Transcript NATIONAL CONFERENCE ON COPYRIGHT DEVELOPMENT IN ALBANIA organized by the World Intellectual Property Organization (WIPO) in cooperation with the Albanian Copyright Office (ACO) Tirana, April 24,

NATIONAL CONFERENCE ON
COPYRIGHT DEVELOPMENT IN ALBANIA
organized by
the World Intellectual Property Organization (WIPO)
in cooperation with
the Albanian Copyright Office (ACO)
Tirana, April 24, 2012
ENFORCEMENT OF RIGHTS
IN THE DIGITAL ONLINE ENVIRONMENT
Dr. Mihály Ficsor
Chairman, Central and Eastern European Copyright
former Assistant Director General of WIPO
I. SPECIFIC ASPECTS OF
ENFORCEMENT IN DIGITAL
ONLINE ENVIRONMENT
M. Ficsor, Tirana, April 24, 2012
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General and specific aspects of enforcement in the
digital, online environment
 The enforcement provisions of the TRIPS Agreement are applicable also
in the new environment in respect of certain acts performed through the
Internet that are covered by rights protected under the Agreement (such
as the right of reproduction or certain forms of communication to the
public).
 However, there are special aspects of enforcement of copyright in the
digital environment, in particular on the Internet:
 strong anti-copyright movements and lobbying based on „copyleft”
ideologies and sheer economic interests, in particular concerning the
„file-sharing” systems, „user-generated content (UGC)” platforms,
and the like;
 remedies, and administrative and criminal sanctions in case of
violation of prohibitions concerning technological measures and
electronic rights management information;
 liability of Internet service providers (ISPs) and other intermediaries
for the infringements committed through the use of their services.
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Anti-copyright ideologies and lobbying (1)
New industries with great economic power and political influence which
are – or at least believe that they are – interested in weaker protection
and enforcement of copyright .
 „Men in black” at the WIPO African regional consultation: representatives
of super-rich IT companies speaking about the interests of consumers and
public-interest establishments.
 Birth and flourishing of improbable alliances; consumer and „public
interest groups” acting in close cooperation with huge IT industries against
„greedy” copyright owners.
 Thesis: it is also against the long-term (or even medium-term) interests of
the IT industries, consumers and public-interests establishments to try to
undermine copyright protection.
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Anti-copyright ideologies and lobbying (2)
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Populist, ultra-libertarian, neo-anarchist theories and movements.
„The cyberspace must remain the realm of complete freedom where international treaties
and national laws have nothing to do.”
 There is no „cyberspace” in reality; it is a metaphor; and legislators should not
regulate a metaphor, but rather the reality to which it relates.
„There is no need for legislative intervention, everything may be settled through a
‘netiquette.’”
 This might sound reasonable around the birth of the Internet (ARPANET), but turned
out to be unrealistic when the global network became a major marketplace and a
favorite channel of mass infringers.
„There is no chance to enforce copyright on the Internet; the freedom fighters of ‘darknet’
will make it sure.”
 Charles Clarke: „The answer to the machine is in the machine.”
„Copyright only serves the interests of copyright industries.”
 A series of WIPO and other studies prove that copyright industries are among the
most important contributors of employment, more important than several
„traditional” industries and, in certain countries, the entire agricultural sector. Free
access to the productions of cultural industries is against the interests of authors,
performers, technical staff, etc, whose contributions are embodied therein.
M. Ficsor, Tirana, April 24, 2012
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Anti-copyright ideologies and lobbying (3)
False presentation of “free software/open source,” “creative commons” “wicki”
systems, the „online democratization” of creativity, etc. as “revolutionary”
alternatives to mainstream copyright.
 Richard Stallman’s free software movement and anarchist slogans: no authorship, no
work, no originality, no creations, no intellectual property; exercising economic rights
by copyright owners is a matter of greed.
 „Forking” between ideology-based free-software and „open source software” as a
business method.
 The „creative commons” movement: adapting the free-software licenses model to
traditional categories of literary and artistic works:
 CC licenses are useful, since offer a uniform system for those who do not want to
exercise their economic rights;
 the system is suitable for those for whom copyright as a source of living is
irrelevant or negligible (academics, researchers, accidental authors, vanity
publishers), for government-owned productions and for those who use it as a
stepping stone to enter the world of mainstream copyright , but it is irrelevant for
typical owners of copyright;
 It is false to speak about it as a „revolutionary” movement „to replace traditional
copyright.”
