eu harmonisation - economic rights prof. tanya aplin king’s college london [email protected]
TRANSCRIPT
International - ERs
• Reproduction – Of works ‘in any manner or form’ - Art 9 Berne
– Copies of a fixation (limited for performers) - Art 1(e) Rome
– General reproduction right for performances fixed in phonograms and phonogram producers - WPPT Arts 7, 11
– Reproduction of fixations of broadcasts - TRIPs Art 14(3), WIPO Broadcasting Treaty
International - ERs
• Adaptation– General adaptation right - Art 12 Berne
– Right of translation - Art 8 Berne
– Cinematographic adaptations - Art 14 Berne
International - ERs
• Distribution– General distribution right (of copies in tangible form) -
WCT, Art 6
– Rental right for computer programs, sound recordings; cinematographic works; works embodied in sound recordings; performances fixed in phonograms
– See Art 11, 14 TRIPS; Art 7 WCT; Art 9 WPPT
International - ERs
• Communication to the Public – Public performance - Art 11, 11ter Berne
– Broadcasting - Art 11bis Berne, Arts 7, 12, 13 Rome - See also WPPT
– On demand making available to public - Art 8 WCT; Art 10, 14 WPPT (performers and phonogram producers)
EU harmonisation• Significant EU harmonisation in area of copyright &
related rights• Three types of directives:
– Dealing with specific subject matter - Computer Programs Directive 91/250/EEC (codified in 2009/24/EC) and Database Directive 96/9/EC
– Dealing with specific rights - Rental Right Directive 92/100/EEC (codified in 2006/115/EC); Cable and Satellite Directive Directive 93/83/EEC; Term Directive Directive 93/98/EEC (codified in Directive 2006/116/EC); Droite de Suite Directive Directive 2001/84/EC
– Dealing with more general harmonisation - Information Society Directive 2001/29/EC
EU harmonisation
• Economic rights harmonised by:– Rental Right Directive– Satellite & Cable Directive– Software Directive– Database Directive– Information Society Directive
Rental Right Dir.• Right Directive 92/100/EEC codified in Directive
2006/115/EC in the interests of clarity & rationality• “Adequate protection of copyright works and subject
matter…of fundamental importance for the economic and cultural development of the Community” (rec. 3)
• “Copyright and related rights protection must adapt to new economic developments such as new forms of exploitation” (rec. 4)
• “possibility of securing [adequate] income and recouping that investment can be effectively guaranteed only through adequate legal protection of rightholders” (rec. 5)
Rental Right Dir.• Member States shall provide a right to authorise or
prohibit the rental and lending of originals and copies of copyright works & other subject matter– Authors of works– Performer - fixations of performance– Phonogram producer - phonogram– Producer of the first fixation of a film - original and copies of film– Doesn’t apply to buildings and works of applied art– Without prejudice to Art 4© Software Directive
• See Art 1 and Art 3(1)
Rental Right Dir.• Rental = making available for use, for a limited period of
time and for direct/indirect economic or commercial advantage
• Lending = making available for use, for a limited period of time and not for direct/indirect economic or commercial advantage, when it is made through establishments which are accessible to the public– Payment can cover operating costs– Lending between establishments accessible to the public not
caught
• See Art 2 and also recitals 10, 11
Rental Right Dir.• Presumed transfer of performer’s rental right to film
producer where there is a film production contract and no clause to the contrary - Art 3(4)
• Member states may provide for a similar presumption with respect to authors
• Authors and performers retain right of equitable remuneration - Art 5(1)
• Such a right cannot be waived - Art 5(2)• Right entrusted to collecting societies - Art 5(3)
Rental Right Dir.• “Member States may derogate from the exclusive right
provided for in Art 1 in respect of public lending, provided that at least authors obtain remuneration for such lending. Member States shall be free to determine this remuneration taking account of their cultural promotion objectives” (Art 6(1)
Rental Right Dir.• NB rental and lending rights shall not be
exhausted by any sale or other act of distribution of originals and copies of works and other subject matter
• Metronome Music GmbH v Music Point Hokamp (1998) - rental right not exhausted by sale of recording
• Laserdisken (1998) - rental in one Member States does not exhaust the right in another member state
C-271/10 VEWA v Belgische Staat • CJEU (Third Chamber) 30 June 2011• Concerned interpretation of ‘remuneration’ paid to
rightsholders in respect of public lending, as per Art 5(1) Directive 92/100 (now Art 6(1) Directive 2006/115) - did a flat rate based on number of borrowers comply?
