Fordham: last one! ECJ and copyright

CJEU: A Review & Critique of Its Case Law

Moderator: Trevor Cook, Bird & Bird LLP, London

Prof. Lionel Bently, University of Cambridge, Harmonization by Stealth

A series of partially harmonizing directives agreed on politically.  ECJ has started to fill in the gaps the legislature didn’t.  Originality; the work; ownership; designs.

Infopaq: a general originality standard exists for all works; directive spoke only of databases, computer programs, and photos, but the ECJ extrapolated from that to determine that a defendant’s use counted as a part of a work. You had to know what the work was to figure that out, and therefore had to evaluate originality.  ECJ went on to find that there was also harmonization of the concept of the work.  A football match isn’t a work because it’s not an intellectual creation, and so on.

Designs: directive says: if a design right is registered in a member state, it should be protected by copyright; but originality should be determined by member states.  ECJ says: extent of protection doesn’t cover term, so it’s required to do life plus 70 for registered designs. Even unregistered designs: members must protect them as original works if they comply with the Information Society Directive’s requirements. That means distribution, reproduction, communication to the public; exceptions to the design right must meet the exceptions tests.

ECJ evaluated Austrian provision requiring copyright to be held by employer in the case of a producer of a film; ECJ said that was incompatible with European law.  Rebuttable presumption of transfer was ok but not an irrebuttable presumption.  The alternative result would be appropriation of author’s rights.

This is going much beyond what we thought we had.  Should we welcome this development?  It avoids political difficulties that prevent legislative harmonization.  Also, the outcomes are pretty much unobjectionable and therefore easy to accept as legitimate.  Criticisms: process legitimacy.  As between the EU and member states, these were areas thought to have been left to member states.  Rules are inconsistent with national legislation.  Creates transitional uncertainty: ownership of crown copyright, ownership of registered designs, moral rights of employees (generally taken away by UK legislation).  If unoriginal works can’t be protected by copyright, can they be protected by unfair competition law?  The UK has a closed list of works—does it have to include any “intellectual creation”?  Etc.

Hon. Mr. Justice Peter Charleton, Justice, High Court of Ireland, Dublin, Copyright as One of Several Competing Rights in European Law

Legal certainty is one of the foundations of European law, in the same way we want instructions given to police to be certain so we all know where we stand. Economic entities, when they know the law is clear and precise, can plan accordingly.  But that principle of certainty is now missing.

Three main internet defenses: mere conduit; caching only; Directive forbids monitoring.  Some people take the position—e.g., special rapporteur of UN General Assembly Human Rights Council—that you can’t disconnect someone from the internet. Justice Arnold: economic effect of piracy is big.  European Convention on Human Rights—right to privacy unless interference is necessary; right to free expression unless essential for a democratic society/national security/public safety/territorial integrity.  Directive: where you are going to remove rights, including here the right to communicate under internet, only imposed if they’re appropriate and necessary, with due process.  ISPs have rights to run a business; people have rights to privacy in data.  Right to fair balance between IP rights and freedom to do business/receive data.  Not clear what the balance will be.

Clear dichotomy between the European approach to damages and the US approach.  MPAA says the copyright owner can’t determine how many people downloaded a work and so damages should be huge.  $80,000 against Jamie Thomas-Rassett.  Arista v. Limewire: more money claimed in damages than the entire industry had made since the invention of the phonograph.  Reality of European law: once you get into the realm of penalizing people in civil remedies, other due process rights will arise.  Must titrate the remedy carefully. 

Christopher M. Stothers, Arnold & Porter LLP, London, Free Movement and Copyright: A Review of the Decoder Cases

Football association filmed football matches; licensed broadcast rights territorially; games encoded and then sent by satellite.  Contractual limitations: decoder cards only sold on country by country basis. Cards were cheaper in some countries than others, much cheaper in Greece than UK.  Inevitable arbitrage. 

Questions: Were the territorial restrictions compatible with EU law? Does showing a match in a pub constitute a communication to the public of the underlying work?

Territorial restrictions on the use of IP to restrict free movement of goods have been prohibited for a long time. However, the position seemed to be different for services.  ECJ found territorial restrictions breached rules on free movement. Very broad approach to freedom to provide.

More surprising: Communication originated at the football ground, not the pub, and pub patrons were new public.  English court on remand applied that rule but found a UK-based exception for broadcast films. UK law thus incompatible with EU law. 

Other cases: films to hotel rooms: yes, communication to public. Playing the radio during dental surgery, no.  Pending case: simulcasting in the UK.

Conclusions: rulings on territorial restrictions were unsurprising and necessary for a single market; consumer-focused construction of freedom to provide services.

Communication to the public more surprising, limits impact of territorial ruling to individual consumers because anyone using the tech for commercial purposes is likely communicating to the public.

Dr. Silke von Lewinski, Max Planck Institute for Intellectual Property and Competition Law, Munich

Examples of where there might be leeway for member states, but not spelled out: who counts as a performer for neighboring rights?  Perhaps member states should have harmonized, but they didn’t want to. Perhaps they now need to tell the ECJ not to harmonize specific terms.

Ted Shapiro, Senior Vice President, General Counsel and Deputy Managing Director, EMEA, Motion Picture Association, Brussels

Right or wrong, the football decision is striking since it wasn’t formally addressed by the law.  Is territoriality finished?  He doesn’t agree with many aspects of these judgments, but they have answered a bunch of questions.  Fundamental right to run a business based on other people’s stuff.  An ISP can’t be directed to end piracy in our time (he seems to be sad the case was framed that way).  Would the result be the same if it had been the Pirate Bay? He thinks filtering would have been ordered.  Lower court in Brussels ordered filtering or blocking; can get blocking awarded in most national courts, after balancing of rights.

Rt. Hon. Professor Sir Robin Jacob, Faculty of Laws, University College London, London

Now we know that security camera footage doesn’t have a copyright; ridiculous that it should have had one in the first place.  ECJ is a bad referee; it’s about to start telling us how far design law should go.  We all know the difficulties of the copyright/design interface, but they don’t understand.