unauthorised streaming services in the future.

The decision is of interest for the following reasons:

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Hyperlinking to material on the internet – CJEU expands on the circumstances when it may amount to copyright infringement

In a further key decision on hyperlinking and copyright, the CJEU has held that creating hyperlinks may be a communication to the public and so may amount to copyright infringement, if the creator of the hyperlinks knows or should have known that the material to which they are linking has been posted without the copyright owner's consent. Further, if hyperlinks are created for financial gain there is a greater duty to check that the material is freely available before creating the link.

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