How Far Should the Law Go In Order To Protect The Right Holders?
For over a decade now the progress of digital technology and the establishment of new technology with first example the internet had a big impact on copyright law. In this new environment where everything that can be copyrighted can be digitalized, and anything can be digitalized can be distributed at a finger click in almost no time. The advent of technology has changed the way copyright works. Before a couple of years going into a music shop and steal a music CD was consider to be theft but since the internet downloading a track does not look like theft any more. Since the Internet the cost of making perfect reproductions of work has reduced dramatically but in top of that it allows these reproductions to be disseminated as easily and cheap as never before. It would be unimaginable in a digital era not be able to control reproduction. The European Community in an attempt to harmonize copyright, the last directive the so called Information Society directive, attempts to set new standards for author rights to control the use of their work in respect to reproductions, communication to the public by any means and the distribution.
The aim of this research is to evaluate how broadly the right of reproduction has been interpreted by the European Community to provide protection to just 11 words and by providing this protection whether exceptions can be apply in order to balance this right.
All research was conducted through legal methods by analyzing legislative history, statutes and case law. In Chapter 2 there will be an overview of Copyright law history and how the law responded to new technologies such the printer and VCR.
Chapter 3 is dedicated to the exclusive rights legal background and how exclusive rights apply online around the world. Furthermore chapter 3 will also include an overview of the reproduction right and how is interpreted in international treaties.
Chapter 4 analyzes the case of Infopaq but also analyse the UK law pre-Infopaq and how the courts deal with these case with the substantial part test and the different approach in Meltwater after the Infopaq case. Chapter 4 will follow the critics and reviews as to the effects of these cases.
Chapter 5 is about exceptions and the critical analysis of these exceptions. As well as contrasting the US fair deal with the fair dealing. Finally an analysis on the “three-step test” and whether it should be used when dealing with exceptions.
Chapter 6 is about the concerns of copyright and how it may possibly affect the future of copyright as well as the creativity of the authors.
Chapter 2: History
Copyright history can be traced back to the 6th Century, where it was the first time that copyright was mentioned. It was firstly mention in a judgment of Diarmaid against Christian missionary Columba also known as Saint Columcille. Columcille was visiting monasteries and he was borrowing books from their libraries and had his monk copy them and he was able to distribute them. The high king of Ireland in this case pronounced the world first copyright judgment in the year of 561. He said, “As to every Cow its Calf, so to every Book its Copy” . With his ruling he recognized the primacy of the authors’ claim to ownership. It is worth noting that at that time all books copy where made by hand since printing was still not invented and therefore it was a slow process mainly done by monks and it was limited to copying religious works and most people where illiterate and only privileged men had access to them.
However in most countries and specifically in Europe the origins of copyright lie in the efforts to regulate and control the output of printers when the technology of printers was finally invented and established in the 15th and 16th centuries . When printed invented people where able to have as many exact copies of work they want, as long as they could afford to pay them. This on one hand was a positive think for the state and church since it meant much more rapid and widespread circulation and in cases of Bibles and government information and therefore able to educate people base on their beliefs. However there was a negative site in respect of undesirable content such as criticism against the government and religion. In order to establish control over printing in Europe the government required printers to have official licenses in order to be able to produce any books. The main purpose of these licenses was to give to the printers the exclusive right to print specific works for fixed periods enabling him to prevent others printing during that period.
Licensing Act 1662
In England, the printers termed as stationers at the time formed an organization known as the Stationers’ Company in the 16th century which granted them with power from the Licensing Act 1662, to require the entry in its register for all lawfully books printed at the time. This result a dominant position over books publishing in the 17th Century in England since they had the power to seize any books suspected of containing matters hostile to church . By 1681 the Licensing Act had passed by law and established rights of ownership for books.
Statute of Anne
In 1707 after the UK creation by the merging of Scotland, England and Ireland the new parliament pass its first piece of legislation in respect of copyright the Statute of Anne which passed in April 1710. This is consider the first world copyright statute and it provided legal protection for 14 years for works published after the Act and also a 21 year protection for any works already in print. The Act provide property in books in order to bring stability to the insecure books trade and at the same time it introduced measures to ensure that no monopolistic abuses could affect the trade. The board meaning of the act to encourage ‘learned Men to compose and write useful Books’ still remains today .
The main issue with legislation at UK at that time was that since it was domestic law it could not be applied outside the UK, like the old Licensing Act it was limited to the territory in which it was granted and leaving the authors unprotected beyond their territory. This was considered a big issue as the international markets starts to rise in the 19th century therefore the states enter into negotiations for the recognition and enforcement of foreigners’ copyrights. The result of these negotiations in 1886 was a multinational agreement also known as the Berne Convention. The convention relates to the protection to literary and artistic works, which includes films also and required its signatories to provide protection for every production in the literary, scientific and artistic domain . The main features of this convention are, base on articles 3-5 the convention give citizens that signed the convention the same rights of copyright that gives to its own citizens. The term of protection has also increased at a greater level comparing with the 1710 Act, the convention protect a work for a lifetime of the author plus a 50 year post-mortem period . Furthermore the protection of the legislation had been expanded to prevent the reproduction, publication and public performance of the copyright work, but also granting copyright owners’ rights concerning the adaption and recording of their work. In overall the convention enlarged and strengthened the rights of the copyright owners . Moreover the convention provide some sort of protection to individual users as well as the public in general base on section 2(1) any fair dealing with any work for the purposes of private study research criticism review or newspaper summary would not constitute an infringement of the copyright in the original work. Also it provides that anyone wish to reproduce and sell any published work during the last 25 years of the post-mortem period of copyright protection they were free to so if they give sufficient notice to the owners.
