Transcript Unfinished business: Mr Justice Arnold

EUROPEAN COPYRIGHT REFORM:
UNFINISHED BUSINESS
BLACA/IPI Joint Seminar
14 October 2010
Hon Mr Justice Richard Arnold
Harmonisation of copyright law is
unfinished business
• Ongoing interpretation of existing
Directives
• Pending proposals which may lead to
further legislation
• Other possible areas for further
harmonisation
Unfinished business I: interpretation of
existing Directives
• To date Court of Justice has given relatively few rulings on
interpretation of existing copyright Directives (i.e. Software
Directive, Rental, Lending and Rental Rights Directive, Satellite
and Cable Directive, Term Directive, Database Directive,
Information Society Directive)
• Furthermore, until recently rulings have mainly been on
relatively narrow points without wider ramifications
• This is now an increasing flow of references, particularly under
the Information Society Directive
• As a result Court is starting to make rulings which are building
up a European copyright law
Case C-306/05 Sociedad General de Autores y Editores de España v Rafael
Hoteles SA [2006] ECR I-11519
• Reference asking whether provision of television sets in hotel rooms and
distribution of signal via such TV sets to customers amounted to communication
to the public within Article 3(1) of Information Society Directive
• Court of Justice held that “Community legislation must, so far as possible, be
interpreted in a manner that is consistent with international law, in particular
where its provisions are intended specifically to give effect to an international
agreement concluded by the Community”
• Hence Court interpreted Article 3(1) of the Information Society Directive in
accordance with Article 8 of the WIPO Copyright Treaty and held that
distribution of signal (but not mere provision of sets) was communication to
public
Case C-136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai
Optikoakoustikon Ergon v Divani Acropolis AE [2010] ECR I-0000
• Installing television sets in hotel rooms and connecting them to a central
antenna does amount to communication to the public
Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECR I
0000 (“Infopaq I”)
• Claim that copyrights in literary works, namely newspaper articles, had been
infringed by various acts including reproduction of 11 word extracts
• Questions referred to the Court of Justice concerning reproduction right under
Article 2(a) of Information Society Directive and exception to that right contained in
Article 5(1) of Directive for “temporary acts of reproduction … which are transient
or incidental and an integral and essential part of a technological process whose sole
purpose is to enable a transmission in a network between third parties by an
intermediary or a lawful use of a work or other matter to be made, and which have
no independent economic significance”
• Court held that “copyright within the meaning of Article 2(a) of Directive is liable to
apply only in relation to a subject-matter which is original in the sense that it is its
author’s own intellectual creation”
• Hence Court held that “the reproduction of an extract of a protected work … is such
as to constitute reproduction in part within the meaning of Article 2 … if that extract
contains an element of the work which, as such, expresses the author’s own
intellectual creation”
• Court also held that act of printing out 11 word extracts was not transient in nature
and hence not within Article 5(1) exception
Case C-302/10 Infopaq International A/S v
Danske Dagblades Forening (“Infopaq II”)
• Højesteret asks questions 6-7 and 9-13 of the first
reference concerning interpretation of Article 5(1) again
Case C-467/08 Sociedad General de Autores y Editores v Padawan SL
• Reference essentially asking whether Spanish levy on digital
reproduction equipment, devices and media compatible with Article
5(3)(b) of Information Society Directive exception “for private use and
for ends that are neither directly nor indirectly commercial on condition
that the rightholders receive fair compensation”
• Advocate General Tsrtenjak has advised Court to rule that “fair
compensation” is autonomous Community law concept and that,
although Member States can devise most appropriate criteria for ensuring
compliance, they must ensure fair balance between persons affected
• Hence indiscriminate application of levy to undertakings and
professional persons who clearly acquire digital reproduction devices and
media for purposes other than private copying is not compatible with
Article 5(2)(b)
Case C-387/09 Entidad de Gestión de Derechos v Magnatrading SL
• Reference on interpretation of “fair compensation” for private copying
stayed pending judgment in Case C-467/08
Other pending references (excluding design-related cases):
• Cases C-403/08 Football Association Premier League Ltd v QC
Leisure and and C-429/08 Murphy v Media Protection Services Ltd:
long lists of questions concerning importation into UK, distribution
and possession of non-UK decoder cards which enable access to
transmissions of Premier League football matches including
interpretation of Articles 2(a), 3, and 5(1) of Information Society
Directive (hearing before Grand Chamber on 5 October 2010)
• Case C-393/09 Bezpecnostni Softwarova Asociace v Svaz Softwarove
Ochrany: is graphical user interface part of expression of computer
program within Article 1(2) of Software Directive, and if so is
television broadcasting of a GUI making available within Article 3(1)
of Information Society Directive?
