International Copyright Developments
Moderator: Robert Brauneis, George Washington University Law
School
Covering not the world, but focusing on certain important
areas. Also focused on new rights/limitations rather than issues of
jurisdiction and procedure. Tomorrow: event on
Marrakesh Treaty at AU—come!
Panelists:
Jiarui Liu, University of New Hampshire School of Law
Chinese backlash to Chinese copyright law: authors,
musicians, and artists voiced their views in public. Coverage in media was relatively
impartial. Rare treat to see gov’t
agency called controversial and irritating.
In a country with 90% piracy rates, the general public appears to be
sympathetic to authors and approve of their efforts against rent seeking.
In response, the Copyright Office presented three different
drafts. Most controversial: extended
collective license, orphan works, mechanical licenses. ECL pioneered by Nordic countries. Limited to special cases—copying for
research, preservation, etc. Authors may sometimes opt out. First draft of Chinese proposal:
substantially different from Nordic model, not limited to special cases—any collecting
society (China has 5 now) could apply. Existing societies: Musical works, music
videos, literature, photos, and motion pictures—all the commercially
significant types except software; potentially quite expansive. Authors would
only be entitled to royalties if the user/infringer obtained a license from
collecting society; opt out would not increase royalties. Key difference: Chinese collecting societies
are far from representative. Objections:
undermine remuneration, harms both users and authors, might violate Berne’s
three-step test. 90% is not a special
case.
Pressure resulted in dramatic turnaround—collecting society
that was driving force behind first draft pulled its support. Admitted that the society was “too narrow
minded” and short-sighted and insensitive to authors’ needs.
But the ECL system does have its merits. Lowers transaction costs for potential
users. Increases bargaining power of
collecting society. Example: collecting
society approached Google, as only society for Chinese literature. But only represent 10% of Chinese authors—pay
us and there’s still a 90% chance of getting sued. Google rationally walked
away. The less representative a society
is, the more it wants ECL. Many Chinese societies currently offer indemnity to
users, holding users harmless. So Chinese
collecting societies not uncommonly fight with Chinese authors.
ECL is not the only way to increase representativeness—could
improve service/attract more. ECL would undermine incentives to offer better
terms/better services.
Orphan works. Should user have to pay royalty before author
emerges? China sides with
Canada/compulsory license because it creates opportunities for rent-seeking for
collection societies. The US approach
(no royalty before author emerges) makes more sense. Alternative is worst of both worlds: user tax
with no incentive for authors. Well-functioning market benefits entire society.
If all producers get from gov’t, nobody has any need to
negotiate prices or terms—central planning.
Not favored by Chinese public.
Market economy produced growth: lesson is that lower transaction costs
don’t justify abandonment of markets.
Madeleine Lamothe-Samson, Norton Rose Fulbright
Canada: New right of making available. ESA v. SOCAN (2012): is a musical work
communicated to the public by telecommunication when video game w/work in it is
transmitted for download? Answer: No. Likewise for downloads of music, though yes
for streams.
But that was before the law changed to introduce making
available. Is the Supreme Court decision
still relevant? Hot debate in Copyright
Board now. Rightsholders say the
legislator has spoken; for this change to be meaningful there has to be a new
right to comply with our international obligations. Right to get paid separately from the download,
which triggers the reproduction right. (Don’t
they get paid for downloads too?)
Opponents say that it’s a clarification, not a new right. Decision probably before Christmas.
Fair use: two step test—allowable purpose and fair? Before Nov. 2012, there was a list: research,
private study, criticism or review, and news reporting. Purpose of the dealing, character,
alternatives to dealing, nature of the work, and effect of dealing on the
market—similar to US test for fairness, but fixed list of purposes. SOCAN v. Bell Canada: 30-second previews of
muscal works were fair dealing for the purposes of research. Purpose must be the purpose of the end user,
not the purpose of the service provider.