Berne Convention in the Copyright Act 1911
The UK implemented the Berne Convention in the Copyright Act 1911 which came into force on 1 July 1912. The Act managed to closed the gaps that grown during the last century and replace them with a much more general approach. It also abolished the common law copyright in unpublished works replacing them with statutory scheme. Moreover the act responded to technological development of that time by conferring a copyright on a new subject not mention in Berne, the sound recording. The increase of new technology however was too much for the 1911 act and the Copyright Act of 1956 came into force on 1 June 1957 that extended protection to films and broadcasts, and also typographical arrangements of published editions of works. The Act made a distinction between author and media works and gave on one part copyright to literacy, dramatic musical and artistic works and in the second part copyright to sound recording films, broadcasts and published editions.
Copyright, Designs and Patents Act 1988
On August 1989 in response to more technological development the Copyright, Designs and Patents Act 1988 (CDPA 1988) came into force. The act included cable and satellite broadcasts, and computer programs or software’s, database both in paper and electronic. At the time copying technology was advancing meaning that anyone could make a copy easily. Such type of technology was the VCR, in the early 1980, many major copyright holders railed against video cassette recorder as an evil that would destroy the entertainment industry profit. The VCR also let to the Supreme Court ruling that provided much needed protection for the developing technology. The new Act extended the protection to include a 70 year post mortem term. The nature of the acts which the copyright owner could prevent others from engaging in have been expanded to include, the right to reproduce, publish, rent or lend, perform or broadcast copyright material. Furthermore the act provided certain moral rights in relation to the original literary, dramatic, artistic and musical work as well as films, such as the right to be identified as the author of the work in question, as well as the right to object to the derogatory treatment of the work . Furthermore the Act had undergone transformation for the users in respect of the acts that were permitted. The five uses set out in section 2 of the 1911 Act where now included in two separate section, ss29 and 30. Fair dealing for the purpose of research and private study no longer extended to any copyright work, nut only to dramatic, literary, artistic and musical works. Also fair dealing for the purpose of criticism or review was permitted in relation to any copyright work as long as the use was made with sufficient acknowledgement.
In the 1990s further important developments in the international protection of copyright have been made. In 1994 the TRIPS agreement provided further protection on copyright, it provides a number of copyright provisions and required compliance form the states wanted to be members of the World Trade Organization. The provisions require stated to, a) sign up to the Berne Convention, apart from the moral rights provisions, b) protect computers programs and databases, c) provide for rental rights in at least computers programs and films and d) where the duration of copyright is calculated other than by reference to the life of a natural person, give a minimum term of 50 years calculated from the dare of authorized publication or of the works being made. Furthermore base on article 9(2), it makes explicit what had been previously been an underlying principle of copyright law, that it protects expressions rather than ideas.
The international respond did not stop at TRIPS agreement only, in 1996 two further treaties implement the Berne Convention were agreed at WIPO (World Intellectual Property Organization). After TRIPS the WCT (WIPO Copyright Treaty) followed. The Treaty provided that copyright protected only the form in which the work was expressed and not its underlying ideas, also it required copyright protection for computers programs and databases. WCT main purpose since it was release at the time that the internet was rising was to respond to the issues created at the time, and therefore added rights to deal with distribution and public communication of works and to support the use of technological measures in order to protect unauthorized works recorded digitally. The second WIPO treaty was the further protection of performers and producers of sound recordings, implementing the provisions of the Rome Conventions 1961.
Since the 2000 further alterations to the copyright regime where made, one of the biggest changes however to copyright law are the changes implemented by the recent Copyright and Related Rights Regulations 2003. These regulations were enacted to implement the provisions of the European Information Society Directive, which went further in respect to the internet technology and sough to address the threats that emergence from digital technology and information exchange on the internet . The Directive replaced the restricted act of broadcasting by a right to prevent the communication of the work to the public, either by broadcast or by making it available to the public by any electronic transmission in a manner which allows members of the public to access the work from a place and at a time chosen by them.
The technology development forced copyright law to undergo several changes over the years. As seen above when the printers first invented copyright was a response to the growth of the printing technology that was able to rapidly multiply and distribute copies of written works. The history showed that as technology growths copyright law will not remain still, since as seen it responded to photography, cinematography, sound recording, broadcasting, cable transmissions, computer programs and the later change the Internet. Whether the law can keep up however is something that will be discussed in the following chapters.
Chapter 3: Exclusive Rights
Copyright as the word implies provide rights owners the power to exclude others from making copies from their work and therefore be able to obtain some economic benefit in return. Exclusive rights have been criticised over the years for the broad interpretation that was left to each Member state to shape to their national laws. The European community in its harmonization effort had to content with the fact that Member States laws differ in their approach to regulate the exclusive rights. On one hand of the field are national laws and contain fairly broad and abstract descriptions of the author’s exclusive rights, as is the case for example in Belgium and Hungary. On the other hand the national laws such in the United Kingdom the Copyright, Designs and Patents Act of 1988 that sets out in intricate detail the acts restricted by copyright or related rights. Furthermore each member state also uses its own copyright terminology. For example under some laws the distribution of tangibles copies is part of a wider right of the communication to the public right where in other its included in the reproduction right or dealt separately. Also the making available right may be part of communication to the public or public performance right where in other countries making available is the overarching term .