• Cases C-431 and 432/09 NV Airfield v CVBA Belgische Vereniging
van Auteurs, Componisten en Uitgevers: application of Satellite and
Cable Directive to bundled television services
• Case C-462/09 Stichting de Thuiskopie v Van der Lee: where buyer is
established in different Member State to seller, who is liable to pay
fair compensation under Article 5(2)(b) of Information Society
Directive?
• Case C-70/10 Scarlet Extended v Societe Belge des auteurs,
compositeurs et editeurs: whether Information Society Directive
together with Enforcement Directive and other Directives entitle
courts to order ISPs to filter and block file-sharing of copyright
works?
• Case C-135/10 SCF Consorzio Fonografici v Del Corso: do Rome
Convention and WIPO Performances and Phonograms Treaty have
direct effect? Is playing phonograms to patients in dental waiting
rooms making available within Article 3(2)(b) of Information Society
Directive?
• Case C-145/10 Painer v Standard Verlags GmbH: various questions
concerning copyrights in photographs including interpretation of
Articles [1(1)] and 5(3)(d) and (e) and 5(5) of Information Society
Directive
• Case C-162/10 Phonographic Performance (Ireland) Ltd v
Ireland: is distribution of television and radio broadcasts to
hotel rooms communication to public within Article 8(2) of
Rental, Lending and Related Rights Directive and if so is
hotel operator liable to pay equitable remuneration?
• Case C-228/10 Union of European Football Associations v
Euroview Sport Ltd: similar questions to those in Case C403/08 plus questions on Article 6 of Information Society
Directive and Article 7 of Rental, Lending and Related
Rights Directive
• Case C-271/10 CVBA Vereniging van Educatieve en
Wetenschappelijke Auteurs v Belgische Staat: is flat rate
payment for public lending right compatible with Article
6(1) of Rental, Lending and Related Rights Directive?
• Case C-277/10 Luksan v Van der Let: is national law which
assigns exploitation rights in audiovisual works to producer of
work compatible with EU law, in particular Articles 2(1) of 4 of
Rental, Lending and Related Rights Directive and Articles 2, 3
and 5(2)(b) of Information Society Directive?
• Case C-283/10 Circ & Variete Globus Bucureşti v Uniunea
Compozitorilor şi Muzicologilor din România - Asociaţia pentru
Drepturi de Autor: interpretation of “communication to public” in
Article 3(1) of Information Society Directive
• Case C-360/10 Belgische Vereniging van Auteurs, Componisten
en Uitgevers (SABAM) v NV Netlog: similar question to Case C70/10
Case C-406/10 SAS Institute Inc v World Programming Ltd
• Claims for infringement of copyright in software and
accompanying manuals by production of software which
performed same functions after studying operation of
claimant’s software outside scope of licence
• Judgment considers current European jurisprudence in
light of SGAE v Rafael and Infopaq I and impact of Article
2 of WIPO Copyright Treaty [2010] EWHC 1829 (Ch)
• Questions referred to Court of Justice as to interpretation
of Articles 1(2) and 5(3) of Software Directive and Article
2(a) of Information Society Directive (text of questions
available on UKIPO and IPKat websites)
Unfinished business II: pending proposals which may lead to
further legislation
• Commission proposal of 16 July 2008 for Directive amending the Term
Directive so as to extend terms of copyrights in sound recordings and
performers’ rights and Parliament amendment of 23 April 2009
• Commission Communication Copyright in the Knowledge Economy of
19 October 2009 proposed further work in five main areas:
– Libraries and archives: digitisation of collections and electronic
dissemination to users
– Orphan works
– Teaching and research
– Persons with disabilities
– User-created content
• Memorandum of understanding on access for the visually impaired of 14
September 2010
Unfinished business III: other possible areas for
further harmonisation
• Further harmonisation of economic rights beyond that provided by
Rental, Lending and Related Rights Directive and Information
Society Directive
• Further harmonisation of exceptions and limitations beyond that
provided by Information Society Directive e.g. on private copying
• Accessory liability (contributory infringement)
• Contracts dealing with copyright
• Collective management
• Moral rights