• Held: NO• ‘fair compensation’ in Art 5(2)(b) Directive
2001/29 - means to compensate authors adequately - see Padawan C-467/08
C-271/10 VEWA v Belgische Staat • The concept of ‘remuneration’ is also designed to
recompense authors - note that it will be less than equitable remuneration because this qualifier is not used and public lending does not have direct or indirect economic/commercial character
• Assessment should, however, take account of the number of works made available to the public not just the number of borrowers registered with that establishment
Rental Right Dir.• Fixation right - Art 7• For performers - excusive right to authorise or prohibit
fixation of their performances• For broadcasters - right to authorise or prohibit fixation of
their broadcasts, whether wire or wireless– But not where a cable retransmission
Rental Right Dir.• Broadcasting and communication to the public - Art 8• For performers - excusive right to authorise or prohibit
broadcasting by wireless means and communication of their performance [except where performance is already a broadcast performance or is made from a fixation]
• For broadcasters - right to authorise or prohibit rebroadcasting of their broadcasts by wireless means as well as communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee
Rental Right Dir.• Broadcasting and communication to the public - Art 8• Phonogram published for commercial purposes or a
reproduction of such phonogram is used for broadcasting by wireless means or any communication to the public, Member States shall provide a right to equitable remuneration shared between performers and phonogram producers
Rental Right Dir.• Distribution right - Art 9• Performers - fixations of their performances• Phonogram producers - phonograms• Producers of first fixations of their films• Broadcasters - fixations of their broadcasts
• Right shall not be exhausted within the Community except where the first sale in the Community of that object is made by the rightholder or with his consent
Satellite & Cable Dir.
• Deals with crossborder satellite broadcasting and cable retransmission of programmes from other Member States
• Disparities in national rules problematic to internal market; also need to resolve uncertainty – Eg recitals 5-8
Satellite & Cable Dir.• Member states shall provide for an exclusive right
to authorise the communication to the public by satellite - Art 2
• Authorisation may be acquired only by agreement - Art 3(1) – take into account all aspects of broadcast incl. actual and
potential audience and language version - rec 17
• Extended to performers, phonogram producers and broadcasting organisations - Art 4 - broadcasting by wireless means includes communication to the public by satellite
Satellite & Cable Dir.• “satellite’ means “any satellite operating on frequency
bands which, under telecommunications law, are reserved for the broadcast of signals for reception by the public or which are reserved for closed, point-to-point communication.” Art 1(1)
• “communication to the public by satellite” means “the act of introducing, under the control and responsibility of the broadcasting organisation, the programme carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down to towards the earth” (Art 1(2)(a))
Satellite & Cable Dir.• “the act of communication to the public by satellite occurs
solely in the Member State where, under the control and responsibility of the broadcasting organisation, the programme carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth” (Art 1(2)(a))
• [ie emission theory]
• To avoid cumulative application of several national laws to one single act of broadcasting - rec 14
Satellite & Cable Dir.• Where act of CTP by satellite occurs in a non-Community
state which does not provide this exclusive right then:
• If programme carrying signals are transmitted to the satellite from an uplink station situated in a Member State, act deemed to have occurred in that Member States
• If no use of uplink station situation in a Member State but a broadcasting organisation established in a Member State has commissioned the act, will be deemed to have occurred in the Member State in which organisation has its principal establishment– Art 1(2)(d)
Satellite & Cable Dir.• Art 8 grants an exclusive right to owners and related rights
holders to authorize cable retransmission of broadcasts emanating from another member state
• Exercised by individual or collective agreements via a collecting society - Art 9– Compromise - rather than include a compulsory or statutory
licence this provision facilitates the task of cable operators to acquire the retransmission right
– Member States must introduce a mediation system to facilitate agreement - see Art 11
– Member States shall ensure that the parties enter and conduct negotiations regarding authorisation in good faith and do not hinder negotiation without valid justification
Information Society Dir.
• Substantial harmonisation - why?• “A harmonised legal framework on copyright and
related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation…and lead in turn to growth and increased competitiveness in European industry” rec. 4
Information Society Dir.