However in the case of European Union, the exclusive rights are increasingly legislated in a single instrument, the information society Directive, but this is not the case at an international level. Since at international level different treaties are concluded for the various categories of projected subject matter, as the WCT, the WPPT and the draft WIPO Broadcasting Treaty illustrate. Also the TRIPS Agreement it only provides for the protection of authors, as well as for related rights for performers, producers of phonograms and broadcasting organizations. The scope of protection is less far reaching than that provided for in Rome Convention.
These rights are usually the following :
a) Reproduction Right
b) Distribution Right
c) Communication to the public, which includes making available over the internet.
d) Transformation or Adaptation Right.
Exclusive Rights Online
Right of Reproduction
The Right of Reproduction of a work which this research will focus is the heart of copyright. It is protected in the Berne Convention by article 9 and also the Rome Convention by article 1e. The meaning of reproduction over the years has changed due to the development of new technology. These changes resulted in a very broad definition of what reproduction in the Information Society Directive Article 2 sub A is. In this directive the European legislator opted for a very extensive definition of reproduction, by joining direct and indirect reproduction, temporary or permanent reproduction and reproduction by any means and in any form. The Database and the Software Directives contain contains further provisions for the protections of this particular works that can be consider even narrower than the Information Society Directive on reproduction
Today the reproduction right taking into account the ease, quality and speed of copying on the internet is frequent the subject of the courts. Some common violations of the reproduction right on the internet involve the copying of music such as uploading, downloading or otherwise transferring music electronically from one party to another. In the 1990s and early 2000s, file sharing software made by companies such as Napster and Grokster enabled parties that did not know each other to share music over the internet. The early law suits brought by right holders though at the time were often successful and led to the dramatic disappearance of such services. Moreover new forms of file sharing services continued to emerge and at mid 2000s the music industry started to pursue suits not only against the file sharing services but also to consumers. Many of the trials at that time have been settled before trial but many of them however resulted to judgment. In the case of Capitol Records, Inc vs. Thomas-Rasset a jury found the defendant Jammie Thomas Rassett had illegally downloaded 24 songs via peer-to peer file sharing application known as Kazaa and awarded damages to the copyright owner of $1.92 million.
Right of Communication to the Public
The right of communication to the public covers the transmission and distribution of copyright works in a non-physical form. Unlike the public performance the public is not present at the place where the communication originates. This new right includes broadcast and cable distribution, and also online, on demand distribution. This can be consider as an important growth area, with further technological developments likely – hence the desire to establish a clear and coherent system of EU wide protection as priority . Authors must be granted 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 . For performances, phonograms and broadcasts, the right is limited to the making available to the public so it does not cover broadcasts except through on demand services . The European Court of Justice has given its first ruling on the right of communication to the public in the Sociedad General de Autores y Editores de España (SGAE). v. Rafael Hoteles SA. In this case the Spanish collecting society which represents the authors and the publishers, issued legal proceedings against the Hotel owner for infringement of intellectual property rights, on the fact that the hotels rooms were equipped with televisions sets. The issue in this case was that an authorization for an act of communication to the public has not been requested. The SGAE sought for non-payment of the authorization fee. The national court has dismissed the case on the basis that the hotel rooms was strictly domestic location and therefore it could not constitute to an act of public communication and therefore not authorization was needed. The case was the referred to the ECJ. The ECJ in their ruling considered the Berne Convention precepts regarding the authors’ rights to public communication. The court held that the installation of TV sets in the room that receives signal through cable does not constitute communication to the public. The ECJ gave a broad interpretation of communication to the public in this case, it was held that the distribution of a signal by means of television sets by a hotel to customers staying in its rooms and a technique is used to transmit the signal it will constitute the communication to the public right under article 3 of the InfoSoc Directive. The ECJ also added that the fact that the hotel had a private nature will not prevent the communication of a work by means of television sets from constitutes communication to the public.
At an online world this right has been applied in many resent cases such as Newzbin . In this case Kitchin J gave to the term make available a more natural an ordinary meaning. In this case the question was whether a website that indexes and categorizes could constitute the right to communicate. The court held that it does. Taking into account this case even placing a link on website or facilitating a download from a website will fall under the broad right.
The distribution right relates to the distribution of the original work, or tangible copies of it. Prior to the directive there were many differences between member states as to the form of the distribution right, exceptions to it, and the point of its exhaustion. Under the Info. Soc. Directive, authors must be ranted ‘in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise’. The leading case to consider under this right is the case of Peek & Cloppenburg KG v Cassina SpA . In this case Peek and Cloppenburg used chairs from Cassina’s range in their shops in Germany for display and for the use of customers. The chairs had been manufactured in Italy and imported into Germany without the consent of Cassina. At the time copyright protection did not subsist for chairs in Italy. Cassina alleged infringement of the distribution right. The ECJ held that the concept of distribution to the public, otherwise than through sale, of the original of a work or a copy thereof, for the purpose of Article 4(1) of the Infosoc Directive 2001/29, covers acts which entail, and only acts which entail, a transfer of the ownership of that object. Para 36. The display by Peek and Clobbenburg of the chairs and their use by the public in the shops was not a transfer of ownership and thus not an infringement. Given this finding it was not necessary to answer the second question which was as to whether protection accorded to the free movement of goods could preclude exercise of the distribution right if the items were not protected by copyright in the Member State in which they were manufactured and placed on the market.
