Category: Copyright

Germany’s wifi laws

Germany wifi (German flag detail and wifi icon via Wikipedia)In the early days of this blog, I wrote three posts on whether there is a criminal or civil legal liability for using other people’s wifi without permission.

I was reminded of these posts yesterday, when Edmund Heaphy (a student in Trinity, and a journalist at Quartz) contacted me about the following story:

The unique legal concept that led to Germany’s weird wifi laws

Germany is about to get a lot more free wifi. One of the country’s highest courts has upheld a 2017 law designed to put an end to the effect of a peculiar legal concept known as Störerhaftung as it applies to public wifi networks. …

Whilst the decision of the Bundesgerichtshof (Federal Court of Justice) is very welcome, German lawyers have told the World Intellectual Property Review that more clarity is needed. As Mateusz Rachubka points out o the 1709 Blog, the 2017 legislation is a result of the decision of the CJEU in Case C-484/14 Tobias McFadden v Sony Music Entertainment Germany GmbH, which held that the eCommerce Directive (Directive 2000/31/EC; OJ 2000 L 178, p. 1) precluded a rights-owner seeking damages from an access provider whose open network was used by a third party to upload or download material that infringed copyright, but did not preclude the rights-owner seeking an injunction requiring the access provider to terminate or prevent a copyright infringement.

Blocking injunctions in the Irish and UK courts after Sony v UPC and Cartier v BT – Part I – Jurisdiction

Sony, Sky, Cartier (logos via sony.ie sky.com cartier.co.uk)In today’s Irish Times, Mark Paul reports that “three global music labels are limbering up to seek a High Court order against Sky Ireland to force it to implement a ‘three strikes and you’re out’ policy against its broadband customers who download music from pirate sites”. In Sony Music Entertainment Ireland Ltd v UPC Communications Ireland Ltd [2016] IECA 231 (28 July 2016) [hereafter: Sony v UPC] the Court of Appeal held that the courts could indeed make just such an order, and that the costs of implementing it were to be borne 80% by the internet service provider, and 20% by the copyright rights-owner (subject to a cap). No doubt, the three labels involved in the action reported in the Irish Times – Sony Music Entertainment, Warner Music and Universal Music – will rely on this case in their action. However, since it was decided, the UK Supreme Court has handed down its decision in Cartier International AG v British Telecommunications plc [2018] 1 WLR 3259, [2018] UKSC 28 (13 June 2018) [hereafter: Cartier v BT], and it stands in stark contrast with Sony v UPC. The structure of both cases is exactly the same: a holder of intellectual property rights seeks an injunction against an online intermediary to prevent infringement of the rights-holder’s rights on the intermediary’s platform, and the intermediary seeks an order that the rights-holder should bear (some at least of the) costs of implementing the injunction. However, the resolution of the issues in both cases differs quite substantially: the UK Supreme Court in Cartier v BT granted the injunction on a basis rejected by the Irish courts, and it imposed the costs of its implementation entirely on the rights-holder seeking it. The application reported today provides an appropriate context in which to consider these issues. The basis of the injunctions in Sony v UPC and Cartier v BT will be discussed in this post, and the differing costs orders will be discussed in a subsequent one.

In Sony v UPC, the Court of Appeal upheld an order made by Cregan J in the High Court [Sony v UPC (No 1) [2015] IEHC 317 (27 March 2015)] requiring an internet service provider to implement a graduated response system against customers who infringe copyright. The system is graduated, because the responses range from initial warning letters to applications for to court for disconnection of the infringing customers. And the order was made on foot of section 40(5A) of the Copyright and Related Rights Act 2000 (also here) [hereafter: CRRA]. The case is the most recent reported stage of litigation between copyright rights-owners (such as music and movie companies) and internet service providers that has been ongoing since 2005. (more…)

