Wednesday, 17 April 2019

DSM Directive Series #4: Article 17 obligations ... in a chart

As reported by The IPKat, earlier this week, like the European Parliament, also the Council adopted the latest version of the the Directive on copyright in the Digital Single Market (DSM Directive).

One of the seemingly most complex -if nothing else, due to its length - provisions is what is now Article 17 (formerly, Article 13) of the DSM Directive, on "Use of protected content by online content-sharing service providers".

The final text reads as follows:
1. Member States shall provide that an online content-sharing service provider [as defined in Article 2(6)] performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.
An online content-sharing service provider shall therefore obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC, for instance by concluding a licensing agreement, in order to communicate to the public or make available to the public works or other subject matter.
2. Member States shall provide that, where an online content-sharing service provider obtains an authorisation, for instance by concluding a licensing agreement, that authorisation shall also cover acts carried out by users of the services falling within the scope of Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis or where their activity does not generate significant revenues.
3. When an online content-sharing service provider performs an act of communication to the public or an act of making available to the public under the conditions laid down in this Directive, the limitation of liability established in Article 14(1) of Directive 2000/31/EC shall not apply to the situations covered by this Article.
The first subparagraph of this paragraph shall not affect the possible application of Article 14(1) of Directive 2000/31/EC to those service providers for purposes falling outside the scope of this Directive.
4. If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:
(a) made best efforts to obtain an authorisation, and
(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event
(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from, their websites the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).
5. In determining whether the service provider has complied with its obligations under paragraph 4, and in light of the principle of proportionality, the following elements, among others, shall be taken into account:
(a) the type, the audience and the size of the service and the type of works or other subject matter uploaded by the users of the service; and
(b) the availability of suitable and effective means and their cost for service providers.
6. Member States shall provide that, in respect of new online content-sharing service providers the services of which have been available to the public in the Union for less than three years and which have an annual turnover below EUR 10 million, calculated in accordance with Commission Recommendation 2003/361/EC, the conditions under the liability regime set out in paragraph 4 are limited to compliance with point (a) of paragraph 4 and to acting expeditiously, upon receiving a sufficiently substantiated notice, to disable access to the notified works or other subject matter or to remove those works or other subject matter from their websites .
Where the average number of monthly unique visitors of such service providers exceeds 5 million, calculated on the basis of the previous calendar year, they shall also demonstrate that they have made best efforts to prevent further uploads of the notified works and other subject matter for which the rightholders have provided relevant and necessary information.
7. The cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation.
Member States shall ensure that users in each Member State are able to rely on any of the following existing exceptions or limitations when uploading and making available content generated by users on online content-sharing services:
(a) quotation, criticism, review;
(b) use for the purpose of caricature, parody or pastiche.
8. The application of this Article shall not lead to any general monitoring obligation.
Member States shall provide that online content-sharing service providers provide rightholders, at their request, with adequate information on the functioning of their practices with regard to the cooperation referred to in paragraph 4 and, where licensing agreements are concluded between service providers and rightholders, information on the use of content covered by the agreements.
9. Member States shall provide that online content-sharing service providers put in place an effective and expeditious complaint and redress mechanism that is available to users of their services in the event of disputes over the disabling of access to, or the removal of, works or other subject matter uploaded by them.
Where rightholders request to have access to their specific works or other subject matter disabled or those works or other subject matter removed, they shall duly justify the reasons for their requests. Complaints submitted under the mechanism provided for in the first subparagraph shall be processed without undue delay, and decisions to disable access to or remove uploaded content shall be subject to human review. Member States shall also ensure that out-of-court redress mechanisms are available for the settlement of disputes. Such mechanisms shall enable disputes to be settled impartially and shall not deprive the user of the legal protection afforded by national law, without prejudice to the rights of users to have recourse to efficient judicial remedies. In particular, Member States shall ensure that users have access to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright and related rights.
This Directive shall in no way affect legitimate uses, such as uses under exceptions or limitations provided for in Union law, and shall not lead to any identification of individual users nor to the processing of personal data, except in accordance with Directive 2002/58/EC and Regulation (EU) 2016/679.
Online content-sharing service providers shall inform their users in their terms and conditions that they can use works and other subject matter under exceptions or limitations to copyright and related rights provided for in Union law.
10. As of …[date of entry into force of this Directive] the Commission, in cooperation with the Member States, shall organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders. The Commission shall, in consultation with online content-sharing service providers, rightholders, users' organisations and other relevant stakeholders, and taking into account the results of the stakeholder dialogues, issue guidance on the application of this Article, in particular regarding the cooperation referred to in paragraph 4. When discussing best practices, special account shall be taken, among other things, of the need to balance fundamental rights and of the use of exceptions and limitations. For the purpose of the stakeholder dialogues, users' organisations shall have access to adequate information from online content-sharing service providers on the functioning of their practices with regard to paragraph 4.
As part of both The IPKat DSM Directive Series [see further below for previous episodes] and my collection of study aid materials [available here], I have created a *simplified* (and non-exhaustive) chart of the obligations for online content sharing services providers (OCSSPS) as arising from Article 17 in relation to user-uploaded content (UUC):