M. Ficsor, Tirana, April 24, 2012
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Anti-copyright ideologies and lobbying (4)
Ultra-”balancers of interests
 Legends about „constant extension of copyright protection:”
 reality: TRIPS Agreement; nothing much more than some guarantees for prevailing of
the principle of pacta sunt servanda;
 reality: WIPO „Internet Treaties:” changes in order that the essence of copyright may
remain unchanged;
 reality: WIRED report on the results of the 1996 Diplomatic Conference adopting the
WIPO „Internet Treaties” three months after it: „Africa 1 – Hollywood 0.”
 „Copyright is a private right and it should be deemed to be always as of an inferior
importance when faced with public interests, human rights and freedoms, privacy
considerations , competition principles, and the like.”
 Under Article 27(2) of the Universal Declaration of Human Rights, authors’ rights
are also human rights.
 Under Article 17 of the Universal Declaration, the right to property (and its due
protection) is also a human right.
 Balancing by standing only on one end of the see-saw?
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II. NEW WAYS OF USING WORKS
AND OBJECTS OF RELATED RIGHTS
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„File sharing,” „UGC platforms,” etc. (1)
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
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„File sharing” in p2p systems: misleading expression:
 what truly happens is (interactive) making available to the public.
„User-generated content (UGC):” an expression covering different things:
 in case of user-created works, the same rules apply as in the case of any
other works;
 if, however, a user includes a work without authorization into a UGC system
(such as the YouTube) without authorization, it is an infringement of the right
of (interactive) making available to the public.
Folkloristic misbelieves: if somebody infringes copyright without commercial
purpose is not infringement.
 For owners of rights it is not truly relevant whether those who undermine
their chance to enjoy and exploit their rights normally do so for commercial
purposes or without any such purposes, rather just for some confused
„ideological” reasons.
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„File sharing,” „UGC platforms,” etc. (2)
Special characteristics of use of works and objects of related rights
through the Internet facilitating infringements and leading to less respect
for copyright:
 minimum cost of reproduction and distribution;
 low-cost, perfect, efficient and easy-to-operate distribution
network;
 abundant and easy availability of digitized works and objects of
related rights;
 possible absence of widespread legal distribution systems;
 combination of the roles of suppliers and users;
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„File sharing,” „UGC platforms,” etc. (3)
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

Special characteristics of use of works and objects of related rights through the Internet
facilitating infringements and leading to less respect for copyright (continued):
absence of social condemnation of infringements through the Internet; just the
contrary, performing piratical activities through the Internet – mainly among younger
people – has even positive social connotations (something that is fashionable, that
reflects how clever and technically savvy somebody is, that is regarded as a form of
expressing opposition to the “establishment,” and something that makes those involved
to feel as romantic, brave and risk-taking rebels);
certain infringing activities through the Internet were not controlled when it still might
have been possible, as a result of which they have become so much widespread that it
is difficult legally and politically control them;
due to the global, cross-border and ephemeral nature of digital infringements, it is
difficult to detect and combat them;
due to the great number of illegal “file sharers,” it is delicate political task to deal with
the problem.
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III. DIGITAL RIGHTS
MANAGEMENT
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TPMs and RMI (DRM) –
international norms (1)
 Agreement at the 1996 Diplomatic Conference: there was a need for
making it possible the application of, and adequately protecting,
technological measures (TPMs, such as encryption systems) and rights
management information (RMI, such as digital identifiers) – together:
„digital rights management” (DRM) – in order that copyright and related
rights might be exercised and enforced in the digital, networked
environment.
 WCT Article 11 and WPPT Article 18:
„Contracting Parties shall provide adequate legal protection and effective
legal remedies against the circumvention of effective technological
measures that are used by [authors][performers or producers of
phonograms] in connection with the exercise of their rights under [this
Treaty or the Berne Convention][this Treaty] and that restrict acts, in
respect of their [works][performances or phonograms] , which are not
authorized by [the [authors][the performers or the producers of
phonograms] concerned or permitted by law.”
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TPMs and RMI (DRM) –
international treaties (2)
WCT Article 12 and WPPT Article 19:
„(1) Contracting Parties shall provide adequate and effective legal remedies against any
person knowingly performing any of the following acts knowing, or with respect to civil
remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal
an infringement of any right covered by [this Treaty or the Berne Convention][this Treaty]:
(i)to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast or communicate to the public, without
authority, [works] or copies of [works][fixed performances or phonograms] knowing that
electronic rights management information has been removed or altered without
authority.
„(2) As used in this Article, ‘rights management information’ means information which
identifies the [work, the author of the work][the performer, the performance of the
performer, the producer of the phonogram, the phonogram, the owner of any right in the
[work][performance or phonogram], or information about the terms and conditions of use
of the [work][performance or phonogram], and any numbers or codes that represents such
information, when any of these items of information is attached to a copy of a
[work][performance or phonogram] or appears in connection with the communication of [a
work][a fixed performance or a phonogram] to the public.”
