EU Copyright Reform, Fundamental Rights & Life as CJEU Judge at the ERA Copyright Conference

This Kat had the pleasure of attending the ERA annual Conference on EU Copyright Law in Trier on the 22nd and 23rd November. The event involved two days of discussions focused on EU copyright reform as well as the interplay between copyright and fundamental rights from prolific speakers. If you couldn’t make it, here are some of the highlights from the event.

EU Copyright Reform

The first day was organised into two sections. The first section focused on copyright in the digital single market. Naturally, these discussions where dominated by the recent developments in EU copyright reform [spoiler alert: so is this post!].

Jaime de Mendoza Fernandez (Legal Officer DG CNECT, European Commission, Brussels) detailed the latest on the proposed Directive on copyright in the Digital Single Market. He recalled the key objectives: 

1) Adapting exceptions that are key in access to knowledge in cross boarder and online uses, which is mainly addressed through the text and data mining optional exception. Noting, that the relationship between the new and existing exceptions is still something to be decided.

2) Facilitate licensing to ensure wider availability of content online (title 3), proposal for a new article which allows member states to include extended collective licensing.

3) Ensure a fairer marketplace for copyright. It is under this objective that articles 11 and 13 come into play.

Jaime stated that Article 11 (press publishers rights, Katposts here) the European Parliament and Council reduced scope of right from all users, and reduce length of protection, but Council did not support idea of presumption of enforcement.

In relation to Article 13, this was intended to address the so-called “value gap” (Katposts here), by considering measures that the Parliament and Council believe should be taken by platforms. After 2 years of discussions, the EU Parliament and Council agreed to go further, suggesting that certain service providers, online content sharing providers (definition yet to be finalised) should be considered as ‘communicating to the public’, where previously this was on case by case assessment, we would assume as a starting point that the services are communicating to the public. Such service providers would not benefit from the safe harbour Directive for copyright purposes and would therefore need to acquire licences which included the acts by their users.

Later, Tobias McKenney (Senior EU IP Policy Manager, Google) argued that that would be logistically impossible as there is no such licensing infrastructure available to deal with the amount of material currently uploaded to platforms such as YouTube. Furthermore, an upload filter system would not be able to recognise freedom of expression or copyright exceptions. He said that Google do not agree with ISP definition and that the removal of the the safe harbour protection would make it impossible for their platforms to remain open. 

Whaaat? No more YouTube?!
Photo: Javcon117

However, since the conference, another version of Article 13 has been published here. This version appears to suggest that platforms would only be liable outside after a failure to provide a notice and take down procedure, or failure to cooperate with rightsholders in obtaining a licence. Although, in an open letter to the EU Commission, Parliament and Council, entertainment industry lobbyists argued that this new version “would need fundamental changes to achieve the Directive’s aim to correct the Value Gap/ Transfer of Value,” and that “licensing needs to be encouraged where the rightsholders are willing to do so but at the same time not be forced upon rightsholders.”

Jaime stated that “the three institutions will be able to come up with a balanced revision.” However, the latest triologue discussion took place today, and no such agreement was made, and there is another triologue scheduled for the third week of January, so watch this space!

Copyright Infringement or Freedom of Expression?

This Kats visit to Copenhagen 

In the afternoon, Professor Dirk Voorhoof (Ghent University) gave a thoughtful presentation looking at freedom of expression and its relevance to copyright. Once case that Dirk mentioned that was particularly interesting related to two Danish sculptures depicting Hans Christian Anderson’s the Little Mermaid, one purporting to represent love and hope (by Edvard Eriksens), the other, representing the “genetically modified” mermaid (by Bjørn Nørgaard.) The case concerned a calendar which used photographs of both the sculptures and was found not to be copyright infringement (or so my loosely translated version suggests, U.2009.875Ø).

This topic was discussed in more depth with the last talk of Day 1 from Professor Jonathan Griffiths (Queen Mary University London) on the relationship between copyright exceptions and fundamental rights. Jonathan considered in particular the current references pending before the court such as Funke Medien (C-469/17). In this case referred by the German Court, the CJEU was asked to consider whether a confidential military report that is not fictional but entirely real enjoy copyright protection, and whether other factors such as freedom of expression should be taken into account in order to minimise, or even rule out, such protection? The Advocate General Opinion was published last month (Katpost here) and we eagerly await the response of the CJEU.

Life as a CJEU Judge and defining a work in the Levola case

Speaking of the CJEU, Judge Marko Ilešič of the CJEU in Luxemburg since 2004 opened the second day of the conference with an insightful talk on the life as judge in the European Court. Thinking about critics of CJEU judgements Marko recalled the quote “have you ever seen a good poem written by a committee?!” Probably not. The same rule applies to legal provisions and judgements, he said. He highlighted how every judgement is a compromise between the members of the chamber and the judgement is written according to the will of the majority.

He also mentioned that the court has had limited opportunity to interpret the basic notion of copyright law – the concept of “work” – and since there is no definition in the Directives he seemed quite keen to consider this concept at EU level. In relation to the latest case of this nature, Levola (Katpost here) Marko pointed out that the referring question did not ask “what element should be fulfilled?”

For the first time the CJEU attempted to define what a work should be; which includes two elements: Intellectual creation and (2) the expression of this intellectual creation. Whether a work is an intellectual creation is a question of fact and therefore not for the CJEU to consider (since it is bound by the facts decided at national court). In the Levola case, the intellectual creation had been specified in the facts of the case by using the word “original” and so in principle, could be an expression of the intellectual creation.

Views of Trier

Marko pointed out that if you compare the opinion and judgement, there are some slight differences, even though the outcomes was the same. The Opinion referred to Sieckmann case, but the judgement did not refer to trade mark law. Trade mark needs to be fixed for registration, but copyright does not at EU level (we do have a requirement for this in UK Law). Therefore, it could be protected in principle. BUT, he said, in order to practice the protection, it must be identifiable – competitors should be able find what it is about – which is problematic since the taste of the cheese is subjective. 

Overall, the event was two days jammed packed with thought provoking talks of the most recent developments and important questions in copyright; a treat for any copyright enthusiast!