On world IP day, a note of caution: the EU Copyright Directive is failing

Element of WIPday imageToday is World Intellectual Property Day. On a day to celebrate the role that intellectual property rights play in encouraging innovation and creativity, we should take care that IP law does not achieve the opposite result. I blogged yesterday about the press publishers’ right in Article 11 of the proposal for a Directive on Copyright in the Digital Single Market. Today, I’m staying with the proposed Directive, and with another open letter (pdf, via here) that I’ve signed articulating some of its shortcomings. In this letter, academics from 25 leading Intellectual Property research centres in Europe express grave concerns at the legislative direction of the proposed copyright Directive, and in particular with Articles 3, 11 and 13:

  • the proposed exception for text-and-data-mining in Article 3 will not achieve its goal to stimulate innovation and research if restricted to certain organisations,
  • the proposals for a new publishers’ right under Article 11 will favour incumbent press publishing interests rather than innovative quality journalism [I blogged about this yesterday], and
  • the proposals for Article 13 threaten the user participation benefits of the e-Commerce Directive (2000/31/EC) which shared the responsibility for enforcement between rightholders and service providers [I blogged about this at an earlier stage in the process].

Poetry Day Ireland logoToday is also Poetry Day Ireland; but poetry the proposed Directive certainly is not. But you govern in prose; and the prose of the proposed Directive could be improved by revisting Article 3, 11 and 13.

169 European academics warn against the press publishers’ right proposed by the EU Commission

Copyright?DSMIn a statement published this morning, 169 academics working in a variety of fields from all over Europe give a final warning against the EU Commission’s ill-conceived plans for the introduction of a new intellectual property right in news.

Here are some extracts from the statement:

Statement from EU Academics on Proposed Press Publishers’ Right

We, the undersigned 169 scholars working in the fields of intellectual property, internet law, human rights law and journalism studies at universities all over Europe write to oppose the proposed press publishers’ right.

Article 11 of the proposal for a Directive on Copyright in the Digital Single Market, as it currently stands following negotiations in the EU Council and Parliament, is a bad piece of legislation. … The proposal would likely impede the free flow of information that is of vital importance to democracy. This is because it would create very broad rights of ownership in news and other information. … This proliferation of different rights for established players would make it more expensive for other people to use news content. … The proposed right would provide no protection against ‘fake news’. … There is no sound economic case for the introduction of such a right.

The academic community is virtually unanimous in its opposition to the European Commission’s proposal for a press publishers right. … it is important to understand that press publishers already have very significant rights in their publications. … [Moreover], Rapporteur Voss’s proposed amendments will make matters even worse. …

Conclusion
We call on all MEPs to oppose the Commission proposal, and with yet more determination, Mr Voss’s amendments. It is time to reject, once and for all, this misguided legislative reform.

My colleague, Giuseppe Mazziotti, and I are among the signatories. Read the full statement here (pdf) or here (html). It joins an open letter earlier this month from 56 organisations encouraging the deletion of Article 11.

Digital resource lifespan, via xkcd; or why copyright law must permit digital deposit

xkcd 1909 Digital Resource Lifespan

The description for this picture provides:

I spent a long time thinking about how to design a system for long-term organization and storage of subject-specific informational resources without needing ongoing work from the experts who created them, only to realized I'd just reinvented libraries.

This picture is worth many thousand of my words:

The copyright implications of a publicly curated online archive of Oireachtas debates

Former Legal Deposit Office, Paris; image via Wikipedia
Former Legal Deposit office,
Rue Vivienne, Paris
via Wikipedia (element)
From a twitter thread by Philip Boucher-Hayes last week, I learned that Ken Foxe had reported in the Irish Mail on Sunday that nearly ten years of video footage of Oireachtas debates and hearings had been taken offline. A spokesperson for the Houses of the Oireachtas said that the videos were removed because they had little traffic and were in an obsolete format. However, after an outcry online, the footage was restored, though with limited functionality. To overcome first the takedown, and then the limitations, various concerned netizens – including, I understand, Gerard Cunningham, Emerald De Leeuw, Elaine Edwards, and Sterling Plisken – have begun work on a publicly curated online archive of Oireachtas debates and hearings.

