WIPO LLM 21 (6) (NTD)

Voluntary own-initiative investigations and legal compliance

Providers of intermediary services shall not be deemed ineligible for the exemptions from liability referred to in Articles 3, 4 and 5 solely because they carry out voluntary owninitiative investigations or other activities aimed at detecting, identifying and removing, or disabling of access to, illegal content, or take the necessary measures to comply with the requirements of Union law, including those set out in this Regulation.

Notice-and-take-down procedure

Notice-and-take-down

or

Notice-and-stay-down?

NTD and Fair use

Rebecka Jonsson v. Les Editions de L’Avenir

Attunda District Court, 13 October 2016

YouTube video was embedded on the website of L'Avenir, a Belgian media company.

According to the court, it was “obvious” that L’Avenir had published the link with the intention of pursuing a profit.

Johnson had sent cease-and-desist letters

L’Avenir therefore not able to rebut the presumption

The court also ruled that, by failing to acknowledge the name of author, the defendant had also infringed the claimant’s moral right of attribution

Bangoura

Vs

"Even if the connection is significant, however, the case for assuming jurisdiction is proportional to the degree of damage sustained within the jurisdiction. It is difficult to justify assuming jurisdiction against an out-of-province defendant unless the plaintiff has suffered significant damage within the jurisdiction"

Court of Appeal for Ontario 2005

2007

http://cyberlaw.stanford.edu/our-work/projects/world-intermediary-liability-map-wilmap

Let's go crazy!

I'll sue you!

Stephanie Lenz v. Universal Music Corp. (9th Cir. 2015)

(1)

“the statute requires copyright holders to consider fair use before sending takedown notification.”

(2)

applicability of section 512(f) of the DMCA that allows for the recognition of damages in case of proven bad faith

(3)

which would occur if the copyright holder did not consider fair use or paid “lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary.”

Whether safe harbor applies to Veoh against vicarious and contributory copyright infringement claims

(A)

Storage v. Access

the DMCA must not be interpreted as meaning that hosting provider that provide access to files on top of storage disqualify themselves from safe harbor protection

(C)

Right and Ability to Control

"right and ability to control" infringing activity must logically encompass more than "the mere ability to delete and block access to infringing material" and "substantial influence on the activities of users", such as detailed control over content or active involvement in listings on sites such as eBay can constitute "the right and ability to control" infringing materials

Vs

(B)

Actual & Constructive Knowledge

(1)

the burden of identifying infringing material must fall on the rightholder and not the service provider

(2)

merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one's services could be used to share infringing material, is insufficient to meet the actual knowledge

(3)

hints of infringement, such as tagging of videos with keywords which may imply infringement or news articles discussing illegal copies on Veoh, do not constitute apparent "red flag" knowledge

(9th Cir. 2012)

Fonovisa

Vs

9th Cir. 1996

MGM Studios

Contributory Infringement

Vs

Sony v. Universal (1984)

(2005)

Vicarious Infringement

Tort Law

Case law

Requirements

Who directly contributes to a tort should be held liable along with the tortfeaser himself

• direct infringement
• knowledge (actual or constructive) by the defendant
• material contribution

Agency Law

Requirements

In re Aimster (7th Circ. 2003)

Respondiat Superior: a branch of the law of agency that governs responsibility of employers for misconduct of employees

• direct infringement
• financial interest in the infringement
• right or ability to supervise the direct infringement

AM Records v. Napster

(9th Cir. 2001)

Dart

V.

"brazen" and "massive" copyright infringement

(A)

DMCA safe harbor requires knowledge or awareness of specific infringements

"[we should grow] as aggressively as we can through whatever tactics, however evil [the site is] out of control with copyrighted material [if we remove] the obviously copyright infringing stuff, site traffic [would] drop to maybe 20% […] steal it!"

(B)

Doctrine of willfully blindness can be used to show A

(C)

The “right and ability to control” infringing activity does not require knowledge of specific infringements

2007-2014

(B)

Termination Policy

The implementation of a policy to terminate accounts of users who repeatedly infringe copyright must be reasonable, not perfect

2014

(A)

Red Flag Knowledge

The mere fact that an employee of the service provider has viewed a video posted by a user (absent specific information regarding how much of the video the employee saw or the reason for which it was viewed), and that the video contains all or nearly all of a copyrighted song that is “recognizable,” does not establish 'facts or circumstances' giving rise to 'red flag' knowledge of infringement.