At an online world distributing a work to other computers would seem to always require the simultaneous creation of copies of the work on the recipients’ computers. It’s therefore common for plaintiffs to allege violation of the reproduction right whenever the distribution right is asserted. In Warner Bros. Records, Inc v. Walker , an Allegheny College student used a peer-to-peer file sharing program knows as Ares to download 19 copyrighted songs from other users using Ares. The court found this to constitute a violation of the reproduction right. However the court also found the defendant to have violated the distribution right because the Ares program like similar other programs, contained a shared folder feature where users could place music files so that they could be downloaded by others users using the same program. The court the noted that placement of copyright noted that placement of the copyrighted music files by the defendant in that shared folder in conjunction with the proof that they have been downloaded from that folder by others, constituted a violation of the distribution right even if the defendant was unaware at the time that his actions made the music available for others to download .
The Right of Reproduction at an international level
Despite the major importance of the reproduction right the WCT does not include a broad reproduction right. The European Community proposal for a broad reproduction right to be included in the WCT met with strong opposition from other parties, which include also EU Members. Taking into account the Information Society Directive, the European Law provides broader protection than is required on the basis of the WCT and other International instruments to which it and/or it member states have adhered. In the European Community no reproduction right for authors existed until the implementation of the Information Society Directive. An important achievement of the Info Soc Directive was to update the acquis to meet the requirements of the WCT and WPPT. However the terminology used in the directive however does not follow WPPTs definition of reproduction but it rather sweeps together terms from various treaties and directives. Under article 2 of the Information Society directive the reproduction right extends to direct or indirect, temporary or permanent reproduction by any means and in any form in whole or in part. As the Explanatory Memorandum to the 1997 Proposal explains, ‘direct’ reproduction means reproducing a work or other protected subject matter directly onto the same or different medium. The term ‘indirect covers reproductions made through an intermediate stage, for example the recording of a broadcast of a phonogram constitutes a reproduction of the phonogram. The second element of the directive the temporary or permanent is intend to explain the fact that the very different types of copying that might occur in the digital environment are all acts of reproduction within the meaning of this provision. Meaning that the result of reproduction may be a tangible permanent copy like a CD but it may be as well not be permanent like for example in the computer memory .
The broad interpretation of the Reproduction right will be analysed in the following chapter using the European Community judgment in Infopaq .
Chapter 4: Case Law Analysis and Review
This chapter will examine several cases around the world and how the reproduction right was broadly interpreted by the courts. The leading case that will be discuss in this chapter is the case of Infopaq but also cases pre-Infopaq and post-Infopaq in order to see the impact that this case had in the UK but also to the European Community in general.
In this case, Infopaq International operated a business which collected summaries of selected articles from Danish daily newspapers. Danske Dagblades Forening (DDF), a professional association of Danish daily newspaper publishers, became aware in 2005 that Infopaq was scanning newspaper articles for commercial purposes without the relevant authorisation from the right holders. Taking this for account that relevant authorization from right holders was needed, DDF complain to Infopaq about the procedure. Infopaq denied that any authorisation was required, and brought an action against DDF before the Eastern Regional Court, claiming that DDF should be ordered to acknowledge that Infopaq was entitled in Denmark to apply its data capture procedure without DDF’s or its members’ consent. The regional court dismissed that action and Infopaq then appealed to the Danish Supreme Court. The Supreme Court stayed the proceedings and asked the ECJ for a preliminary ruling on the followings: a) Whether the concept of reproduction in part within the meaning of the Copyright Directive is to be interpreted as meaning that it encompasses the storing and subsequent printing out on paper of a text extract consisting of 11 words; Whether acts of reproduction occurring during a data capture process, such as that at issue in the main proceedings, satisfy the conditions laid down in Article 5(1) of the Directive and whether that process may be carried out without the consent of the relevant right holders, since it is used to draw up summaries of newspaper articles and consists of scanning those articles in their entirely to produce a digital file storing an extract of 11 words and then printing out that extract. The ECJ Held that Infopaq’s data capture process did come within the concept of reproduction as set out in Article 2 of the Directive if the elements reproduced were the expression of the intellectual creation of their author. Also the ECJ held that the act of printing out an extract of 11 words, during such data capture process, was not transient in nature as requires by Article 5(1) of the Directive. Therefore that process could not be carried out without the relevant authorisation from the right holder .
This decision is consider having high impact upon fundamental principles of Copyright law. The court conclusion that the European standard of originality, authors own intellectual creation, applies not only in the limited contexts to which is has been applied in legislation such as software, photographs and databases; but to all Berne Convention ‘works’ under the European acquis . The ruling on this point is a striking example of judicial activism in the interests of harmonisation. At the time the Information Society Directive was negotiated, the generalization of the originality and creativity standard was considered to be neither necessary nor possible. The ECJ however in this ruling the court interpretation looks rather like wishful thinking .
In addition to this, this case also came to other significant conclusions. Firstly the interpretation of the concept of reproduction, in whole or in part under article 2 of the Information Society directive and secondly the general approach to the interpretation of the exceptions and limitations in copyright law. In the first finding the court considers the conditions under which partial copying of work constitutes an actionable reproduction. In particular to the Danish Supreme Court question of whether the copying of 11 words could constitute reproduction in part. The court held that “the reproduction of an extract of a protected work which, like those at issue in the main proceedings, comprises 11 consecutive words thereof, is such as to constitute reproduction in part within the meaning of Art.2 of Directive 2001/29, if that extract contains an element of the work which, as such, expresses the author’s own intellectual creation”. Meaning that in assessing partial infringement, the originality of any reproduced part of a work is the basic criterions.