This is not the first time that civil society has had to step up when public functions have stepped back (see the story of the demise and return of KildareStreet.com, with various backups here and here). So, I think that a publicly curated online archive of Oireachtas debates is a fantastic idea, and I hope it prospers. It also provides a context in which I can discuss an important issue relating to Oireachtas copyright and digital deposit.

First, the Oireachtas holds copyright in the broadcast material. Chapter 19 of Part II of the Copyright and Related Rights Act, 2000 [CRRA] (that is, sections 191 to 195 CRRA (also here and here)) provides for Government and Oireachtas copyright. In particular, section 193(2)(b) CRRA (also here)
provides that the Oireachtas holds copyright in “any sound recording, film, live broadcast or live cable programme of the proceedings of either House of the Oireachtas”. So, the starting point of the copyright analysis has to be that the Oireachtas could therefore in principle rely on this copyright to restrict the reproduction of the Oireachtas broadcasts, or making them available online.

Second, there is, however, an exception which might permit at least some of the work of a publicly curated online archive of Oireachtas debates and hearings. Section 71(1) CRRA (also here) provides

The copyright in a work is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purpose of reporting those proceedings.

The question, therefore, is whether a publicly curated online archive of Oireachtas debates and hearings is reproduced and made available for the purposes of “reporting” Oireachtas proceedings within section 71 CRRA. There is a comprehensive discussion of the issue by Simon McGarr on his Tuppenceworth.ie blog. I think that the argument that the archive would be a report for the purposes of section 71 CRRA could go a very long way towards permitting the production of a publicly curated online archive of Oireachtas debates and hearings. However, there must be limits to what constitutes a “report”. And it may be that the archive exceeds them, at least in some respects.

Third, if section 71 CRRA isn’t enough, then a current reform process might provide another exception to permit the production of a publicly curated online archive of Oireachtas debates and hearings. (more…)

Legal deposit of digital publications

Digital Deposit, via NLAThe Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs, on behalf of the National Library of Ireland, is currently undertaking “a consultation on the legal deposit of published digital material in the 21st century in the context of copyright legislation” (see here and here). In particular, the Department welcomes submissions in relation to three questions:

Question 1: Should the policy of collecting, preserving and making available the published output of the nation for the benefit of the public be extended to include all contemporary publication formats of Irish interest including online digital formats e.g.,.ie websites?

Answer: Yes.
I have already set out my views on this issue on this blog. The starting point is Section 198 of the Copyright and Related Rights Act, 2000 (also here), which provides that publishers of books and other paper publications must deliver a copy of each book or publications published in the state to various copyright deposit libraries. Most countries worldwide have similar provisions, and they ensure the preservation and the availability of a nation’s published heritage. With the rise of digital publishing, it is increasingly being recognised that print deposit is incomplete, and that a comprehensive preservation of a nation’s published heritage requires that copyright deposit should extend to online publications as well. As a consequence, countries with copyright deposit legislation are amending their legislation to ensure that generations of will have access to today’s online stories. As a consequence, the Copyright Review Committee (of which I was chair), in the Modernising Copyright Report (pdf), recommended amendments to the 2000 Act to extend the existing copyright deposit regime for print publication in section 198 to digital works. In particular, we recommended some changes to the existing section 198; and we recommended a new section 198A broadly modelled on the existing section 198 CRRA, to ensure that the process of claiming digital publications is as similar as possible to the existing familiar process relating to books and other print publications. And we additionally recommended that the copyright deposit institutions should be able to make copies of our online digital heritage whilst it is available. No doubt our recommendations and drafts can be improved, but I remain convinced that they are an excellent starting point for achieving a feasible digital copyright deposit regime in Ireland.