(SDNY, 31 December 2013)

(c) Protection for “Good Samaritan” blocking and screening of offensive material

No Liability, Even Upon Notice

No effect on IP law

(1) Treatment of publisher or speaker

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)

U.S. 107

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, [...] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

No effect on privacy law

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1)

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)

the nature of the copyrighted work;

(3)

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)

the effect of the use upon the potential market for or value of the copyrighted work.

The Congress shall have the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (Article I, Section 8, Clause 8)

(1)

had been informed that their platform provides access to infringing content;

(2)

could not in any case have been unaware that the platform provides access to infringements, given that a very large amount of infringing content was shared using the platform;

(3)

had expressly displayed on blogs and forums on the platform their purpose to make protected works available to the users;

(4)

encouraged users to infringe; and

(5)

operated for profit.

[2016] IECA 231

"Because the defendant is the company which profits - albeit indirectly - because it derives revenue from its subscribers who are engaged in this practice, it is the defendant who should, in my view, be primarily liable for the costs."

80%

(1)

‘essential’ intervention, i.e. such that in the absence of that intervention, the public would not, in principle, be able to enjoy the work or would be able to do so only with difficulty

imposing an obligation to implement a "Graduated Response Strategy" (GRS):

Step 1

R would furnish all relevant infringement

Step 2

AP would send 1st letter requesting to cease and desist.

Step 3

AP would send 2nd letter to its subscriber requesting to cease and desist.

Step 4

AP would send to the plaintiffs a notification that a subscriber account has been the subject matter of three such notifications.

Step 5

R, having been informed of the relevant IP addresses etc, could make a Norwich Pharmacal type application to ascertain the subscriber’s identity and address and the could then seek an order for the suspension and/or termination of the subscriber’s service.

V.

Sony Music

(Ireland)

“That would undermine the objective of EU legislation in the relatively abundant field of copyright, which is precisely to harmonise the scope of the rights enjoyed by authors and other rightholders within the single market. That is why the answer to the problems raised in the present case must, in my view, be sought rather in EU law.”

AG Szpunar

Case C-610/15, Ziggo (14 June 2017)

Not necessary that the link itself be provided “for financial gain”, e.g. through cost-per-click calculations.

It is instead sufficient that the link is provided on a website that is operated for financial gain, i.e. run with the intention to realising profits, irrespective of the commercial impact of the particular link. 

(1) D was offering educational material via his website, therefore intended profit (2) D could not rebut the presumption due to notification

The applicant argued that imposing liability would infringe his fundamental rights. Court said that the CJEU had already struck the right balance.

LG Hamburg, Case no. 310 O 402/16,

18 November 2016 [47]-[48]

Speech

‘I woke up this morning in a bad mood and decided to kick them off the Internet’

GEMA

Vs

The act of making the work available to the public had been committed by the YouTube uploader, not by YouTube itself.

YT also had not ‘adopted’ the content as its own

(‘Zu-Eigen-Machen’, see BGH, marions-kochbuch.de, 12 November 2009, I ZR 166/07).

(1)

YouTube is a “service inclined to infringement”, but also has a business model “in the mainstream of society”

(2)

When YT receives notification of a clear infringement, not only take-down is necessary but also stay-down, incl. other infringements on the same work and other recordings

(3)

Word-based filter and Content ID necessary

Fundamental rights were not relevant

OLG Hamburg, 1 July 2015, 5 U 87/12

Extra-territorial Application of Intermediary Liability Rulings

This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.”

Art. 21(2) - 2. In examining the need for an adaptation of this Directive, the report shall in particular analyse the need for proposals concerning the liability of providers of hyperlinks and location tool services, "notice and take down" procedures and the attribution of liability following the taking down of content.

Privacy & Data

8(3). Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

Graduated Response

Article 11 - Injunctions - Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. [...]

Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.

Administrative Enforcement

Where provided for by national law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance.