• “Technological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of IP are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation” rec. 5
Information Society Dir.• “Without harmonisation at Community level,
legislative activities at national level which have already been initiated in a number of Member States in order to respond to the technological challenges might result in significant differences in protection and thereby in restrictions on the free movement of services and products…leading to refragmentation of internal market and legislative inconsistency” rec. 6
• Smooth functioning of the internal market - rec 7
Information Society Dir.• “Any harmonisation of copyright and related rights must
take as a basis a high level of protection such such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large.” rec. 9
• Authors and performers must receive an appropriate reward, as must producers in order to finance the production of works - rec 10
• To implement new international obligations in WCT and WPPT - rec 15
Information Society Dir.• Harmonises reproduction, distribution and communication
to the public
• Therefore NOT adaptation nor public performance
Information Society Dir.• Reproduction right - Art 2• “Member States shall provide for the exclusive right to
authorise or prohibit direct or indirect, temporary or permanent reproduction by any means or in any form, in whole or in part”
• Applies to authors, performers (in fixations of their performances); phonogram producers, producers of first fixations of films; broadcasters (fixations of their broadcasts)
• Broader than is required under WCT• Criticised by scholars as a technical rather than normative
approach
Information Society Dir.• Reproduction right - Art 2• What about transient copying inherent in communication
via digital networks? See Art 5(1)• But what about linking?• And search engines? E.g. image searches• Overlap with communication to the public esp. in relation
to online dissemination of content?– Eg podcasting, webcasting - both mechanical and performance rights societies may
claim rights– Effect on rights clearance– Should we look at the purpose of a reproduction to determine whether there is an
independent act of exploitation or whether the sole purpose is allowing CTP for which a licence has been obtained?
Infopaq• Infopaq v DDF [2009] E.C.D.R. 16 (ECJ, 4th Chamber)• Scanning of newspaper articles and search of digital files to produce
search reports• Reports contained 11 word extracts from the articles (sometimes
multiple extracts)• Was there a ‘reproduction in part’ within Art.2 InfoSoc Dir.?
– “the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part” - Art 2
• Were the temporary acts of reproduction exempt by Art. 5(1)?
Infopaq• Relying on the Berne Convention, and the
Computer Programs, Database and Term Directives, the ECJ held that the InfoSoc Directive applied to works which were original in the sense of ‘author’s own intellectual creation’
• The reproduction right should be construed broadly (given rec.21 and the language of Art.2)
Infopaq• Held: “the reproduction of an extract of a
protected work which…comprises 11 consecutive words thereof, is such as to constitute reproduction in part within the meaning of Art. 2…if that extract contains an element of the work which, as such, expresses the author’s own intellectual creation; it is for the national court to make this determination” [48]
Infopaq• Comments:• Indirect harmonisation of originality• Links of originality with infringement (at least for
reproduction)• Requires a different approach in Member States such as
the UK - see Newspaper Licensing Agency v Meltwater [2011] EWCA Civ 890
C-403/08 & 429/08 FAPL v QC Leisure
• CJEU (Grand Chamber) 4 Oct 2011
• Licences granted exclusively to broadcast Premier League football matches in each Member state for 3 year periods; broadcasts are encrypted to protect this territorial exclusivity
• foreign decoder cards imported into the UK from other member states which permit broadcasts from those member states to be viewed in the UK
C-403/08 & 429/08 FAPL v QC Leisure
• Alleged, inter alia, that the defs have infringed by making copies of the works in the internal operation of the satellite decoder & in displaying works on screen, by performing or showing works in public and by communicating the works to the public
• What were the works?– Copyright in film (e.g. opening sequence film, previous highlights film)– Artistic works - graphics, devices and logos– Sound recording of the Premier League Anthem– Anthem as a musical work
C-403/08 & 429/08 FAPL v QC Leisure
• Reproduction right - Art 2(a) Directive 2001/29• Reproduction - must be given autonomous & uniform
interpretation in EU• Various parts of the work enjoy protection if they contain
elements which are the expression of the author’s intellectual creation
• Therefore, ask whether transient sequential fragments stored in decoder memory or tv screen reproduce elements of author’s intellectual creation?
Information Society Dir.• Distribution right - Art 4• “Member states shall provide for authors, in
respect of the original of their works or of copies the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise”
Information Society Dir.
Art 4(2) “the distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent”
Information Society Dir.• Peek & Cloppenburg v Cassina C456/06 17 April 2008 • Cassina - Manufacturer of Le Corbusier furniture claimed
that use of actual chairs in a shop - for customers to sit on and as part of a window display - required authorisation because distribution
• CJEU held dismissed such a wide interpretation of distribution; looking to the WCT for clarification it concluded that ‘distribution through sale or other transfer of ownership” covers ‘acts which entail a transfer of the ownership of that object”
• Does not cover on-line dissemination
Information Society Dir.• Laserdisken v Kulturministeriet [2006] ECDR 30• Following question referred to the ECJ:• “Does Art 4(2) of Information Society Directive
preclude a Member State from retaining international exhaustion in its legislation?”