The chart can be also downloaded here

Any feedback and comments welcome!

***

The IPKat's DSM Directive Series

[Originally published on The IPKat on 17 April 2019]

Tuesday, 9 April 2019

DSM Directive Series #3: How far does Article 14 go?

DSM-fatigue also for @CultureDoug's Pushka
As IPKat readers know, a few days ago the European Parliament adopted the latest version of the draft Directive on Copyright in the Digital Single Market ('DSM Directive'). In a few days' time, the Council will cast the last vote on it and, after that, it will be published on the EU Official Journal. Individual Member States will then have 24 months to transpose this new piece of EU legislation into their own laws.

The IPKat is now running a DSM Directive Series [previous episodes, here and here], to address a number of points raised by the provisions contained in the directive. 

Today I would like to address a provision, Article 14, that was not present in the original proposal, and was inserted quite late in the legislative process. It relates to "Works of visual art in the public domain":
Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation.
The rationale of this provision is explained in Recital 53:
... In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage. In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of such reproductions give rise to legal uncertainty and affect the cross-border dissemination of works of visual arts in the public domain. Certain reproductions of works of visual arts in the public domain should, therefore, not be protected by copyright or related rights. All of that should not prevent cultural heritage institutions from selling reproductions, such as postcards.
Three questions may arise - inter alia - in relation to Article 14. The first is whether, insofar as copyright is concerned, this provision represents a change in the law or, instead, a mere clarification thereof. The second is whether this provisions provides any broader teachings as regards copyright subsistence. The third is what relationship there is between Article 14 and Article 6 in the Term Directive.

Article 14: a change or a clarification?

This blog has discussed on a number of occasions, eg here, whether the concept of originality as mandated by the Court of Justice of the European Union (CJEU) in Infopaq and its progeny allows Member States to protect - by means of copyright - verbatim reproductions of public domain artworks.

The answer appears to be in the negative: to satisfy the required originality it is necessary that a work be its 'author's own intellectual creation', as resulting from 'free and creative choices' so that the 'personal touch' of the author is visible in the creative result [see here for a recent application in the Netherlands].

In this sense, therefore, Article 14 is a clarification - rather than a change - in the law as it already exists or - rather, as it has been developed by the CJEU. A simple reproduction of a work in the public domain is not sufficient to create a new copyright. 

Hence, copyright notices like those below will - hopefully - disappear:


Broader teachings: a codification of CJEU case law on originality

The provision is also important because it somewhat codifies CJEU case law on originality. In fact , Article 14 relates the standard of originality required for copyright protection to the concept of 'author's own intellectual creation' in relation to 'any material resulting from an act of reproduction' (emphasis added).