The Commission will also continue to engage with platforms in setting up and applying voluntary cooperation mechanisms aimed at depriving those engaging in commercial infringements of intellectual property rights of the revenue streams emanating from their illegal activities, in line with a "follow the money" approach.

a ‘follow-the-money’ approach ‘can deprive those engaging in commercial infringements of the revenue streams (for example from consumer payments and advertising) emanating from their illegal activities, and therefore act as a deterrent’. (pp 10-11)

Self-regulatory approach through the implementation of Code of Conducts

‘the responsibility of online platforms is a key and cross-cutting issue.’ (p. 9)

(37a) [...] The definition of an online content sharing service provider under this Directive shall cover information society service providers one of the main purposes of which is to store and give access to the public or to stream significant amounts of copyright protected content uploaded / made available by its users, and that optimise content, and promote for profit making purposes, including amongst others displaying, tagging, curating, sequencing, the uploaded works or other subject-matter, irrespective of the means used therefor, and therefore act in an active way. As a consequence, they cannot benefit from the liability exemption provided for in Article 14 of Directive 2000/31/EC.

(38) Online content sharing service providers perform an act of communication to the public and therefore are responsible for their content and should therefore conclude fair and appropriate licensing agreements with rightholders. Where licensing agreements are concluded, they should also cover, to the same extent and scope, the liability of users when they are acting in a non-commercial capacity.

‘online content sharing service provider’

means a provider of an information society service one of the main purposes of which is to store and give access to the public to a significant amount of copyright protected works or other protected subject-matter uploaded by its users, which the service optimises and promotes for profit making purposes.

The definition of an online content sharing service provider under this Directive shall cover information society service providers one of the main purposes of which is to store and give access to the public or to stream significant amounts of copyright protected content uploaded / made available by its users, and that optimise content, and promote for profit making purposes, including amongst others displaying, tagging, curating, sequencing, the uploaded works or other subject-matter, irrespective of the means used therefor, and therefore act in an active way.

BUT NOT

Microenterprises and small-sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC and services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all right holders concerned, such as educational or scientific repositories, shall not be considered online content sharing service providers within the meaning of this Directive. Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive

In order to ensure the functioning of any licensing agreement, information society service providers storing and providing access to the public to large amounts of copyright protected works or other subject-matter uploaded by their users should take appropriate and proportionate measures to ensure protection of works or other subject-matter, such as implementing effective technologies. This obligation should also apply when the information society service providers are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC.

BUT NOT

Microenterprises and small-sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC and services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all right holders concerned, such as educational or scientific repositories, shall not be considered online content sharing service providers within the meaning of this Directive. Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive

"Trusted Flaggers"

called to adopt effective voluntary ‘proactive measures to detect and remove illegal content online’ by using automatic detection and filtering technologies (3.3.2)

Art. 13b

Use of protected content by information society services providing automated image referencing

Member States shall ensure that information society service providers that automatically reproduce or refer to significant amounts of copyright-protected visual works and make them available to the public for the purpose of indexing and referencing conclude fair and balanced licensing agreements with any requesting rightholders in order to ensure their fair remuneration. Such remuneration may be managed by the collective management organisation of the rightholders concerned.

"Hosting service providers should take proportionate and specific proactive measures, including by using automated means, in order

(1)

to detect, identify and expeditiously

remove or disable access to terrorist content (36)

(2)

in order to immediately prevent content providers from re-submitting content which has already been removed or to which access has already been disabled because it is considered to be terrorist content (37)"

Filtering

and Monitoring

Obligations

Licensing

"economic impacts are mostly assessed from a qualitative point of view, considering how the different policy options would affect the negotiations between those creating or investing in the creation of content and those distributing such content online. The limited availability of data in this area [. . .] did not allow to elaborate a quantitative analysis of the impacts of the different policy options." (p. 136)

Vs

Cross-border portability of online content services

Pie Theory

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

Non

Retroactive

20 March 2018

Scope

Empirical Evidence

enable their subscribers who are temporarily present in a Member State to access and use the online content service in the same manner as in the Member State of residence

Online services such as

(1) video-on-demand platforms (such as Netflix, HBO Go, Amazon Prime, Mubi, Chili TV);

(2) online TV services (such as Viasat's Viaplay, Sky's Now TV, Voyo)

(3) music streaming services (such as Spotify, Deezer, Google Music) or

(4) game online marketplaces (such as Steam, Origin).