Thus Bell was helping individual consumers w/their own private research
of music of interest. Another case:
Access Copyright, SCt said that student’s purpose allowed institutional copying
by teachers of book excerpts.
Universities have now reacted and there is a big fight going on.
New era for private copying: time and format shifting now
legal without compensation; so is backup copying; so is reproduction for
private purposes—CD to iPod. Exciting
times!
Axel Nordemann, Boehmert & Boehmert
EU: 28 different copyright laws. Not even Benelux, with unified TM law, has
unified © law. One tool for harmonization is EU directives. May not be stricter or looser: copyright
term.
EU doesn’t have a general exemption, like fair use. Rather there’s a conclusive list of
exceptions for certain uses provided by law.
Three-step test on top. Always
difficult to achieve lack of prejudice to rightsholder. (!)
Private copying exemption: member states may but need not exempt it.
Luxembourg and UK do not; but this is due to change soon. Only the copying is exempt, not
distribution/making available. Private
copy must always be made from lawful source.
oyalty on storage media: controversial, and differs substantially
across countries. Mess. Hard drive may be expensive, or free of
tariff. The company trying to make the
most out of this mess is Amazon, whose EU business is organized to
contract/invoice always through Amazon EU in Luxembourg, thus doesn’t pay
tariff. But shipping/return centers are usually centrally located, mainly in
Germany. Refuses to pay royalties for recording devices because Luxembourg has
a zero royalty. But this is no longer
justified. The rule of the member state
in which the end consumer is located is applicable.
Photocopies are also exempted, if related to reproduction on
paper/similar medium. Photographic techniques or processes having similar
effects. Not applicable to sheet
music. Fair compensation must always be
made. Digital copies are not exempted.
Collecting societies sometimes have territorial monopolies—we
thought CJEU might kill this as against free movement of goods/services, but
CJEU allowed member states to give a monopoly, but pricing is subject to checks
on abuse.
Right of citation is also exception/limitation. Citing a work must be in accordance w/fair
practice, and source including name of author must be indicated.
Exhaustion/first sale: we only have regional exhaustion,
first sale in EU. Prevailing opinion was: must relate to material medium, thus
only CDs etc., not to downloads. This has changed since the Usedsoft decision
of CJEU. Now you can sell downloaded
software. Main reason for judgment: economic point of view—sale of computer
program on CD v. by download is similar.
Does that affect digital exhaustion of downloaded music? (Why not yes?)
Shira Perlmutter, United States Patent and Trademark Office
At WIPO/multilaterally.
WIPO internet treaties established new rights, such as making available,
and relied on permissive system for making exceptions w/in the three step
test. After over 15 years of inactivity,
new developments in both rights and exceptions.
Two treaties in 3 years: one with new rights, and one with new exceptions.
Beijing Treaty on audiovisual performances and Marrakesh Treaty for print-disabled
access. We may not be done, because current
agenda involves another possible new rights treaty and several categories of
exceptions.
Beijing Treaty: update rights of performers in AV works to
deal with realities of current technological world. In 1996, AV performers were carved out of
internet treaties mostly because EU and US couldn’t agree. Conflict over transfer provision—in what
circumstances the movie producer could exercise the performer’s exclusive
rights. US WFH doctrine is
controversial, and motion picture industry wanted to keep it in place when
films were exploited in other countries and other countries didn’t want to
agree. Finally, this sticking point was
resolved. Solution: each country’s law
can decide how to deal w/transfer, but that’s made explicit in the treaty. Each country may provide that consent to
fixation means that exclusive rights of authorization shall be owned/exercised
by/transferred to producer, subject to any contract w/the producer. Countries could
provide for equitable remuneration despite transfer rules.