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TPM protection – EU norms

The requirement of adequate protection of TPMs can only be duly fulfilled if the protection
extends for both access-control and „copy-control” TPMs and against both acts of
circumvention and „preparatory acts.” The negotiating history of the „Internet Treaties”
confirms this.
 Article 6(1) and (2) of the Information Society (Copyright) („InfoSoc”) Directive:
„1. Member States shall provide adequate legal protection against the circumvention of any
effective technological measures, which the person concerned carries out in the knowledge,
or with reasonable grounds to know, that he or she is pursuing that objective.
„2. Member States shall provide adequate legal protection against the manufacture, import,
distribution, sale, rental, advertisement for sale or rental, or possession for commercial
purposes of devices, products or components or the provision
of services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent,
or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or
facilitating the circumvention of, any effective technological measures.”
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No “access right” (1)
 Contrary to certain allegations, no new „access right” emerges as a result
of application and protection of TPMs and RMI.
 Access to works by users have always been controlled; without it, the
copyright system simply could not have existed. In book shops, record
shops, one has had to pay for copies to get full access; in libraries ,certain
rules have had to be respected in order to receive copies in loan; in case
of theatrical presentations, concerts, etc., buying tickets or other
arrangements have been needed to the members of the public for getting
access.
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No “access right” (2)
 Even the beneficiaries of exceptions have not been able to get access to
copies without any conditions whatsoever. Walking into a bookshop,
taking a book from the shelves and walking out without payment referring
to the „right” of free quotation?

In the digital networked environment, what used to be (i) going to the
video shop, (ii) buying a video recording on a cassette; (iii) bringing it
home, (iv) putting into the player, (v) sitting down and (vi) pressing the
„play” button – has been replaced by a simple click on the keyboard. The
use of TPMs („DRM”) is the normal way of making access conditional to
the payment of a reasonable price or some other arrangement.
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TPM protection and the applicability of
exceptions and limitations (1)


Various methods to guarantee the applicability of exceptions and limitations that are
important from the viewpoint of public interests. For example, in the U.S. certain
outright exceptions and a tri-annual administrative review process.
In the E.U., the Member States are obligated to provide for an appropriate intervention
mechanism under Article 6(4) of the 2001 Information Society (Copyright) Directive:
„Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary
measures taken by rightholders, including agreements between rightholders and other parties
concerned, Member States shall take appropriate measures to ensure that rightholders make
available to the beneficiary of an exception or limitation provided for in national law in
accordance with Article 5(2)(a) [reprographic reproduction], (2)(c) [certain library and educational
uses], (2)(d) [ephemeral recording by broadcasters], (2)(e) [copying of broadcasts in social
institutions], (3)(a) [illustration for teaching; scientific research], (3)(b) [use by people with
disability] or (3)(e) [public security; official procedures] the means of benefiting from that
exception or limitation, to the extent necessary to benefit from that exception or limitation and
where that beneficiary has legal access to the protected work or subject-matter concerned.
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TPM protection and the applicability of
exceptions and limitations (2)
Article 6(4) of the Information Society (Copyright) Directive (continued):
„Member State may also take such measures in respect of a beneficiary of an
exception or limitation provided for in accordance with Article 5(2)(b) [private copying],
unless reproduction for private use has already been made possible by rightholders to
the extent necessary to benefit from the exception or limitation concerned and in
accordance with the provisions of Article 5(2)(b) and (5) [Article 5(5) subjects the
application of all exceptions and limitations to the „three-step test”], without
preventing rightholders from adopting adequate measures regarding the number of
reproductions in accordance with these provisions.
„The technological measures applied voluntarily by rightholders, including those
applied in implementation of voluntary agreements, and technological measures
applied in implementation of the measures taken by Member States, shall enjoy the
legal protection provided for in paragraph 1.
„The provisions of the first and second subparagraphs [see the preceding slide and the
first paragraph on this slide] shall not apply to works or other subject-matter made
available to the public on agreed contractual terms in such a way that members of
the public may access them from a place and at a time individually chosen by them.”
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TPM protection and the applicability of
exceptions and limitations (3)
 The majority Member States apply mediation-arbitration systems as such
intervention measures. In general, the pessimistic forecasts – according to
which the application and protection of TPMs would not guarantee the
applicability of important exceptions and limitations – have turned out to be
unjustified.
 In Hungary, also a mediation system has been provided in the Copyright Law
for which the Hungarian Copyright Council is competent . The system has
been in existence since May 1, 2004, when Hungary became a member of the
E.U. and the author of this presentation has always been the President of the
Council who receives the submissions for mediation and appoints mediation
panels. Thus, he knows the exact number of submissions presented until the
completion of this presentation (March 10, 2011) due to problems that TPMs
made the applicability of certain exceptions and limitations impossible .