So far, there has been a formal harmonization of the standard of originality only for computer programs, databases, and photographs. In its landmark Infopaq decision, the CJEU de facto harmonized this requirement for copyright protection and made the 'author's own intellectual creation' threshold applicable also to works falling within the scope of the InfoSoc Directive.

Article 14 of the DSM Directive - though within the (limited) remit of reproductions of works of visual art - appears to assume that, under EU copyright, protection only arises when a work  - 'a material' - is sufficiently original in the sense clarified by the CJEU.

This is in any case a welcome clarification, especially for those Member States (like the UK) that have traditionally envisaged a lower standard of protection, ie 'sufficient skill, labour or effort', and whose courts have showed a certain resistance towards the embracing the CJEU-mandated concept of originality

Relationship with Term Directive

The Term Directive is a piece of EU legislation that the DSM Directive neither leaves unaffected (see Article 1 and Recital 4), nor does it amend explicitly (see Article 24).

Article 6 of the Term Directive so provides:
Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.
This provision explicitly allows EU Member States to protect both original photographs (by means of copyright) and sub-original photographs (by means of related rights; recently this blog reported on the German Federal Court of Justice's decision concerning protection of digitzed images of works in the public domain: here and here).

With the introduction of Article 14 of the DSM Directive, the question that arises is whether and to what extent the possibility made available by the Term Directive of related rights in sub-original photographs has been affected by this new provision.

It would appear that a related right (if any) recognized by a certain Member State is due to become unavailable insofar as the photograph at issue is of a work of visual art in the public domain, but it might not go beyond that.

So, for instance, the Italian Copyright Act recognizes a 20-year right over simple photographs. With the implementation in Italy of the DSM Directive, something like my dinner:


might continue enjoying protection for the next 20 years (as the photograph is not, arguably, of a work of art), while this:


would be outside the scope of the right (to be noted that, already now, the Galleria degli Uffizi - unlike, eg, the National Portrait Gallery or Musée d'Orsay - does not claim to hold any copyright over the digitized image of this masterpiece by Botticelli).

***
The IPKat's DSM Directive Series

[Originally published on The IPKat on 9 April 2019]

Monday, 1 April 2019

DSM Directive Series #2: Is the press publishers' right waivable?

The IPKat after the introduction 
of the press publishers' right: 
dream and ...
As reported by The IPKat, last week the European Parliament approved the latest version of the Directive on copyright in the Digital Single Market (DSM Directive) which, once approved one last time by EU Member States and published on the Official Journal, will officially come into effect and will then require transposition at the national level.

Still last week, The IPKat launched a 'DSM Directive Series' of posts to comment on certain key aspects of this forthcoming piece of EU legislation. The first post of the series, "Do Member States have to transpose the value gap provision and does the YouTube referral matter?" is available here.

Today, I shall be focusing on a different provision, that is what is now Article 15 of the DSM Directive (formerly, Article 11) and the new press publishers' right envisaged therein.

The wording of this new related right is quite interesting for a number of reasons, including the fact that:
  1. It will be enjoyed by press publishers established in an EU Member State: this means that press publishers established outside the EU would not be eligible for protection under Article 15. The UK withdrawal from the EU would likely mean that - by default - UK-based publishers would not be eligible for Article 15 protection, in a way similar to other situations that the EU Commission itself highlighted in a note sent to stakeholders last year [Katpost here], and that the UK IPO reiterated [Katpost here].
  2. It will be enforceable against information society service providers in relation to online uses, not individual users in relation to private or non-commercial uses of press publications.
  3. It will not encompass linking [but, of course, linking remains an activity that might fall within the scope of copyright protection - so it would be incorrect to think that linking to press content would be always allowed: see here].
  4. It will not encompass use of individual words or very short extracts [again, copyright might be potentially relevant in relation to 'very short extracts', insofar as those extracts are sufficiently original as per Infopaq].
  5. The right will last for 2 years (to be calculated from the date of publication) and will not have retroactive effect.
  6. Authors of works incorporated in a press publication shall be entitled to an 'appropriate share' of the revenues as deriving from licensing online uses of press publications.
However, there is something that is potentially more interesting than the above and is something that the directive fails to tackle.