Actors get economic rights as in WPPT, and moral rights, but
agreed statement puts a number of specifics in place. Explicitly permits modifications in normal
course of exploitation, including compression, formatting, and dubbing. Term, formalities, rights management
information/TPMs also covered. Agreed
statement: nothing in the TPM article prevents acontracting party from adopting measures to
ensure the benefit of limitations and exceptions, where TPMs have been applied
and there is legal access to the content, and where appropriate and effective
measures haven’t been taken by rightsholders to enable the beneficiary to take
advantage of the limitations and exceptions. Every word there was carefully
negotiated, among other things to be consistent w/DMCA rulemaking. How does
that affect interpretations of past treaties, which doesn’t have that agreed
statement, or future treaties?
Botswana, Syria, and Slovakia have ratified; EU will take us
over the threshold of 30 countries ratifying.
US is working on ratification and implementation.
(What is the need that this treaty is solving?)
Proposed broadcasters’ treaty. No question that there’s a need to update
from the Rome Convention. (Really?
Because I have that question.) US
proposed a treaty for broadcasters, cablecasters, and webcasters—anyone who
invested in programming and sent it to the public. That wasn’t popular. Copyright owners expressed concerns about
their rights to license. User groups
worried about ability to make private copies.
Signal-based approach instead of content-based approach—what
exactly does that mean? Confusion about meaning has been rife. The work stagnated for a few years. Last
year, US made a new suggestion: time to break impasse. More targeted approach: something we can all
agree on. Fundamental problem of
broadcasters: signal piracy over any medium.
Proposal would have provided a single right to authorize simultaneous or
near-simultaneous transmission of their signal to the public, allowing only for
delays due to technical requirements or to time differences. No protection for subsequent uses of fixations
of the signal. That would be content
protection. Would avoid concern over extra layer of protection requiring
authorization for post-fixation use.
Current status: discussions are continuing. Some progress on clarifying subject matter of
protection. Looking at which rights are
necessary and ways in which past proposals could be narrowed. Public
briefing at PTO coming June 11.
Marrakesh: Debate over whether treaty was necessary, or
whether it could be done voluntarily between publishers and authorized
entities. Int’l copyright has historically been “flexible” rather than
requiring specific obligations for exceptions. Here there was a unique
humanitarian need, for a limited class of users, not the general public. Messy treaty. Countries are free to impose
requirement that exception is only available if copies aren’t available on
reasonable commercial terms. Three-step test continues to apply, repeated
throughout. Needs 20 countries to go
into force. Zero so far, but a lot are
working on it, including US.
On agenda: exceptions for libraries, archives, educational
uses, other disabilities. Text-based
work was our first priority; still an open Q what kind of text is at issue.
Developing countries want treaties, but industrialized countries oppose them.
US: these are important issues and libraries are key to vibrancy of system; we
have exceptions in our law that work
very well, but we need int’l flexibility for countries to tailor to their own
conditions/needs. (RT: You know, like
rights are tailored to countries’ conditions and needs ….) We don’t want a treaty. Objectives and principles should be agreed
on: countries should have an exception allowing libraries to make preservation
copies under appropriate conditions.
There was a big fight over what text-based means. More to come.
Q: how does EU know whom to compensate for copying onto digital media?
Nordemann: not sure. Same problem with radio broadcasting in EU member states. But there the stations will deliver lists/schedules of songs. Nobody can know whether that's similar to private copying.
Lamothe-Samson: Same for Canada. Distributed to different collectives, who have access to radio statistics. (I'm sure that's helpful for determining non-music distribution!)
Q: the idea is that there is a correlation--SCt of Canada accepted try before you buy because of the idea that in fact the use generated sales.
Lamothe-Samson: that's one way of seeing it. (laughter)
Q: in new Canadian mashup exception, how is commercial defined?
Lamothe-Samson: It's not! We are all wondering. If you become a viral hit on Facebook, and you end up starting a business, where does it stop? We don't have any definition or guidelines from cases yet. A lot of undefined new vocabulary in the act--private use, private purposes, noncommercial purposes. Very confusing.
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