Press Publishers' Neighbouring Rights for Digital Uses

DSM Reform

Enforcement

General Monitoring

Specific Monitoring

Vs

No Proactive Monitoring

Online Search Manipulation

The ECJ decided that European law must be interpreted as precluding a national court from issuing an injunction against a hosting (or access) service provider which requires it to install a system for filtering:

(1) information which is stored on its servers by its service users;

(2) which applies indiscriminately to all of those users;

(3) as a preventative measure;

(4) exclusively at its expense; and

(5) for an unlimited period,

(6) which is capable of identifying electronic files containing musical, cinematographic or audio-visual work in respect of which the applicant for the injunction claims to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright.

CJEU, C-500/19

Vs

"[l]iability rules are more appropriate, since they do not fundamentally change the decentralised nature of the internet by giving trade mark proprietors general – and virtually absolute – control over the use in cyberspace of keywords which correspond to their trade marks. Instead of being able to prevent, through trade mark protection, any possible use – including, as has been observed, many lawful and even desirable uses – trade mark proprietors would have to point to specific instances giving rise to Google’s liability in the context of illegal damage to their trademarks."

Monitoring

&

Filtering

Voluntary Measures

Courts

what “technically possible” and “reasonable.”

(1)

precautions against clearly noticeable infringements—such as blatant counterfeit items—reasonable

(2)

it would be unreasonable a filtering obligation questioning the business model of the intermediary.

(3)

manually checking and visually comparing each product offered in an online auction against infringement—which was not clear or obvious would be unreasonable.

(4)

obligations are unreasonable if due to the substantial amount of products offered, the platform’s business model would be endangered

“Kerntheorie”, i.e. infringements similar in their core (Kern)

trigger a duty to review & notice-and-stay-down

‘consideration must be given to the fact that the defendant participates in the sale of the pirate goods in the form of the commission payable […] Whenever the defendant's attention has been drawn to a clear infringement of rights not only is it obliged to block access to the specific offer […], it must also ensure that such trade mark infringements will as far as possible not occur in the future. […] The defendant is obliged to react to these cases by subjecting offers of Rolex watches to a special examination.’

‘A business that, like the defendant, operates a platform on the internet for third-party auctions cannot reasonably be expected to examine every offer for sale for a possible infringement of rights before publication on the internet. Such an obligation would jeopardise the entire business model.’

Internet Auction I-III

Remedies:

(1)

expeditious removal;

(2)

word filter;

(3)

subsequent manual reassessment for the avoidance of over-blocking;

(4)

general “Marktbeobachtungspflicht”, i.e. market monitoring duty through Google, Facebook or Twitter for illegal links to its service

NTD

R’s business model not a priori designed to facilitate infringement, i.e. deserving of protection,

but

R increased risk of the illegal use of its services, i.e. significantly facilitated copyright infringement.

• R advertised the fact that certain files on its platform had been downloaded 100.000 times
• R’s services could also be used anonymously
• points awarded to users depending on number of downloads

As a result it had lost its neutrality.

Professional but “offensive and vulgar” rather than hate speech

(1)

a duty could only arise once R made aware of a clear infringement through notification.

(2)

Once notification received the provider can not simply rest at deleting existing infringing files, but must go further and perform searches for future infringements of the notified content, as well as take all reasonable measures to make sure users could not proceed with such infringements in the first place, as long as these did not threaten Rapidshare’s business model.

(3)

This could include automatic word filters supplemented by subsequent manual controls.

Non Professional (Blog)

(1)

In a situation of higher than-average

risk of defamation or hate speech,

(2)

if comments from non-registered users are allowed,

(3)

a professionally managed and commercially based

Internet news portal

should exercise the full extent

of control at its disposal and must go beyond automatic keyword-based filtering or ex-post notice-and-take-down procedures to avoid liability

NTD

BGH, 12 July 2012, I ZR 18/11

“[d]defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online.”

Voluntary Measures

Payment Blockades

and

Rethinking Copyright Law: Online Enforcement, Platforms and Algorithms

WIPO LLM, Turin

(Spring 2021)

by Giancarlo Frosio

Knowledge and Take Down

“given that the internet service provider is an inevitable actor in any transmission of an infringement over the internet between one of its customers and a third party, since, in granting access to the network, it makes that transmission possible ( . . . ), it must be held that an internet service provider ( . . . ) is an intermediary whose services are used to infringe a copyright or related right within the meaning of Article 8(3) of Directive 2001/29.”