It is the issue of waivability of the right, ie one of the key issues arisen in respect of national initiatives in, respectively, Germany (sections 87f, 87g and 87h of the German Copyright Act) and Spain (Article 32 of the Spanish Intellectual Property Law).

German and Spanish initiatives

As readers know, the new EU press publishers' right somewhat builds upon earlier national experiences. In the Impact Assessment (IA) accompanying the proposal for a DSM Directive, the EU Commission indeed recalled that a number of Member States had already intervened to remedy or reduce – whether by means of ad hoc initiatives or as part of broader arrangements – the negative impact of reduced revenue in the press publishing sector. Such copyright-related initiatives have included:
  • the introduction of neighbouring rights (as it happened in Germany); 
  • provisions on collective works; 
  • provisions on presumption of transfer; 
  • copyright protection of the typographical arrangement of published editions; and
  • mandatory fair compensation requirements (as is the case in Spain). 
Focusing specifically on the German and Spanish experiences, the IA itself acknowledged that these had been somewhat 'ineffective', and linked such ineffectiveness to 'the lack of scale of national solutions.' (p 161)

One of the actual reasons why the German initiative [currently under scrutiny of the Court of Justice of the European Union, due to lack of notification to the EU Commission; see here for the Opinion of Advocate General Hogan] has not been too successful is also due to the fact that a substantial number of German press publishers have opted to waive their right in order to be indexed by, eg, news aggregation services. In this sense, on the very day that the German right became enforceable, Google News became opt-in (rather than opt-out) in Germany: see IPKat post here.

Things are different in Spain, as the entitlement to compensation does not stem from a new right, but rather from the reformed language of quotation exception within Article 32 of the Ley de Propiedad Intelectual. Despite relying on a mechanism different from the one envisaged under German law, Article 32 as reformed has introduced a right to ‘equitable remuneration’ that, in its substance, is not dissimilar from the German press publishers’ right. There is however a significant difference, ie that – unlike the German right – the Spanish ‘right’ cannot be waived. The result of this is that, for instance, Google News is currently unavailable in Spain [Katpost here].

... reality
The new EU right

Considering its national predecessors, it is quite astonishing intriguing that the DSM Directive does not tackle the issue of waivability of the right in Article 15.

This silence raises a number of issues, two of which in particular stand out. 

The first is whether beneficiaries of the right will be able to waive it, lacking a specific prohibition to the contrary. The answer appears to be in the affirmative.

The second, and possibly currently more pressing, is what effect all this will have on transposition debates. It appears likely that different Member States might opt for different ways to implement the directive into their own laws, and that lobbying at the national level might lead to diverging languages of the new press publishers' right. The result might be that the right ends up being waivable in certain countries but not others (eg because national law explicitly excluding waivability). 

The CJEU has explicitly excluded the possibility for EU Member States to alter the scope of harmonized rights: it did so, eg, in relation to Article 3 of the InfoSoc Directive, in both Svensson and C More. However, while this is the truth and the CJEU was correct in its assessment, it is not excluded that in fact certain Member States would include language as regards the waivability of the right or - more likely - lack thereof. 

Litigation will then likely ensue in a few years' time, the CJEU might be given the possibility to assess the appropriateness of resulting national transpositions, deem them compatible or incompatible with EU law, concerned Member States will need to change their own laws, etc. 

In all this, unfortunately, one thing seems at least clear: The IPKat will not start making any money. Blogs are in fact expressly ineligible for Article 15 protection (see Recital 56). This means that, if nothing else, it will not need to worry about de-indexing from search engines or news aggregation services ...


***
[Originally published on The IPKat on 1 April 2019]