The Infopaq approach taken by the court is similar to the way the United Kingdom courts in past years decided whether or not a substantial part has been infringed. Taking into account the Ladbroke , in this case Ladbrokes admitted that he copied some parts of Hill’s coupons, but denied that Hill was entitles to copyright in those parts. They admitted that certain other parts of Hill’s coupons were protected by copyright, but they had not copied those parts. The House Of Lords held that the coupon had to be looked at as a single literary work and that having regard to the skill and effort involved in working out certain parts of Hill’s coupon the coupon as a whole was an original compilation which was protected by copyright. Lord Peace in his judgment said that in deciding whether a work in the nature of compilation is original, it is wrong to start by considering individuals parts of it apart from the whole. In such cases the courts have looked to see whether the compilation of the unoriginal material called for work or skill or expense. If it does, it is entitled to be considered original and to be protected against those who wish to steal the fruits of the work or skill or expense by copying it without taking the trouble to do it themselves. In the question that arose from this where it is contended that what the defendant has copied is one or more of the unoriginal parts not the compilation as a whole. Lord Pearce said that, whether a part is substantial it must be decided by its quality rather that its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not to be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. Lord Pearce indicated that is meant by one or two judicial observations that there is no copyright in some unoriginal part of a whole that is copyright.
Lord Hoffman summarized the basic position that the question of substantiality is a matter of quality rather than quantity.
Another case to consider pre-Infopaq is the case of Designers Guild Ltd v Russell Williams (Textiles) . In this case Designers Guild sued Williams for infringement of the copyright in its Ixia Fabric design by the latter’s Marguerite design. The trial judge found that Marguerite had been copied from Ixia, and that the copying had been of a substantial part. The court of Appeal although unable to overturn the judge’s finding on the fact that there had been copying reversed his decision on the basis that there had been no copying of a substantial part, since the designs were not enough similar. The House of Lords agreed that the approach of the Court of Appeal had been wrong. The reason for this was that the question of substantiality had to be tested only in relation to the copyright work, not the allegedly infringing work. In this case Lord Hoffman indicated that in cases of artistic copyright the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality in the sense of contribution of the author’s skill and labour tends to lie in the detail with which the basic idea is resented. Moreover Lord Scott distinguished between cases where an identifiable part of the whole of a work, but not the whole had been copied, and those of what he called altered copying where the copying relates to the whole of a work but has not been exact but rather with modifications. He added that in such cases the test of substantiality should be whether the infringer had incorporated a substantial part of the independence skill and labour contributed by the original author in creating the copyright work, and that for these purposes a comparison between the two designs was legitimate, therefore that once there had been found to be copying in such cases, it was almost inevitable that it would be found to be a substantial part as well. Lord Millett however criticised Lord Scott’s distinction and emphasised the irrelevance of the copied design to the issue of substantiality.
A final case to consider pre-Infopaq is the case of Newspaper Licensing Agency Ltd v Marks and Spencer plc In this case, the publishers of certain newspapers assigned to the newspaper Licensing Agency, the plaintiff, certain copyrights, including copyright in the typographical arrangement of published editions of their newspapers. The Plaintiff the licensed press cuttings agencies to take copies from those newspapers on payment of a fee. Mark & Spencer plc, the defendant, obtain cuttings of articles appearing in those newspapers from a licensed agency and then made further copies of some of the cuttings for internal circulation to its executives. The plaintiff then sought an injunction and damages against the defendant, claiming that the defendant had infringed the plaintiff’s copyright in the typographical arrangements of its published editions of newspaper by making and transmitting facsimile copies of the cuttings . The question that arose from this case was, given that the typographical arrangements copyright in a newspaper applied only to the whole newspaper, and not to individual articles within the newspaper, whether the copying of an article from newspaper was copying of a substantial part of the newspapers typographical arrangement. The house of Lords in it is judgment said it was not. The quality is relevant for the purpose of substantiality was the originality of, or skill and labour in what had been copied. In typographical arrangements copyright as applied to newspapers, what mattered was the overall appearance of the newspaper. Lord Hoffman in his judgment dais that he found it difficult to think of the skill and labour which has gone into typographical arrangement of a newspaper being expressed in anything less than a full page. Therefore a copy of the article on the page, which gives no indication of how the page is laid out, is not a copy of a substantial part of the published editions constituted by the newspaper.
However after the Infopaq ruling a different approach has now be taken by the courts in the UK in approaching copyright. A year after Infopaq’s ruling and already the Infopaq ruling entered UK in the case of Newspaper Licensing Agency Ltd v Meltwater Holding BV . In this case the Newspaper licensing Agency Limited (NLA) licences press cutting agencies to copy and distribute newspapers articles and the clients of those press cutting agencies to make copies. The first and second defendants (Meltwater) provide a commercial media monitoring service on line to business clients. Its clients provide search terms and Meltwater provide a report with details of articles containing these search terms including a link to the article and extracts from the articles beginning and the section containing the search term. The third defendant Public Relations Consultants Association Limited (PRCA) is an association representing the interests of providers of public relations services who use the services of Meltwater. Meltwater does not have a licence however it was offered a web database licence by the NLA. Meltwater commenced a Copyright tribunal Reference challenging a number of aspects of the licence it was offers. The NLA sought a declaration that the PRCA or its members need a web End User Licence in order to lawfully receive or use the Meltwater service. NLA alleged infringement by reproduction, possession of an infringing copy in the course of a business and in relation to forwarding the service onto others by distribution. Both Meltwater and the PRCA deny that PRCA’s members need such a licence. They said there was only one single copy sent by the Meltwater and accessed by its clients. They also argued that once Meltwater is licensed it would be a derogation of grant to require an end user to take licence as well. The NLA countered that the licence offered to Meltwater was expressed to be only for the provisions of content licensed parties.