• ECJ ruled that Art 4(2) of ISD did not leave it open to Member States to introduce a rule of international exhaustion
Information Society Dir.• Communication to the public - Art 3• “Member States shall provide authors with the
exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”
Information Society Dir.• For performers, phonogram producers, film
producers and broadcasters - narrower right of “making available to the public, by wire or wireless means, in such a way that members of the public may access the from a place and at a time individually chosen by them” Art 3(2)
• Rights not exhausted by any act of communication to the public or making available to the public
Information Society Dir.• What is ‘public’? Undefined• SGAE v Rafael Hoteles C 306/05• Question was whether relaying TV broadcasts received by
hotel aerial by cable to hotel rooms constitutes communication to the public in Art 3 ISD
• CJEU held: “the private nature of hotel rooms does not preclude[the activity] from constituting communication to the public within [Art 3(1)]” Since the communication rights must be “interpreted broadly” it included the right to authorize “the distribution of a signal by means of television sets by a hotel to customers staying in its rooms”
C-403/08 & 429/08 FAPL v QC Leisure
• Communication to the public - Art 3(1)• Art 3(1) should be interpreted broadly; should be
interpreted consistently with international law (including Berne Convention Art 11bis(1)(iii) & TRIPs)
• Interpreted to cover transmission of broadcast works, via tv screens and speakers, to customers present in a public house; must to be a transmission to a new public
• Provision does not cover ‘direct representation or performance’ - ie Art 11(1) Berne
C-403/08 & 429/08 FAPL v QC Leisure
• Justification on restriction on freedom to provide services based on protecting IPRs
• No copyright in PL matches - not intellectual creations classifiable as works; possible for MS to protect sporting events
• Protecting specific subject matter of IP does not guarantee rightholder to demand the highest possible remuneration - note that here the rightholders are remunerated for broadcasting within the MS; they can calculate this on the basis of actual and potential audience
• Coditel I distinguishable because communication to the public occurred without the cable television companies having, in the MS of the place of origin of that communication, an authorisation from rightholders and without having paid remuneration to them
FAPL v QC Leisure (High Ct)
• [2012] EWHC 108 (Ch) (Kitchin LJ)
• Whether any of the defs have communicated copyright works of FAPL to the public pursuant to s. 20 and, if so, whether s. 72 CDPA provides a defence ?
FAPL v QC Leisure (High Ct)
• Noted CJEU ruling that proprietor of a public house does effect a communication to the public within Art 3 Dir. 2001/29 when he intentionally transmits broadcast works, via a tv and speakers, to customers present at the establishment
• S. 20 CDPA an effective transposition of Art 3 Directive - states CTP via electronic transmission - publicans are transmitting via electronic means (ie tvs and speakers)
FAPL v QC Leisure (High Ct)
• S 72(1)© CDPA states that free playing in public of a broadcast does not infringe any copyright in the broadcast or any film included in it
• There is an overlap between ss. 19 and 20 CDPA when it comes to transmission by publicans of the claimants’ broadcasts to members of the public at their venue
• S. 72 CDPA was a defence to infringement of s. 19 and s. 20 CDPA because it could not be construed as limited to s. 19– Unlike s. 34, s 72 is not tied to s. 19– If it was tied to s. 19 it would have no content because every act
falling within it is prohibited by s. 20
C-283/10 Circul Globus
• FAPL ruling followed in C-283/10 Circul Globus Bucuresti v Uniunea Compozitorilor si Muzicologilor din Romania CJEU (Third Chamber) 24 Nov 2011
• Globus Circus - organiser of circus and cabaret performances publicly performed musical works - argued that a licence was needed from UCMR; latter argued that right to communicate musical works to public was subject to compulsory collective management; former argued that it had obtained permission from individual authors
• Reference on interpretation of Art 3(1) Dir. 2001/29
C-283/10 Circul Globus
• HELD: following Joined Cases C-403/08 and C-429/08 FAPL that Art 3 of Directive 2001/29 was not intended to cover live presentation or performance of a work, ie no activity which does not involve a transmission or retransmission of a work
• See also recital 23 of Directive 2001/29
C-607/11 ITV Broadcasting v TV Catch UP Ltd
• Referred questions - does Art 3 cover a situation where:• Authors authorise inclusion of their works in terrestrial
free to air tv broadcast intended for reception in a Member States
• A third party provides a service whereby individual subscribers within the intended areas of reception of the broadcast who could lawfully receive the broadcast on a tv receiver in their homes may log on to the third party’s server and receive the content of the broadcast by means of an internet stream?
Information Society Dir.
• Where does the act of communication to the public or making available to the public take place?
• The place from which work is transmitted - but is this place of uploading or location of the server?
• The place where the work is received?• Or in both the place from where sent and in place
where received?
Information Society Dir.
• Compare Football Dataco v Sportradar Case 173/11 on location of act of re-utilisation for database right
• Mere fact that the website containing data is accessible in a particular national territory is not enough [ubiquitous nature of Internet]
• There must be evidence from which to conclude that there was an intention to target persons in that territory