#19698 - 10. Copyright And The Internet - Intellectual Property Law

WEEK 10

COPYRIGHT AND THE INTERNET

Balancing Rights – authors (copyright owners) of books, music videos, etc. vs. public interest

• CDs have become MP3 recordings to digital music (spotify, apple music)

Restricted activities by copyright in a work

1. Right to copy work (reproduction right)

2. Issue copies of work to public (redistribution right)

3. Rent or lend work to public

4. Perform, show, or play work in public (performing right)

5. Communicate work to public (via radio, TV)

6. Make adaptation of work

7. Authorise others to carry out any of the above activities.

WILL THERE BE A REDEFINITION OF THE ABOVE RIGHTS ALONG W/TECHNOLOGICAL DEVELOPMENT AND PROGRESS?

Statutes witnessing the changes

1. E-Commerce Directive (Directive 2000/31/EC) – introduced safe harbour provisions for intermediary service providers.

2. Copyright Directive (Directive 2001/29/EC) – this led to the changes in CDPA 1988

3. Digital Economy Act (2010 and 2017)

Finreactor (2008) story – bit-torrent <3

• Users connected to each other directly to send and receive
  portions of the file(s). They could acquire copies of various
  copyrighted works for free

• Investigation started 2004 and first trial was 2006.

• Administrator’s defence – the Finreactor service was not in fact a file sharing service but a database consisting of hyperlinks. Finreactor service was a service provider, as defined by law, and therefore it should enjoy a safe harbour

• The court held

  • The operational principles of the service should be evaluated as a whole – including all the activities of the administrators as an essential part for the operation of the service

  • The administrators had been aware of the infringing uses and had participated in copyright infringements.

Pirate Bay (TPB) case (The Pirate Bay (2008) (Stockholm [District Court of Stockholm] 2009-04-17 Case no. B 13301-06)

• Peer to peer systems (p2p) - computing devices use software to connect with each other over a private network, such as a home local area network (LAN) or a public network, such as the Internet. This direct connection allows each device to share files without requiring the assistance of a remote server

• Re contributory infringement – offering a database that was linked to a catalogue of torrent files pointing to infringing content.

• By enabling the users to search and download the torrent files,
  and by offering a tracker functionality through which the file-sharing users could contact each other. This was making the works available to the public

  • Ziggo BV, Case C-610/15 EU:C:2017:456, [38] - the Court indicated that The Pirate Bay could not claim to have been engaged in ‘mere provision’ because the various acts of indexing and classifying of the torrent files made them readily accessible to users.

• (1) Legal question – can Ds be found guilty of contribution to an offence they are unaware of?

  • D argued they were completely unaware of the 33 works in question. Further, the actual main offenders were unknown.

• Held

  • D must have been aware of the existence of copyright infringing material on The Pirate Bay

  • D had not taken any measures to prevent immediate copyright infringements or remove infringing content, in spite of several requests to do so

  • D does not meet the criteria in order to be afforded the protection of the non-liability provisions

• It is irrelevant that D knew specific works or the specific main offenders. Not necessary to show.

• (2) Legal issue – safe harbour; could Ds escape liability via safe harbour provisions?

  • D argued that The Pirate Bay, as a service provider, should benefit from the protection against liability

  • (i) should The Pirate Bay fall under the definition of ‘service provider’ as described in the e-Commerce Directive?

  • (ii) does the services it provides fall within the scope of the Directive and use for safe harbour provisions?

E-commerce Directive 2000 – introduced into the UK via the Electronic Commerce Regulations 2002

• Article 14(1) - consists of the storage of information provided by a recipient of the service.

  • The service provider (a) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or (b) upon obtaining such knowledge or awareness, acts
    expeditiously to remove or to disable access to the information.

• TPB is a hosting service – users could upload and store torrent files.

Laugh out loud :,)

Further issues arisen by the Pirate Bay case –

1. Whether D’s acts objectively furthered the unlawful acts of communication to the public – easy uploading and downloading facilities, yes!

2. Whether Ds could collectively be deemed to have objectively "furthered" unlawful communication to the public – with common purpose, yes!