 The exact number of submissions received during the more than eight years
between May 1, 2004, and April 10, 2012: 0
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TPM and RMI protection
under the new Law (1)
Article 77. Protection of technological measures
(1) The following acts shall be forbidden, independently of whether or not as a result of them any infringement
of copyright, related rights or other rights protected by this Law may also take place:
(a) the circumvention any effective technological measures by a person who carries out the act of
circumvention in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective;
(b) the manufacture, importation, distribution, sale, rental, advertisement for sale or rental, or possession
for commercial purposes of devices, products or components or the provision of services which:
(i) are promoted, advertised or marketed for the purpose of circumvention of, or
(ii) have only a limited commercially significant purpose or use other than to circumvent, or
(iii) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the
circumvention of,
any effective technological measures.
(2) In the application of this Law, "technological measures" means any technology, device or component that is
designed to prevent or restrict acts in the normal course of its operation in respect of works or objects of
related right, which are not authorized by the owner of rights. Technological measures shall be deemed
"effective" where the use of a protected work or object of related rights is controlled by the owner of rights
through application of an access control or protection process, such as encryption, scrambling or other
transformation of the work or object of related rights or a copy control mechanism, which, in the normal course
of its operation, achieves the protection objective.
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TPM and RMI protection
under the new Law (2)
Article 77. Protection of technological measures (Contd.)
(3) Notwithstanding the legal protection provided for in paragraph (1), in the absence of voluntary
measures taken by the owners of rights, including agreements between them and other parties
concerned, the beneficiaries of the exceptions and limitations provided for in Articles 37, 40(2)
and 41(1)(b), (f), (g) and (h) and (2), or their representative organizations, may request the
Copyright Council established at the Albanian Copyright Office to intervene through an
arbitration procedure to ensure that owners of rights make available to them the means of
benefiting from that exception or limitation, to the extent necessary to benefit from that exception
or limitation, where they have legal access to the protected work or objects of related rights or
other rights provided for by this Law. In such a case, the procedure foreseen in Article 85 shall
apply.
(4) The technological measures applied voluntarily by the owners of rights, including those applied
in implementation of voluntary agreements, or those applied as a result of the mediation
procedure mentioned in paragraph (3) or a court decision, shall also enjoy legal protection
provided for in this article.
(5) The provisions of paragraphs (3) and (4) shall not apply to works or objects of related rights or
other rights provided for in this Law made available on agreed contractual terms in the form of
interactive making available to the public.
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TPM and RMI protection
under the new Law (3)
Article 85. Arbitration in order to provide access to works and objects of related rights for the exercise of
exceptions and limitations in case of application of technological measures
The provisions of Article 84 concerning the arbitration procedure by panels of the Mediation-Arbitration
Body shall apply mutatis mutandis also in those cases where the beneficiaries of the exceptions and
limitations mentioned in Article 77(3), or their representative organizations submit requests for
arbitration with the purpose indicated in that article, with the following differences:
(a) in such a case the physical person or legal entity applying the technological measure shall be
regarded the other party in the dispute;
(b) the arbitration panel shall adopt its decision (arbitration award) within one month of the day of the
when its composition is finalized;
(c) the deadline for possible appeal against the arbitration award – in the absence of which it is adopted
as final decision in the dispute – shall be 15 days of its delivery;
(d) where the arbitration award is adopted as a final decision, it may be executed in the same way as a
court decision;
(e) where the arbitration procedure has been initiated by an organization representing beneficiaries of
exceptions or limitations, the arbitration award or the court decision, respectively, adopted in the dispute
shall be applicable in respect of all members of the organization.
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TPM and RMI protection
under the new Law (4)
Article 78. Rights management information
(1) The following acts shall be forbidden to be knowingly performed by any person without
authority:
(a) the removal or alteration of any electronic rights management information;
(b) the distribution, importation for distribution, broadcasting, communication or
making available to the public of works or objects of related rights or other rights provided
for in this Law from which electronic rights-management information has been removed or
altered without authority,
if such a person knows, or has reasonable grounds to know, that by so doing he is inducing,
enabling, facilitating or concealing an infringement of any copyright, related rights or other
rights provided for in this Law.
(2) In the application of this Law, “rights management information” means any information,
provided by the author or other owner of right, identifying the work or an object related
rights, the author or other owner of right, or information on the conditions of the use of the
work or object of protection, as well as any numbers and codes representing such
information.