Private DNS Content Regulation

"[an injunction] constrains its addressee in a manner which restricts the free use of the resources at his disposal because it obliges him to take measures which may represent a significant cost for him.”

Blocking Orders

Articles 11(1)(ii), 11bis(1), 11ter(1)(ii), 14(1) and 14bis(1)

Right of communication to the public

the authors of literary works, artistic works, dramatic and dramatico-musical works, musical works and cinematographic works

communication to the public by wire, communication to the public by wireless means & communication to the public by loudspeaker or analogous instruments, broadcasting, rebroadcasting

Intermediary Liability

Cour de cassation

(09-67.896), 17 February 2011

Sté Nord-Ouest

C.

(1)

the sale of advertising space

(2)

the implementation of technical means ensuring the content’s compatibility with the viewing interface and limiting the size of posted files for reasons of optimisation of the server’s integration capacity

(3)

the provision of presentation frames and of tools for the classification of content, which are necessary for the organisation of the service and in order to facilitate user access to the content

are mere technical operations that are part of the essence of a hosting service do not imply that the provider is involved in the selection of uploaded content.

“Les enfants perdus de Tranquility Bay“, TGI de Paris, 19 October 2007

Notice-and-take-down notice-and-stay-down

Diligences approprieés

the three main obligations incumbent on service providers that it declared derive from the general duty of care

Article L.335-2-1

Anyone who does the following is punished by three years of imprisonment and a fine of 300.000 euros:

(1)

Publishes, makes available to the public or communicates to the public, knowingly and in any form whatsoever, software obviously intended for making available to an unauthorized public protected works or other subject matter;

(2)

Knowingly incites, including through an advertisement, the use of software mentioned under 1.

According to the court, once Google had been informed of the existence of infringing copies of the film, it was under an obligation to implement any means necessary to avoid future dissemination

Lacoste, TGI de Nanterre, 8 December 1999

Delicts and Quasi-Delicts

(1) to bring the need to respect the rights of others to the attention of users (obligation d’information);

(2) to remain vigilant against infringement along a standard of professional care (obligation de vigilance); and

(3) to act against verified infractions by removing the unlawful material and impeding its future re-posting (obligation de réaction).

Article 1382

Every act whatever of man that causes damage to another, obliges him by whose fault it occurred to repair it.

Article 1383

We are responsible not only for the damage occasioned by our own act, but also by our own negligence or imprudence.

Article L.122-4

“Any complete or partial communication to the public or reproduction made without the consent of the author or of his successors in title or assigns is unlawful.”

Primary liability applicable not just to the material acts of infringement, but also to the provision of means for their commission

BUT: No systematic and general examination of all content. Only due diligence checks once the intermediary acquires knowledge of or reason to suspect unlawfulness.

bon père de famille = prestataire diligent et avisé

Cour d’appel de Paris, 14 January 2011

Article 15 ECD irrelevant, as the obligation was specific to the documentary in question and notice as to its copyright status had already been given

“Le génocide arménien”, “L’affaire Clearstream”, “Les dissimulateurs” and “Mondovino”

Cour de cassation, 12 July 2012

(1) The obligation would have forced Google to seek out infringements, as well as implement a blocking mechanism with no limitation in time, which would have disproportionate general monitoring.

(2) Google should have been allowed to benefit from the hosting safe harbour.

(3) Right-holders must themselves monitor the internet and notify intermediaries of each new infringement of protected content

Cour d’appel de Paris

2 December 2014

TF1

C.

Dailymotion did not comply with its obligation to remove promptly the unlawful content upon proper notification – some videos were still available on Dailymotion 7 to 13 days after the notice. Other videos were still on line around 100 days after the notice.

Preventive filtering measure incompatible with a general monitoring obligation

C-494/15

“Nor can the intermediary be required to exercise general and permanent oversight over its customers. By contrast, the intermediary may be forced to take measures which contribute to avoiding new infringements of the same nature by the same market-trader from taking place.”