3. Whether Ds’ objective and collective act of furthering was committed intentionally – acted with intent, yes!

Result of Pirate Bay – one year imprisonment, 2.7m fine, on appeal: reduced prison sentences, increased fines.

• Effect on p2p services – mixed, some shut down

• The Pirate Bay nevertheless continues – introduction of software that guarantees user anonymity

• It appears: Technology outpaces law

Twentieth Century Fox v Newzbin Ltd [2010] EWHC 608 (Ch)

• Applying the authorisation standard to those who facilitate infringement on the internet

• Absence of license of the relevant copyright holders – uploading of films by third parties. Newzbin employed editors to index these sites and offered a paid service to access the index - By so doing, Newzbin enabled users to download the infringing files from Usenet bulletin boards (uploaded by third parties)

• Many of the Newzbin subcategories were ‘obviously’ infringing materials and the Judge took the view that the defendant knew this

  • Albeit Newzbin had instructed its editors not to index unlawful material and operated a delisting facility, these safeguards were found by the Judge to be cosmetic

• While authorization required a ‘grant’ or ‘purported grant’ of the freedom to do the relevant act, this could be implied from all of the relevant circumstances (Kitchin J). The circumstances might include:

  • The nature of the relationship between the alleged authorizer and the primary infringer;

  • Whether the equipment or other material supplied constitutes the means used to infringe;

  • Whether it is inevitable that it will be used to infringe, the degree of control that the supplier retains; and

  • Whether it has taken any steps to prevent infringement.

• Held - Newzbin 1) provided the means for infringement, 2) that it had been created by the defendant, and 3) that was entirely within the defendant’s control. 4) D had also done nothing to hinder infringement: no filtering and other preventative mechanisms amounted merely to ‘window dressing’

• A reasonable member would deduce from the defendant’s activities that it purports to possess the authority to grant any required permission to copy any film that a member may choose from the Movies category on Newzbin’

TYPICALLY – the software providers who operate p2p systems or the operators of the streaming site are located outside the jurisdiction. Nevertheless, it has become common to seek orders to block user access to such sites.

• Basis of a blocking access order - the operators communicate the subject matter in the United Kingdom, but also often that they ‘authorize’ the infringements (making available or reproduction) of the users (Dramatico Entertainment v. British Sky Broadcasting [2012] EWHC 268 (Ch) [73-81]) (EMI Records v. British Sky Broadcasting [2013] EWHC 379 (Ch), [52]–[70])

Another case: Twentieth Century Fox and Others v British Telecommunications [2011] EWHC 1981 (Ch)

US approach – A&M Records v Napster (2001) 239 F 3d 1004

Summary

1. Service providers are being held liable for contributory and/or vicarious infringement based on the following legal concepts

   1. Inducement – software and statements

   2. Knowledge of infringement

   3. Control over the software, actively not stopping infringement by users

   4. Profit – advertisements

   5. Legal notice – ineffective

   6. Legal uses are not considered.

2. Contributory infringement arose through intentional inducement or encouragement of direct infringement

3. Vicarious infringement arose from profiting from direct infringement whilst not attempting to stop or limit it.

4. Site blocking is used by most of Internet Service Providers (ISP)s, while it’s ineffective to stop online infringement.

STREAMING DEVICES

Problems with streaming services

1. Limited income going to individual composers, lyricists and artists

2. Multiple subscription to different streaming services

Black Widow Streaming lawsuit – the movie was released simultaneously in theatres and via Premier Access on Disney Plus on July 9, allowing subscribers to rent the film for $30

• The suit alleged that putting "Black Widow" on Disney+ reduced Scarlett Johansson's financial stake in the film because her salary would be based on the film's box office haul.

• Terms of the settlement was not disclosed.

Limitations in International Licensing of Copyright

1. Territorial limitations of current copyright rules

2. Bilateral and/or multilateral agreements between collecting societies

3. There haven’t been an effective international copyright licensing system

Attempts to fix –

• International Standard Musical Work Code (ISWC) – developed by the International Confederation of Societies of Authors and Composers (CISAC)

• International Copyright Enterprise (ICE) - a joint venture between the PRS in the UK, the Swedish Performing Rights...