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IV. CO-OPERATION BY, AND
LIABILITY OF, INTERMEDIARIES
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Results of lobbying by intermediaries: agreed
statements in the WIPO „Internet Treaties”

Agreed statement to Article 8 of the WCT included as a result of intensive lobbying
by the representatives of ISPs at the December 1996 Diplomatic Conference:
“It is understood that the mere provision of physical facilities for enabling or
making a communication does not in itself amount to communication within the
meaning of this Treaty [the WCT] or the Berne Convention.” (Emphasis added.)
 This agreed statement states something obvious, since it has always been evident
that, if somebody carries out an act other than an act directly covered by a right
provided for in the Convention (and in corresponding national laws), he has no
direct liability. It is another matter that, depending on the circumstances, he may
still be liable on the basis of some other forms of liability, such as contributory or
vicarious liability.
 The international treaties on intellectual property rights, understandably and
rightly, do not cover such issues of liability. The WCT follows this example (and so
does the WPPT).
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Results of ISP lobbying: specific conditions for
limitation of liability
 Special provisions concerning the liability of Internet service providers
(ISPs)– and the conditions of the limitation thereof (in the most detailed
manner in the US Copyright Act and the E.U. Electronic Commerce Directive) –
in respect of different services:
 mere conduit;
 system caching;
 hosting;
 [information location tools].
 Obligation to obey to injunctions even if they are not directly or indirectly
liable for infringements.
 Notice and take down systems: hosting and location tool services may only be
exempted from liability if they, upon being informed of infringing material, act
expeditiously to remove, or disable access to, such material.
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Liability of intermediaries
under the new Law
Article 79. Conditions of limitation of liability of service providers
Without derogation of the provisions of the laws of the Republic of Albania on electronic commerce
and the liability of service providers, service providers shall only be exempted from the liability for
infringements committed by the users of their services, if they fulfill the following conditions:
as soon as they obtain information on the basis of which they know or have reasons to know,
that their hosting or location tool services are used in respect of any material infringing copyright,
related rights or other rights protected by this Law, including when they receive notice about it from
the owners of rights, act promptly to remove such a material from their system or to disable access
to it;
they fulfill duly and promptly any judicial injunction to eliminate or prevent infringement of
copyright, related rights or other rights protected by this Law;
they fulfill duly and promptly any order of law enforcement authorities, and, in the case of civil
procedures, of the court to reveal the identity of those persons who have committed infringements
by using their services, or there are well founded reasons to believe that they have done so;
they have adequate policy against repeat infringers, including the suspension of their accounts
where they continue their infringing activities in spite of repeated warnings communicated them.
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Notice and take down
under the new Law (1)
Article 80. Notice-and-take-down procedure
(1) Owners of copyright, related rights and other rights protected by this Law whose rights have
been infringed by the users of the services of an online service provider the information – shall
have the right to demand the service provider to removal or block access to any material
infringing their rights by the users of the services of the service provider by way of sending a
written notice to the service provider. Such notice shall contain the following:
(a) the subject of the infringement and the indication of the facts that provide reasonable basis to
believe that infringement has taken place;
(b) the data needed to identify the unlawful material;
(c) the name, address of residence or head office, phone number and electronic mail address of
the owner of rights…
(3) Where notice is sent through a representative, a copy of the authorization of the representative,
along with the information mentioned in paragraph (2)(c) concerning the representative, shall also
be attached to the notice.
(4) The service provider shall remove, or disable access to, the infringing material identified in the
notice within 24 hours of receiving the notice, and should promptly inform about this both the
owner of rights and the user of the service concerned.
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Notice and take down
under the new Law (2)
Article 80. Notice-and-take-down procedure
(5) Within 8 days of receiving the information mentioned in paragraph (4), the user of the
service concerned may send a counter-notice to the service provider to demand the reinclusion of the material in the system of the service provider or reestablishing access to it,
respectively. Such counter-notice shall contain the following:
(a) identification of the material removed or made inaccessible;
(b) the network address where the material had been available;
(c) indication of the reasons for which, in view of the user of the service, the material
concerned does not infringe the right of the owner of rights specified in the notice;
(d) information mentioned in paragraph 2(c) concerning the user of the service.
(6) Where the user of the service does not send a counter-notice within the time limit
specified in paragraph (5) or where the counter-notice does not fulfill the requirements
mentioned in paragraph (5), the service provider shall maintain the effect of the removal of,
or disabling access to, the material concerned.
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Notice and take down
under the new Law (3)
Article 80. Notice-and-take-down procedure
(7) In case of a counter-notice, the service provider informs about it and about its contents the owner
of rights within 3 days of the receipt of the counter-notice. Where the owner of rights, 10 days of the
receipt of such information does not present a document to the service provider proving that a civil
or criminal procedure has been initiated, the service provider shall fulfill the demand of the user of
the service presented in the counter-notice. Where the owner of rights presents a document
mentioned in the preceding sentence, the service provider shall maintain the effect of the removal,
or disabling access to, the material concerned until the interim or final decision of the court.
