EU copyright should (probably) allow digital resale but not fair use: UK response to EC Public Consultation

5 March is approaching fast. If you are wondering what this date is all about, wonder no further. 

It is the new (extended) deadline for submitting responses to the Public Consultation on the review of EU copyright rules, which the Commission launched on 5 December last [see here]. As this Kat learned from Twitter, apparently so far the Commission has received over 8,000 responses, of which a 15-people task force in Brussels is in charge [of course the relevant hashtag - and likely trending topic - was #dreamjob]. 

Yesterday the UK Intellectual Property Office (IPO) released UK Government's neat response to the Consultation, which takes account of a 2013 public call for views on copyright in Europe and representations from stakeholders on the consultation itself.

Overall, the UK response "stresses the importance of copyright, the UK's desire to see a robust, flexible and modern copyright framework, and the need for any proposals to be grounded in good evidence" [are you a copyright student and wish to get ready for your spring exams? OK, then answer the following question: do you think that this phrase is sufficiently original to attract copyright protection?].

As to specific points in the EC Consultation, this is what UK Government thinks:

Robust ...

Cross-border portability
The UK is in favour of increasing cross-border availability of content services by means of market-led licensing arrangements [possibly similar, to a certain extent, to the Copyright Hub? Or perhaps Armonia?], and also welcomes legislative initiatives such as the recent CRM Directive [on which see here and here]. However, the UK is not convinced that specific actions that will enhance content availability across borders at EU level have yet been identified.

Digital transmissions
The UK "notes that a number of the questions asked under this section appear to be adequately addressed by the existing copyright framework and a number are currently being considered by the Court of Justice." 

Indeed: as Merpel noted at the time when the EC Consultation was launched, in some significant instances the questions posed draw upon cases that have been or will be decided shortly by the CJEU, which - in doing so - has interpreted/will interpret existing EU and international legislation. While in many cases the Consultation asks you to respond 'yes' or 'no' as if the Commission could decide to do either way, it may not be that easy to think that any winning option could actually translate to workable legislative initiatives.

This said, the response notes that UK stakeholders have not raised with the UK Government any specific problems in relation to the issue of two rights being applicable to a single act of economic exploitation. In some situations, such as where a download is provided, necessary reproduction will usually be permitted under an express or implied licence. In other situations, such as the lawful reception of broadcasts, necessary temporary reproductions will be permitted under the temporary copying exception as per Article 5(1) of the InfoSoc Directive. 

As to the issue of linking, while welcoming the outcome of the recent Svensson case [on which see here for references], UK Government remains committed to a law that supports efforts to tackle online copyright infringement: "It is important for the interests of right holders that the law continues to forbid systematic provision of links that are known to lead to infringing content. In the UK this is done partly outside the copyright code, through fraud offences for example." 

... Flexible ...

The applicability of the temporary copying exception to internet browsing is another question being considered by the Court of Justice of the European Union (CJEU) [it is Case C-360/13 Meltwater, on which see here]. Quite reassuringly, "[i]t seems clear to the UK that the making of temporary copies during the course of browsing (whether on the screen or in a cache) fall within this exception. Right holders have the option of putting such content behind a paywall or applying other technological restrictions if they wish to control access to it."

Finally, as regards the issue of digital resale, "the UK notes that traditional secondary markets for goods can encourage both initial purchase and adoption of technologies, and the prospect of sale on the secondary market may be factored in to an initial decision to buy and to market prices. There seems to be no reason why this should not be the case for digital copies, except for the “forward and delete” issue noted by the consultation." That's quite progressive stance, notes Merpel. Certainly this is an area that calls for prompt consideration. 

Readers will remember that the situation in the US remains in the sense of denying digital resale. In its 2013 decision in Capitol Records v ReDigi [noted here and here] the US District Court for the Southern District of New York held that the first sale defence (the EU doctrine of exhaustion was derived from US first sale doctrine) is limited to material items. Prior to the ReDigi decision, in 2010 the 9th Circuit issued its judgment in Vernor v Autodesk (a case concerning promo CDs), in which it ruled that, pursuant to 17 USC §109(d) the first sale doctrine does not apply to a person who possesses a copy of a copyright-protected work without owning it. Recently, the US Register of Copyrights Maria Pallante has called for US Congress to consider whether US law should allow digital resale. Possible options on the table might be the following: on the one hand, Congress may believe that in a digital marketplace, the copyright owner should control all copies of his work, particularly because digital copies are perfect copies or because in online commerce the migration from the sale of copies to the proffering of licenses has negated the issue. On the other hand, Congress may find that the general principle of first sale has ongoing merit in the digital age and can be adequately policed through technology — for example, through measures that would prevent or destroy duplicative copies.

... Modern (not to say the ultimate hipster)

Registration
Although existing international treaties [see Article 5(2) of the Berne Convention] prohibit formalities as a condition for the protection and exercise of rights, in its Consultation the Commission noted that this prohibition is not absolute. 

That is true. As William Patry noted in his How to Fix Copyright [a book one should always carry around for both enjoyment and enlightenment], Article 5(3) Berne adds that "Protection in the country of origin is governed by domestic law." The meaning of paras 2 and 3 together may be that countries are free to impose any formalities they wish on works by their own authors or those works whose country of origin is that country. If all countries did so, formalities could be imposed without violating any treaty obligations. 

UK believes that "[r]egistration systems can have a useful role in the identification and licensing of works [look again at the Copyright Hub, or think of the Global Repertoire Database]. The potential benefits can include easier licensing at lower transaction cost and better information about the availability and ownership of works, which should lead to more efficient markets in licences. However, registers should be provided on a voluntary basis, and registration should not become a de facto formality."

Identifiers for works
It is submitted that the EU should encourage development of strong, open standards for identifiers and other metadata.

Exceptions and limitations (look at UK response for specific exceptions and limitations)
UK Government believes that "[t]he flexibility currently provided by the Infosoc Directive [which this Kat believes not to exist in such broad terms] is helpful as it means Member States are able to update their laws to keep pace with technological change, and to do so in a way that meets their own national circumstances. The three-step test [as per Article 5(5)], which sets a boundary to all exceptions and limitations, helps to ensure that copyright remains able to incentivise the creation of new works and protects the rights of creators."

Judging fair use: a matter of law or fact?

Overall, it is believed that national disparities in respect of relevant exceptions and limitations are not particularly problematic. 

Current exhaustive list of exceptions and limitations is not the best solution, but a completely open [US-style] “fair use” approach would create uncertainties and result in the CJEU having to rule on a case-by-case basis [how could this be? The CJEU would be asked to rule only over interpretation of relevant EU provisions, not matters of fact, which would remain for national courts to decide. Deciding whether a certain act can be considered fair use of a work looks more like a matter of fact, rather than something (ie a matter of law) that would require the CJEU to rule on a case-by-case basis, as UK Government suggests]. 

A EU copyright title?
It might be a good idea, but "[with so many individuals and businesses reliant on and affected by copyright, and with so many contentious issues at stake, it would be unwise for the Commission to rush into any changes of this scale or ambition."


UK Government would also be interested in seeing your own or your organisations' responses to the consultation. If you wish to share them with the IPO, then email them to policy@ipo.gov.uk.