This case overturned the entire previous cases rulings by the courts in the UK. The test for copyright infringement applied by the courts in the pre-Infopaq cases, whether words copied are substantial part of the original is no longer the case in UK any longer. The question now is whether the part copied contained elements which are the expression of the authors’ intellectual creation like in the Infopaq case. The high court had to rule whether there was a copyright in newspaper headlines and text extracts. In respect of the headlines the judge decided that since there was evidence that there could be significant skill in creating the headlines then copyright could exist in them independently or as part of the whole article. However each headline will need to be considered on the basis of its process of creation to decide withers to attract copyright. The evidence also suggested that headlines were devised by a different person to the journalist writing the article. The judge suggested in this case that it might not be part of the article and might also not be sufficiently original to be an independent work. The result of this is that now it will be very difficult to avoid infringement in headlines even in cases where there no sufficiently original to attract copyright themselves, where they created by the author of the article, and are copied with a link to the article. As such, they become part of the article and the also gain copyright protection. The second issue in this was case were the texts extracts a substantial part of the article as a whole. The court held that this decision had not significantly altered the test of quality over quantity but it had restarted it. The actual effect was that if the extract demonstrated a stamp of individuality reflective of the creation of the author or authors of the article, whether it was only a very small part of the article or not it may attract copyright protection . Therefore headlines and text extracts including or excluding the headlines can still attract copyright. The final point in this case was hyperlinks. The terms and conditions of some of the newspapers publishers’ websites stipulate that paid for media monitoring services and their customers require licence to use the content and in all cases the websites could not be used for commercial purposes. The main issue here was whether these terms were part of any contract between the website and the user of the link and whether the use made was for commercial purposes. The judge held that she was not addressed on the law on the effect of incorporation of such terms and conditions via small print, any issue of implied licence or if these aspect affected whether direct access to the websites via the links provide was a way to create infringing copies. Even if there was no decision from the court, the court might have accepted the view that accessing articles via an online media monitoring service link could also breach the terms and conditions on publisher’s websites, as well as infringing any copyright that existed .
The case was referred later in the court of appeal and where Proudman J held that there could be copyright in headlines as literary works. The Court of Appeal also confirmed her view that newspaper headlines are capable of being original literary works saying that this was correct and that her view that some of the headlines are independent literary works was unassailable. Proudman J had followed the Infopaq decision which held that mere 11 words where sufficient in quantity provided that it includes an expression if intellectual creation of the author and rejected any suggestions that the 11 words themselves needed to have a particular artistic quality or be a novel themselves. Furthermore in the appeal the court held that each time Meltwater produces an edition of its news for a client, depending on the search term or agent, a large number of extracts are taken from a variety of publication, in some cases several from the article. Given the principle to be applied, it seems to the court inevitable that some of them will constitute a substantial part of the original so as, when copied by the client, prima facie, to amount to an infringement of copying in the original literary work. The court of appeal indicated that the issue is not whether any particular extract is a substantial part of the original but whether the conduct of the business of Meltwater is such as, on balance of probability, likely from time to time cause its clients, prima facie, to infringe the copyright of the publishers in the original work.
Case law analysis
This judgment has great in importance in the world for the evolution of European Copyright law in the online environment. The courts now depends on the expression of the intellectual creation of the author rather than the common law based on the level of the author’s skill, judgment, labour and capital involved in crafting the work . This case indicates that even a small snippet of content may be protected by copyright and that routine procedures for monitoring, referencing or even linking to content to other websites without having the required licence my well infringe that copyright. This case may as well provide content providers renewed incentives for seeking an injunction against aggregators, clipping services other businesses that ‘scrape’ their websites for information in order to process and distribute this kind of content in a the form of snippet or web links to their own customers. Also taking into account the need for the providers of this kind of services to look at their practices to ensure that they or their commercial customers do not infringe copyright may also affect the landscape of the online media aggregation and monitoring industry.
In the United Kingdom is Derclaye view that the consequences of the Infopaq ruling are obvious . Firstly that it defines the concept of originality for all original works namely in the UK, literary dramatic, musical and artistic works. Taking into account the Infopaq ruling that “it is only the choice, sequence and combination of words that the author may express his creativity in an original manner and achieves a result which is an intellectual creation” shows that creativity is the criterion of originality. The ECJ by adopting this criterion it changes the current situation of sufficient skill, judgment, labour and capital that was applied. It overrules the Ladbroke decision and all the decisions that were mention above. It is Derclay view that this can consider ‘shocking’ for most British practitioners and maybe for all academics. The main change from the Infopaq ruling is for authors of subcreative literary works, since they must feel that they have been ripped of a long-established protection and left with nothing as the United Kingdom does not have an unfair completion law to fall back when copyright protection cannot be obtained. Furthermore in Derclay view is not only the new originality criterion that impacts the United Kingdom Law, but also the ECJ’s interpretation of the term reproduction. The fact that the according to the EU law, reproduction can be in part and must not necessarily be in substantial part has no impact, since at the end the part taken has to be original. Pre-Infopaq, Ladbroke case held that the test of a substantial part was a qualitative rather than quantitative test. The change in the United Kingdom Law is that the part taken must be original in the sense of the authors own intellectual creation. This change on its own means that less will be protected in a copyrights work. Taking parts that represent the author’s skill, judgement or labour will not be considered infringing. Finally according to the ECJ’s ruling the concept of reproduction must interpreted broadly however in the United kingdom the definition of reproduction in the copyright act in ss 16(3) and 17 of the CDPA, is already very broad and in essence almost identical to the art.2 of the Information Society Directive .