Broad Notion of Intermediary

Delta Center

Vs

What?

Art. 14 applies to ISPs who do not play an active role that give it knowledge or control over the data stored

but not an active monitoring of all the data of each of its customers in order to prevent any future infringement

The intermediary must be neutral

Adwords

injunctions ex Art 11 Dir. 04/48/EC to take measures that contribute not only to bringing to an end infringements committed through that marketplace, but also to preventing further infringements would be available

ISP can be ordered (injunction) to suspend the perpetrator of the infringement of intellectual property rights in order to prevent (1) further infringements of that kind (2) by the same seller (3) in respect of the same trade marks

(Keyword=Trademark)

the operator has provided assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting those offers, it must be considered not to have taken a neutral position between the customer-seller concerned and potential buyers but to have played an active role

The mere facts that (1) Adwords is subject to payment, (2) Google sets the payment terms, or (3) provides general information to its clients do not deprive from the liability exemption

Trademark

BSkyB

Vs

"the ordinary principle is that unless there are good reasons for a different order an innocent intermediary is entitled to be indemnified by the rights-holder against the costs of complying with a website-blocking order"

Centralization

Taxonomy

"could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. In addition, in some Member States certain works fall within the public domain or may be posted online free of charge by the authors concerned." (Netlog, 50)

monitoring all the electronic communications made through the network, without any limitation in time, directed to all future infringements of existing and yet to create works “would result in a serious infringement of the freedom of the hosting service provider to conduct its business.” (Netlog 46)

Online Intermediaries

Fundamental Rights

ICANN-Registry Agreement (2013) 2.17 Specification 11 (requiring registry operators to include in their contracts with registrars a provision requiring registrars to include in their contracts with registrants “a provision prohibiting Registered Name Holders from […] piracy, trademark or copyright infringement […] and providing [...] consequences for such activities including suspension of the domain name.”

ICANN Registrar Accreditation Agreement (2013) 3.18.

Communication to the Public

What is communication to the public?

Authorization Liability

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works,

(a)

by wire or wireless means,

(b)

including the making available to the public of their works

(c)

in such a way that members of the public may access them from a place and at a time individually chosen by them.

(A)

Recital 27: The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive.’

(B)

Recital 23: ‘This Directive should harmonise further the author's right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.’

Right of communication to the public of works

and

right of making available to the public other subject-matters

Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, (a) by wire or wireless means, (b) in such a way that members of the public may access them from a place and at a time individually chosen by them:

(a)

for performers, of fixations of their performances;

(b)

for phonogram producers, of their phonograms;

(c)

for the producers of the first fixations of films, of the original and copies of their films;

(d)

for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.

Intra-copyright solutions

Why not primary liability?

The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.

When is one person liable for a copyright infringement where the material act of infringement was performed by somebody else?

(i)

(ii)

(aka accessory liability, indirect liability, third party, i.e. cases where the defendant is held liable for the infringement of somebody else)

esp. intermediary liability

‘broadcasting’

‘making available’

History, Theory

and Jurisdiction

Each member of the public at a time and place of their own choosing

for all members of the public simultaneously

‘linear transmissions’ or

‘push services’

‘on-demand’ or

‘pull’ services or

‘non-linear’ transmissions

Secondary Liability

Tort and

Extra-Contractual Liability

Conditions

Svensson v. Retriever Sverige

Deep Linking

Hyperlinking

an ‘act of communication’, as it ‘affords users of the [site with the hyperlink] direct access’ to the works’

SGAE v. Rafael Hoteles, C-306/05

Airfield NV v. SABAM, Joined Cases C-431/09 and C-432/09

Società Consortile Fonografici v. Marco del Corso, C-135/10

Is linking communication to the public?

Strict Liability v. Negligence Standards

(1)

Installation of facilities that allow distribution of a TV or radio signal (not mere provision of physical facilities)

(1)

‘indispensable’ intervention, i.e. such that in the absence of that intervention, the public would not, in principle, be able to enjoy the work

‘[I]n order to assess whether a user is making a communication to the public […] the situation of a specific user and of all the persons to whom he communicates the protected phonograms must be assessed. For the purposes of such an assessment, account must be taken of several complementary criteria, which are not autonomous and are interdependent. Consequently, they must be applied individually and in the light of their interaction with one another, given that in different specific situations, they may be met to varying degrees.’

