unlucky for some: will 2013 break the internet?

© 2013 Edwards Wildman Palmer LLP & Edwards Wildman Palmer UK LLP

INTERAction IP Law Update

Unlucky for some: Will 2013 Break the Internet?Gareth DicksonAssociate, London

31 January 2013

Introduction

♦ What makes an efficient Internet?

♦ Technological change vs. legal change

♦ Key legal provisions

♦ What is the likely practical impact of adverse rulings?

♦ Proposals for reform in 2013

♦ Conclusions

What makes an efficient Internet?

♦ Convenience and predictability:

♦ Search results

♦ Links

♦ Worldwide accessibility

♦ Lossless reproduction

Technological change vs. legal change

Legal change Technological changeDesign within the box There is no boxLess competitive pressure Speed / competitive advantageCentralised DecentralisedAccountability Limited accountabilityObligation to do it For the thrill of doing itTo make life better To make life better

Key legal provisions

♦ Section 16 Copyright, Designs and Patents Act 1988 provides for various exclusive rights in respect of original literary works:

♦ to copy the work;♦ to issue copies of the work to the public;♦ to rent or lend the work to the public;♦ to perform, show or play the work in public;♦ to communicate the work to the public;♦ to make an adaptation of the work or do any of the above in

relation to an adaptation.

Search results (1)

♦ Results in response to a user’s request:♦ Headlines and titles♦ Snippets♦ Links to original work

♦ Leading CJEU case is Case C-5/08 Infopaq (2009)♦ Broad protection; strict interpretation of any derogations♦ “Original” means author’s own intellectual creation♦ Parts of a work which “contain elements which are the

expression of the intellectual creation of the author of the work” are also protected

♦ Reproduction right cannot be subject to acts “dependent on human intervention” – national court to decide

Search results (2)

♦ NLA v. Meltwater (High Court 2010; Court of Appeal 2011)

♦ News alerts services:♦ reproduce protected works and parts of works;♦ involve the issue of copies to the public.

♦ Prima facie, viewing a webpage and receiving an email are infringing unless consent or a defence applies

♦ Judges rejected all applicable defences, including temporary copies exception found in s.28A CDPA

Search results (3)

Section 28A CDPA 1988

♦ Copyright in a literary work, other than a computer program or a database …is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable—

(a) a transmission of the work in a network between third parties by an intermediary; or

(b) a lawful use of the work;

and which has no independent economic significance.

Search results (4)

♦ Infopaq (2009) held copies enabling caching are “by definition, created and deleted automatically and without human intervention”, and are excepted

♦ Meltwater (2010 and 2011) held caching on personal computers is a consumption of the work, and therefore not excepted

BUT:

♦ Case C-128/11 UsedSoft v. Oracle (2012) creates a brand new reproduction right that is entirely dependent on human intervention

♦ Meltwater (Supreme Court 2013) appeals this issue alone

Links (1)

♦ Permalinks vs. vanity URLs – a link could be infringing in and of itself, following Infopaq and Meltwater, but will be rare.

♦ Newspaper Licensing Ireland: “a licence is required to link directly to an online article even without uploading any of the content directly onto your own website”

♦ National Newspapers of Ireland: “our view of existing legislation is that the display and transmission of links does constitute an infringement of copyright”

♦ Haven’t we seen this before?

Links (2)

♦ Case C-466/12 Svensson:

♦ Are links a communication to the public of the target work?♦ Does it make a difference whether the target page is framed?♦ Can Member States broaden a rightsholders’ exclusive right to

communicate protected works to the public?

Worldwide accessibility (1)

♦ Will there be a need to restrict the display of content to the jurisdiction from which it is submitted?

♦ Personality / privacy rights:♦ Cases C-509/09 and Case C-161/10 eDate (2011): Where

content provider is established; where claimant has centre of interests; or where content is accessible

♦ Trade marks:♦ Case C-523/10 Wintersteiger (2012): Where the mark is

protected or where the advertiser is established


♦ Copyright / database (communication to the public):

♦ Case C-5/11 Titus Alexander Jochen Donner (2012):♦ “Making available to the public” is “characterised by a series

of acts” from, at least, conclusion of a contract of sale to the performance thereof by delivery to a member of the public

♦ Distribution may take place, and therefore be actionable, in a number of Member States

♦ Case C-173/11 Sportradar (2012): A “making available” occurs at least where the recipient of data is located, provided that he has been targeted


♦ Cases to watch this year:

♦ Case C-466/12 Svensson: are links communications to the public of the target work?

♦ Case C-607/11 ITV Broadcasting v TV Catch Up: are Internet streams of broadcast TV communications to the public?

♦ WNET v. Aereo (Cases 12-12786-cv and 12-2807-cv) and Fox Television v. Aereokiller (Cases CV-12-6921 and CV-12-6950): US cases similar to TV Catch Up, but at a more advanced stage of litigation

Lossless reproduction

♦ Lossless copying:♦ is critical to social media♦ enables the rapid, reliable exchanges of content and ideas♦ makes endless format shifting (and piracy) viable

♦ Do rightsholders need a quid pro quo for ISPs’ safe harbours?

♦ Secondary markets for digital media?♦ UsedSoft – permits the resale of downloaded computer

programs in certain circumstances; endorses DRM but makes anti-piracy campaigns more difficult

♦ ReDigi – launch in Europe anticipates that the resale of other downloaded materials is permitted, absent contractual terms

What are the likely practical impacts of adverse rulings?

♦ Vast majority of private Internet users will abide by the rule of law most of the time. However:♦ Social media♦ Private copying♦ Format shifting♦ DRM-circumvention

♦ What about commercial users?♦ NLI and NNI♦ The situation in Belgium♦ Discernable change since Infopaq and Meltwater?

Are we focused on the right question?

Will 2013 break the Internet?

Proposals for legislative reform in 2013

♦ Gowers Review of Intellectual Property, 2006

♦ DIGITAL OPPORTUNITY A Review of Intellectual Property and Growth (Hargreaves Review, 2011)

♦ Government proposals (2012-2013)♦ Private copying♦ Parody, caricature and pastiche♦ Data analytics♦ Freedom to contract?

Conclusions

♦ Trends in recent jurisprudence

♦ What would be the likely practical impact of adverse rulings?♦ Search♦ Links♦ Worldwide accessibility♦ Lossless reproduction

♦ Proposals for reform in 2013

♦ The next 11 months will not break the Internet, but they might amend copyright for the sake of consistency

Unlucky for some: Will 2013 break the Internet?

Thank YouGareth Dickson

England and Wales, New York

[email protected]

+44 (0)207 556 4470

© 2013 Edwards Wildman Palmer LLP & Edwards Wildman Palmer UK LLP

INTERAction IP Law Update

Unlucky for some: Will 2013 Break the Internet?Gareth DicksonAssociate, London

31 January 2013