(8) The owner of rights shall be obligated to inform the service provider within 3 days of the interim
or final decision of the court, and the service provider, depending on the contents of the decision,
either maintains the effect of the removal, or disabling access to, the material concerned the
provisions of this article.
(9) The service provider shall not be liable for the removal of, or disabling access to, the material
concerned if he or it acts in accordance with the provisions of this article.
(10) Where the removal of, or disabling access to, the material concerned, turns out to be unjustified
due to the absence of infringement, the owner of rights shall be liable for any damage caused to the
user of the service in accordance with the rules of civil liability.
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V. EMERGING BEST PRACTICES
TO FIGHT ONLINE PIRACY
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Case law (1)
 Napster (A&M Records, Inc v. Napster 239 F. 3d 1004 (9th Cir. 2001). Napster, the
first popular p2p music “file sharing” system, had a central database that allowed
users to find each other and to copy MP3 files from each other’s shared libraries on
their hard drives. Napster has been found liable for contributory infringement
since it could have blocked access to infringing files and it did not do so.

Grokster (Streamcast, Morpheus) (MGM Studios, Inc. v. Grokster Ltd. 125 S. Ct.
2764 (2005). This new generation of p2p systems did not have centralized
directory; the information necessary for “file sharing” was dispersed among the
users of the system. Their business profits from advertisement depended on the
volume of infringing copies transmitted with the use of their software. The US
Supreme Court found that they actively induced infringements.
M. Ficsor, Tirana, April 24, 2012
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Case law (2)



KaZaa (Universal Music Australia Pry Ltd v. Sharman License Holding Ltd (2005) FCA
183.) The Federal Court of Australia has found the company operating the KaZaa
decentralized “file sharing” system for reasons similar to those identified by the US
Supreme Court in the Grokster case. The decision pointed out that no measures had
been applied to prevent infringements although they were available (but their
application would have been against the company’s financial interests). The defendants
also actively promoted infringements under the populist slogan of “KaZaa revolution.”
Pirate Bay (Sony Music et al. v. Fredrik Neij, Gottfrid Swartholm Warg, Peter Sunde
Kolmisoppi and Carl Ulf Sture Lunds Sure Lundström, decision No. B 13301-06 of April
17, 2009, of the Stockholm District Court). The Stockholm District sentenced each of
the four defendants – the operators of Pirate Bay one of the biggest BitTorrent “filesharing” systems – to 1 year’s imprisonment for complicity (aiding and abetting) in
copyright infringements. By providing a website with highly-developed search
functions, simple uploading and downloading procedures, and by linking a tracker to
the website, the defendants abetted the offences which the “file-sharers” were
objectively guilty of. The District Court has also obligated the defendants to pay
compensation for damages to the plaintiff owners of rights in an amount over 30 million
Swedish crowns.
M. Ficsor, Tirana, April 24, 2012
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Case law (3)
 Tele2 A/S (decision October 25, 2006, of the Copenhagen City Court). At
the demand of IFPI Denmark, the court issued an injunction requiring the
ISP to block access to the Russian pirate site allofmp3.com.
 Mininova (decision of August 26, 2009, of the District Court of Utrecht, the
Netherlands). Although the Mininova BitTorrent platform applied a noticeand-take-down system, it did not obey to the demands of owners of rights
that it not only take down but also actively filter and block access to
certain titles about which it was obvious that their use was illegal. The court
obligated Mininova to apply a filtering and blocking system.
 Pirate Bay (decision February 2, 2010, of the Tribunal of Bergamo) The
court has found that it is an obligation of the Italian Internet service and
access providers to block access to the pirate website.
M. Ficsor, Tirana, April 24, 2012
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Case law (3)
British Telecom (High Court of Justice, London, July 28, 2011). The Court has
found in favor of Twentieth Century Fox, Universal Film Studios, Warner Bros.
Entertainment, Paramount Pictures, Disney Enterprises and Columbia Pictures
against the British Telecom.
The High Court judge has ruled that BT must block access to a website which
provides links to pirated movies. The case has concentrated on Newzbin 2, a site
aggregating a large amount of illegal copies of movies on its Usenet „discussion”
forums.
A landmark decision since it was the first time in the UK that an service provider –
one of the biggest ones – has been ordered to block access to such a site. This
certainly will open the way to block other similar illegal sites.