Moreover, in the Meltwater case the High court felt bound to implement in English Law the European test for copyright infringement. As it was Derclaye view the English courts now depends on the expression of the intellectual creation of the author rather than the common law criterion of the authors skill, judgment, labour and capital involved in crafting the work. The courts now assumed that Infopaq harmonised the conditions under which copyright protection id conferred for all types of work. This interpretation has also been suggested my Derclaye but also Handig. Hoppner view however is opposite to this. In his view he says that is doubtful that such an expansive conclusion can be actually taken from Infopaq. Since the decision only clarifies what constitutes a reproduction under the Information Society directive, it did not addresses the preliminary question of what constitutes a work meriting copyright protection. Also in his view the findings in Infopaq that the protection of certain subject-matters as independent works presupposes an own intellectual creation appears to be nothing more than the minimum. The ruling does not prevent Members states form setting stricter requirements for the protection of certain types of work. The ECJ merely found that it cannot be ruled out and that parts of the sentence are capable for protection. The ECJ left this on the national law to determine since in essence the ECJ merely held that a work can only reproduced in part if the part itself is protected. Furthermore in his view the text extracts form Meltwater case that provide the user with a clear idea of the subject-matter are capable of depriving publishers of traffic, which in turn makes their websites less attractive to advertisers. Also the extracts since they generate profits for Meltwater thereby appropriate revenues should rightfully go to the publishers as compensation for their substantial efforts for producing the news items and developing their websites.
The Meltwater ruling however leaves a couple of questions open. One of these questions is whether by clicking a link to access the full article of the publisher website constitutes a separate copyright infringement for the users. The court found that this is more likely than not. Meaning that even using such services users infringe copyright
In an attempt from the European Community to harmonize copyright with the Infopaq it seems that this case now creates several issues for websites that are used to just provide a headline since now are considered to infringe copyright. It is quite clear that the 11 words ruling now apply in the UK also. Taking into account the ruling after Infopaq the court confirmed that headlines and the receipt of article extracts and use of hyperlinks can infringe. The impact that this will have are quite obvious firstly the risk that newspaper headline used as the text of links will infringe copyright it can be said that this will more likely decrease the views from users on those articles since it will requires to either have a licence or for the users to go manually and find the news. The second impact is that accessing these headlines without the appropriate licence in place can also infringe copyright or even receiving the media monitoring services email may infringe copyright also. The impact of this is more likely that half of the internet users to be consider as infringers and overruled the basic idea of free information over the internet. The third impact is that the court finding that headlines qualify for copyright and the ECJ open interpretation ruling can extend not only to headline but at least to books titles also. ON the other hand however for over 200 years no English court has ever found a title worthy of copyright protection and even avoided ruling on some more challenging elements of the copyright law where technology evolving faster that the law, the Meltwater judgment is a clear sign that UK copyright law is in need of refresh in order to line up with modern day internet usage .
Google Busted in Belgium
Leaving from the UK the broad right of reproduction has not only hit UK but it also affects the whole Europe, Belgium could not be left out. On May this year the Belgium court ruled an important decision finding Google liable for copyright infringement by it Google News services. The decision in Google Inc vs. Copiepresse et al, Brussels Court of Appeal May 5 20011, this case involved Google that offered news using News located in the US. The plaintiffs claimed that Google is liable for infringement by copying articles from Belgium websites and disseminating the title and extracts of the articles from its websites, without obtained the prior authorisation from the publishers and the authors. In the judgment Google claimed that US copyright law was applicable to determine its liability as that was the placed it cached the articles and from which it transmitted articles titles extracts to Belgium readers. The Belgium court however held though that all the infringing acts were subject to Belgium copyright law. The central issue in this case however was whether Google infringed copyright by reproducing the title and extracts of news articles. Google presented to users an article title taken from a news agency. It also copied the first three lines of the article and other titles on the same subject. The court held that this copying amounted to a reproduction of a significant portion of the publishers’ article. As a result of this Google require to remove all articles and photos from Belgian newspapers in French and German. This is another indication of how the reproduction right now applies online and the dangers that implies.
Many reviewers may argue that service like Google or Meltwater may claim that newspapers were losing visitors and ad revenue due to the fact that these services publish a link and portion of their articles. But firstly taking the tradition of newspapers is all about that little words that will attract you to buy a newspaper for example in a shop. Newspapers for years now have a front page with their main articles in front page, it cannot be said that because you go to a shop and see the title you will not buy that newspaper or in this case read it. Therefore these kinds of services can consider being like shops where you decide what to read. Therefore by be able to see the title before you read it, it will not only encourage internet users to visit the newspaper websites but it will also encounter the authors to be more creative in order to attract those people. Moreover taking the structure of the Google search engine and the Page Rank system, it can be said that in order for a website to be listed in first page of Google it requires to have an amount of back links the more back links the more chances the site will on Google first page. By disallowing the linking to news article titles it also reduces the chance the website will ever have a chance to go on first page for keywords like news. Also taking into account that Google is the getaway of the internet and if not all people using the internet visit at least once Google per day the 99% does. Not been able to be in Google news is more likely that it will do more damage than good. Since, it will be unfair for the authors to only have the readers that they already have by publishing the newspaper to their county. So taking into account that the exclusive right or reproduction exists in order to provide economic benefits to the publishers it may be as well argue here that this is not the case since their more benefits as the readers increase and expose to news monitoring services can provide this.