CRC Link Rot, via SC HealyQuestion 2: What issues arise if a policy extension on digital legal deposit is not provided for?
Answer: The real point about the size of the digital universe in the future is not about how big it will be (it will be huge) but how much is being lost (that is also huge). To take only one example, Sharon Healy did a study of link rot in the Modernising Copyright Report, and she concluded that 20% of the links in the footnotes of that Report are broken, meaning that the linked resource is no longer available. And our sources were official or public ones. To my mind, this is a perfect encapsulation why copyright deposit institutions should be able to claim digital publications and make copies of online resources – even the formal material is disappearing at frightening pace. In the US, the nonprofit Internet Archive harvests more than 250m webpages a week; it is now more than 20 years old. However, the copying by any Irish equivalent would infringe copyright in the material harvested, which is why an amendment to copyright legislation is necessary; we are already 20 years late; and the longer we wait, the bigger and blacker the digital black hole of lost material will become. It is a challenge our libraries and heritage institutions are willing to meet, if only they are let.

Data is the new oilQuestion 3: What are the benefits if a policy extension on digital legal deposit is provided for?
Answer: The benefits will be not only cultural but also economic. On the cultural side, exciting projects in TCD Library and the NLI show the potential. On the economic side, the cover story of this week’s Economist tells us the world’s most valuable resource is no longer oil, but data. To take only one example, the field of Artificial Intelligence (AI) is red hot, but researchers need data on which to train and develop their AI engines. The loss of culturally significant data diminishes AI data-sets and impoverishes decisions based upon them. More generally, a proper archive of digital publications will be a resource for citizens and researchers, at home and abroad, now and in the future. The generations to come will not thank us if we do not legislate now for legal deposit of digital publications.

The IUA (and THEA) should follow the lead of their Dutch and German counterparts in their negotiations with large publishers

A little while ago, I argued on this blog that Irish competition and copyright law should be amended to enable open access to universities’ research. In particular, the Irish Universities Association (the IUA), the representative body of the universities which employ academics whose research is published by the large publishers should negotiate the terms on which their employees will transfer copyright in their research and content to the publishers. They could this, either on their own, or jointly with the Technological Higher Education Association (the THEA), the representative body for Institutes of Technology in Ireland. This co-ordination and collaboration could improve the terms offered by publishers both to individual academics when submitting their research for publication, and to institutions for subscriptions to research resources – and it could in particular pave the way to ensuring greater open access to research. Because such co-operation could amount to an anti-competitive agreement, decision or concerted practice in breach of section 4 of the Competition Act, 2002, I suggested in that post an amendment to that section. I now learn that similar joint-action has been taken in the Netherlands and Germany, and without such legislative cover.

The deal between the Association of Universities in the Netherlands and Elsevier (joint press release) was concluded at the end of November:

In unique deal, Elsevier agrees to make some papers by Dutch authors free

A standoff between Dutch universities and publishing giant Elsevier is finally over. After more than a year of negotiations—and a threat to boycott Elsevier’s 2500 journals—a deal has been struck: For no additional charge beyond subscription fees, 30% of research published by Dutch researchers in Elsevier journals will be open access by 2018.

“It’s not the 100% that I hoped for,” says Gerard Meijer, the president of Radboud University in Nijmegen, the Netherlands, and the lead negotiator on the Dutch side. “But this is the future. No one can stop this anymore.” …

The German action, taken by the Alliance of German Science Organisations, represented by the German Rectors’ Conference, is similar:

No full-text access to Elsevier journals to be expected from 1 January 2017

From 1 January 2017 on, Göttingen University — as well as more than 60 other major German research institutions — is to be expected to have no access to the full texts of journals by the publisher Elsevier. …

The DEAL project, headed by HRK (German Rectors’ Conference) President Prof Hippler, is negotiating a nationwide license agreement for the entire electronic Elsevier journal portfolio with Elsevier. Its objective is to significantly improve the status quo regarding the provision of and access to content (Open Access) as well as pricing. It aims at relieving the institutions’ acquisition budgets and at improving access to scientific literature in a broad and sustainable way. …

Given that the Netherlands and Germany have competition laws similar to section 4, I find it interesting that the publishers came to an agreement in the former and are continuing to negotiate in the latter, in both cases without recourse to the powerful Dutch or German competition authorities. I hope that the Germans are as successful as the Dutch were, and that the IUA (perhaps jointly with the THEA) will soon follow suit.