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

UKSC judgment in Cartier – who pays for website blocking orders?

In a blow for rights-holders, the UK Supreme Court (UKSC) has today decided that ISPs should not bear the implementation costs for website blocking orders in Cartier International AG and others v British Telecommunications Plc and another [2018] UKSC 28.   Whilst the UKSC has endorsed the availability of blocking orders for rights-holders, it has reversed the costs position, finding that rights-holders should indemnify the ISPs for the reasonable costs of implementing the orders.

This is a very important case in relation to the ability of brand owners and others to obtain blocking injunctions against intermediaries, such as ISPs to prevent third party website operators offering infringing or counterfeit branded products. The UKSC decided the pivotal question of who should bear the cost of implementing blocking orders, in terms of deploying monitoring, filtering and web blocking technology – the ISP or the brand owner?

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Targeting Online Risk

In our latest publication in our Future of Consumer series on issues facing the Consumer sector, we look at some of the online risks threatening businesses today.

We examine the options available to tackle IP infringements online, such as the sale of counterfeit goods, with a focus on the most powerful weapon for rights holders – blocking junctions from the courts. We also provide some practical tips to help tackle and combat online infringements.
Authors

Joel Smith
Joel Smith
Head of IP - UK
+44 20 7466 2331
Sarah Burke
Sarah Burke
Senior Associate, London
+44 20 7466 2476

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

 

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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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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