M. Ficsor, Tirana, April 24, 2012
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Case law (4)
GEMA v. YouTube: ruling of the Hamburg Regional Court (Landgericht) of April 20, 2012
 In a widely publicised case brought by German collecting society GEMA against YouTube, the
Regional Court of Hamburg (Landgericht Hamburg) decided that the owners of a video
portal, such as YouTube, are liable for copyright infringing videos uploaded by its users
where the portal does not follow certain control and behavioural duties. When the portal
owners have been alerted of the copyright infringement they have the duty to block the
video without delay and to take measures that are suitable to prevent further right
infringements. There was, however, no duty for YouTube to control and check all videos that
had already been uploaded to the platform.
 YouTube argued that it was not liable for potential copyright infringements: it only provided
platform for its users and had neither made the videos in questions nor uploaded them.
Furthermore, it alleged that it had taken all reasonable measures to prevent copyright
infringements.
The Court disagreed with YouTube. It held that although it was not liable for dircect
infringement, that is for actually having committed the infringing acts itself, it was liable on
the basis of the principle of disturber liability (“Störerhaftung”).
M. Ficsor, Tirana, April 24, 2012
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Case law (5)



GEMA v. YouTube: ruling of the Hamburg Regional Court (Landgericht) of April 20, 2012 (Contd.)
By having provided its video platform, YouTube had contributed to the infringing acts. Thus it was thus liable to stop
the infringing acts as “disturber”. In particular, the defendant did not fulfill its duty to block the videos in question
without delay after the claimant had informed it about the copyright infringements. YouTube only blocked access to
the videos seven months after GEMA’s alert. Such a period of time did not qualify as “without delay”, the judges
found.
As regards to the defendant’s further duties the court stressed that there was the need to conduct a test of
proportionality, by which the respective interests and rights had to be balanced against each other. The court
stressed that there should be no duties imposed on the defendant that would make its per se lawful business
disproportionately difficult. However, the judges found that it was reasonable (“zumutbar”) after having been alerted
of a copyright infringing act to to prevent future uploads of the same musical work (the same recording) by using
filter software. Such software was already available to the defendant in the form of its Content-ID software, which the
defendant had developed itself. The court held that the defendants had to use the software itself and could not leave
this to its users, as the defendant had argued.
The judges made also clear that the defendant had no duty to check all the data/information copyright infringements
that was already uploaded and available on YouTube. Disturber liability, the judges explained, only comes into play
once the defendant had actual knowledge of the actual infringements and its preventive duty only exist for the future
thereafter. To further reduce the number of copyright infringements detected by the defendant’s filter software the
court also held that YouTube had to additionally install a word filter, which was meant to detect newly uploaded
videos whose ‘titles’ included the title of the musical work and its interpreting artist. This was necessary since the
Conent-ID software could only identify identical music recording but would not detect other recordings of the same
work, i.e. it could not detect a live recording based on a studio recording.
M. Ficsor, Tirana, April 24, 2012
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Right of information (1)
Developments in Germany in the lights of the judgment of 29 January 2008 of the
European Court of Justice (ECJ) in the Pro Musicae v. Telefonica case (C-275/06),
according to which, it is possible but not obligatory, under the EU norms to obligate
ISPs to reveal the identity of infringers in civil procedures:
 Before September 1, 2008: no right of information in civil procedures.
 Indirect way: rightholders charged unknown persons for criminal offence and, in
principle, obtained information when the prosecutors investigated.
 The theory of „misusing criminal procedure in order to enable civil actions.”
Prosecutors limited criminal investigations to the most serious cases.
 New legal situation since September 1, 2008, when the law implementing the
Enforcement Directive entered into force introducing a right of information in civil
proceeding (courts may order revealing information when infringements are
obvious).
M. Ficsor, Tirana, April 24, 2012
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Right of information (2)
Developments in Sweden in the lights of the judgment of 29 January 2008 of the
European Court of Justice (ECJ) in the Pro Musicae v. Telefonica case :
 In Sweden, before April 1, 2009 (as in Germany before September 1, 2008)
owners of rights were only able to obtain information on the identity of online infringers by reporting to the police to launch criminal investigation
(however, the police, in many cases, was quite reluctant to act).
 The Swedish law to implement the Enforcement Directive entered into force
on April 1, 2009.
 The new law made it possible for courts to order in civil procedure that an ISP
reveal the identity of „file-sharers” and other infringers.
 Within a couple of days after the entry into force of the new law, the Swedish
Internet traffic dropped by 33%, obviously due to the decrease of the volume
of illegal „file-sharing” traffic.
M. Ficsor, Tirana, April 24, 2012
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„Graduated response”(1)


„Graduated response” – “three strikes” – model applied or considered in certain
countries (Republic of Korea, US, New Zeeland, Canada, Ireland, Italy, etc.) The new
French legislation has been followed with the greatest attention. (The introduction of
a similar system is under consideration in the U.K.).