The 4th Revolution and the Infosphere

(2)

in the case of satellite broadcastings,

when the initial communication to the public is not carried out by the copyright holder,

the “new public” is the “public which was not taken into account by the authors of the protected works within the framework of an authorization given to another person”.

Linking

(1)

The provision of physical or digital phonograms and apparatus on which these may be played

(1)

the defendant must make a ‘intervention’ to give access to or experience of works to a public that is not present at the place where the work or subject matter originate

(2)

cumulative effects are important: must consider not only for how many persons have access to the same work at the same time, but also how many of them have access to it in succession.

GS Media v Sanoma, C-160/15, 8 September 2016

(2)

private nature of hotel room does not preclude cttp

(1)

that is ‘deliberate’ i.e. done in full knowledge of the consequences of the action

(2)

• indeterminate and fairly large number of people
• private dental practice is not a public space

(2)

There is a de minimis threshold  must be a fairly large number of people, not groups of persons which are too small or insignificant

(3)

• profit-making nature (equitable remuneration)
• there was no communication for profit

(1)

Role of the user:

intervention necessary for consumers to enjoy the works

(2)

There must be an indeterminate number of potential users, i.e. not ‘specific individuals belonging to a private group’

(2)

new public

Phonographic Performance (Ireland) v General, C-162/10, 15 March 2012

(7 Mar)

2013

(24 Nov)

2011

(4 Oct)

2011

‘[W]here it is established that [the linker] knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a “communication to the public”’

‘[W]hen the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’

General Principles of Private (Tort) Law

BestWater Int'l v. Michael Mebes and Stefan Potsch, C-348/13, 21 October 2014

ITV v. TV Catch-up, C‑607/11

FAPL v. QC Leisure,C-403/08 and C-429/08

(26 April 2017)

2006

(7 Dec)

Circul Globus Bucuresti v. UCMR - ADA, C-283/10

2012

(15 Mar)

2011

(12 Oct)

Case C-527/15,

(1)

streaming is a cttp: any transmission or retransmission of TV broadcast over the Internet

(1)

intentional transmission

Does a link to materials that the copyright holder DID NOT authorize infringe communication to the public?

May the Member States give wider protection to the exclusive right of authors by enabling ‘communication to the public’ to cover a greater range of acts than provided for in Article 3(2) of the Information Society Directive?

(1)

covering transmission of the broadcast works, via a television screen and speakers

(2)

New public ? even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver.

(1)

Dir. 2001/29 only refers to communication to a public which is not present at the place where the communication originates

(2)

Communication carried out in a place open to the public by public performance or direct presentation of the work is not harmonised.

(2)

to customers present in a public house

(3)

it is not irrelevant that a communication is of profit-making nature

Why 3(2), rather than 3(1)?

(3)

it is irrelevant whether the retrasmission

• is funded by advertizing and is therfore of a profit-making nature or
• is made by an organization which is acting in direct competition with the original broadcaster.

(2)

unless different means of transmission are used

C More Entertainment AB v Linus Sandberg, C-279/13, 26 March 2015

Contributory, Vicarious, and Inducement Liability

Vertical

Horizontal

Conditions

Why were liability exemptions given to intermediaries?

Penalties should be imposed on intermediaries in hopes of suppressing infringing behaviors by users only if:

(1)

otherwise, the incidence of infringement would be unacceptably high, because direct infringers cannot be controlled by socially acceptable sanctions;

(2)

the intermediaries, on their own, would not intervene to curb infringement—and instead, might foster it;

(3)

the intermediaries can effectively suppress infringement with minimal capacity for direct infringers to circumvent them;

(4)

the social and economic cost of penalizing intermediaries are not unacceptably high. *

* This last cost benefit analysis would be especially relevant in the case of so called dual-use technologies—technologies that can be used both to infringe others’ rights and facilitate social beneficial uses

Copyright

Committee on Internet Violations of Intellectual Property (CIVIP)

From Liability to Responsibility

Utilitarian/Welfare

Theories

Liability

Liability Exemptions

Moral Theories

Exemptions

Negligence

Strict Liability

Vs

“a teaspoon solution to an ocean problem.”