First version of the French law adopted in May 2009 foresaw the following system:
 The Government will establish a new administrative body to operate a warning
and sanction mechanism (the „HADOPI”).
 Rights holders will use DRM mechanisms (such as, watermarks, fingerprinting,
filters etc) to make infringement more difficult and – provided that the warning
and sanction system functions effectively – will bring on-demand and physical
video release dates in line, make audiovisual material available on-line earlier
and make musical productions available online.
 Internet service providers will send warnings and implement sanctions as
required by the new law, acting under the direction of the HADOPI, test and
implement filters and work with rights holders to use and improve DRM systems.
)
M. Ficsor, Tirana, April 24, 2012
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“Graduated response” (2)

„Graduated response;” first version of the French law (continued):

The HADOPI will issue a warning to infringers by email, followed within a month (if the
infringing activity continued) by a second warning. If the infringing activity still continues,
the third step will be the real „strike:” the Internet account of the offender may be
suspended up to one year.
 A database will be established of repeat infringers whose accounts are to be suspended
and it will be prohibited to Internet service providers to open account for them during the
period of suspension.
 The sanction to be applied against infringers will be at the level of minor crimes, but
serious fines will be applied against Internet service providers if they do not act in
accordance with the law or open account for users included in the database as owners of
suspended accounts.
 The French Constitutional Court in June 2009 found the first version of the law
unconstitutional because the ultimate suspension – the third strike – was to be decided
upon by an administrative body rather by a court.
 In July 2009, the Senate, and then in September 2009, the National Assembly, adopted
the final text of the law under which the decision on the „third strike” would be taken by
a court.
M. Ficsor, Tirana, April 24, 2012
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Cross-industry cooperation (1)
An example: the „UGC principles:” www.ugcprinciples.com. Key elements:
 UGC Services should use effective content identification technology
(“Identification Technology”) with the goal of eliminating from their
services all infringing user-uploaded audio and video content for which
Copyright Owners have provided Reference Material. To that end…, UGC
Services should fully implement commercially reasonable Identification
Technology that is highly effective,…in achieving the goal of eliminating
infringing content.
 If a Copyright Owner has provided: (1) the reference data for content
required to establish a match with user-uploaded content; (2)
instructions regarding how matches should be treated; and (3)
representations made in good faith that it possesses the appropriate
rights regarding the content (collectively, “Reference Material”), then the
UGC Service should apply the Identification Technology to implement a
Filtering System.
M. Ficsor, Tirana, April 24, 2012
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Cross-industry co-operation (2)
UGC principles (continued):
 UGC Services and Copyright Owners should work together to identify sites that
are clearly dedicated to, and predominantly used for, the dissemination of
infringing content or the facilitation of such dissemination. Upon determination
by a UGC Service that a site is so dedicated and used, the UGC Service should
remove or block the links to such sites. If the UGC Service is able to identify
specific links that solely direct users to particular non-infringing content on such
sites, the UGC Service may allow those links while blocking all other links.
 UGC Services should use reasonable efforts to track infringing uploads of
copyrighted content by the same user and should use such information in the
reasonable implementation of a repeat infringer termination policy. UGC Services
should use reasonable efforts to prevent a terminated user from uploading audio
and/or video content following termination, such as blocking re-use of verified
email addresses.
M. Ficsor, Tirana, April 24, 2012
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Cross-industry co-operation (3)
UGC principles (continued):
 The Identification Technology should use Reference Material to identify useruploaded audio and video content that matches the reference data and should
permit Copyright Owners to indicate how matches should be treated.
 If the Copyright Owner indicates in the applicable Reference Material that it
wishes to block user-uploaded content that matches the reference data, the UGC
Service should use the Identification Technology to block such matching content
before that content would otherwise be made available on its service (“Filtering
Process”). The Copyright Owner may indicate in the applicable Reference Material
that it wishes to exercise an alternative to blocking (such as allowing the content
to be uploaded, licensing use of the content or other options), in which case, the
UGC Service may follow those instructions or block the content, in its discretion.
M. Ficsor, Tirana, April 24, 2012
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Cross-industry co-operation (4)
YouTube’s audio and video identification system:
 Rights holders deliver YouTube reference files (audio-only or video) of
their protected content , metadata describing that content, and policies
on what they want YouTube to do when it finds a „match.”
 YouTube compare content uploaded to YouTube against those reference
files, and its identification technology (with filtering function)
automatically identifies the protected content .
 In case of a „match,” YouTube and applies the rights owner’s preferred
policy: (i) authorizing and monetizing, (ii) only tracking, or (iii) blocking
(taking down).
M. Ficsor, Tirana, April 24, 2012
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THANK YOU
FALEMINDERIT
[email protected]
M. Ficsor, Tirana, April 24, 2012
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