After examining the current situation in Europe is worth examine the US position also. In the US in order for a prima facie copyright infringement the plaintiff must show that the defendant actually copied protected elements of copyrighted work and that the product produce is substantially similar to the original work. When copying is so minor the works are not substantiality similar, the copying is de minimis and the prima facie fails . In the US it can be said the Copyright does not protect all elements of work, and therefore no all elements are considered. Copyright only protects elements of a work that demonstrate some minimal creativity. Moreover, copyright protection also extends to expression of ideas and facts, but not those ideas and facts themselves. In practice similar or identical words or phrases, without more generally qualify as de minimis and therefore no infringement can occur. This was shown in the case of CMM Cable Rep, Inc v Ocean Coast Props., Inc 97 f.3d 1504; 1519-20 (1st Cir, 1996) that no substantial similarity based on identical words describing similar radio call in competitions. But also in the case of Alberto-Culver Co. V Andrea Demon, Inc., 466 F.2d 705,711 (7th Cir. 1972) that he court denied protection to the phrase “the most personal form of deodorant”. In the US it appears that US courts would treat an eleven word fragment copied from news articles as not infringing .
It is quite clear that the approach that is taken by the US quit different however this is not only the case. The main issue however will be discussed in the follow chapter and it is about limitations and exceptions that even if the US courts consider a short sentence to infringe. Defences may apply, but this is not the case in the EU as we will see in the follow chapter
Chapter 5: Exceptions and Limitations
As we have seen from the previous Chapter the broad interpretation of the right of protection by the European Community has led to provide copyright protection to a sequence of just eleven words. It would be unthinkable not to provide some limitations and exceptions in order to protect the users. This chapter will focus as to what extend the European Community can protect not only the right holder but also the users.
The construction of exceptions ad limitations is as old as copyright itself. The Berne Convention of 1886 allowed the reproduction of newspapers or similar articles for the purpose of reporting events with a view to guarantee the freedom of the press . However copyright exceptions were not the main concern of the drafters and those that were accepted were very restricted in scope or received relatively unsystematic treatment as a result of compromises . The greatest change that the Convention would implement is at the Stockholm revision in 1967 is the text to the Convention itself as a second section to article 9 of the right of reproduction, which would assume a life of its own as the so call three-step test. Since the implementation of the three step test it has been an essential part to various treaties, European Directives and national copyright acts. Also in respect to international treaties article 15 of the Rome Convention, includes an exhaustive list of four optional exceptions, this article allows Contracting States to provide limitations on private use, the use of short excerpts in the context of report of current events, ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts, and use for educational and scientific purposes. Moreover, the adoption of the two WIPO Treaties in 1996 marked another milestone in the history of copyright. The WCT and WPPT treaties however do not make much progress towards proving further guidance on exceptions and limitations. These two so called ‘Internet Treaties’ restrict themselves to an article which reiterates in two paragraphs, the three-step test to determine the limitations and exceptions allowed. The most interesting part to be found in these two treaties is that both recognize the need to maintain a balance between the right of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention.
Article 5 of the Information Society Directive
This article provides the general European view of exceptions, which aims at safeguarding ‘a fair balance of rights and interests… between the different categories of right holders and users of protected subject-matter the existing exceptions and limitations to the rights as set out by the Member States in the light of the electronic environment’ . Recital 32 provides an exhaustive enumeration of limitations on the exclusive rights of reproduction, public communication and distribution that are harmonized in the Information Society directive and that the Members states may also provide their national copyright Acts. It is worth noting that adding or maintaining exceptions that are not included in the various lists of article 5 is not allowed . Article 5 considers having a transparent structure with five different subsections. Under article 5(1) they successively set out the only mandatory exception, under article 5(2) four optional exceptions to the reproduction right, under article (5)3 fifteen optional exceptions to the rights of reproduction and or communication to the public and under article 5(4) the possibility to apply all previous exceptions to the distribution right. The general obligation is provided by article 5(5) however that provides that all exceptions should only apply in certain special cases, which is equivalent to the tree-steps test.
Taking into account the reproduction right exceptions it requires the obligatory exception to the reproduction right for transient or incidental acts of temporary reproduction which are dictated by technology and have no separate economic significance. These exceptions should include the acts of browsing and catching. These are the only exceptions that are mandatory all other exceptions private by article 5 in respect of reproduction right are optional indicating that the EU recognizes and preserves Members states authority to govern. This decision however is not only regrettable but also remarkable in view of the observation in Recital 31 that existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright. Moreover Recital 31 acknowledges that such differences could well become more pronounced in view of further development of trans-border exploitation of works and cross border activities in order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously.
The directive has been criticized over the years that the whole system of exceptions lacks coherence . The main reason for this is firstly because of the ‘pick and choose’ that the European community applied in respect to the optional exceptions. Legislators did not seem strong enough to stand the pressure from the member states which all tries to use their own provisions. This was shown when the exceptions increased from seven in the first proposal to twenty optional in the final paper. The second issue that arises from letting members states to pick their own exceptions is that since the internet is base on a market without barriers how could this ever work when it comes to cases that the defendant plaintiff depend on different exceptions.
The first concerns in respect to the limited exceptions the European Commission took the first step with the publication of the Green Paper 2008 “Copyright in the Knowledge Economy.” It was recognized that the current frameworks do not provide protection to libraries or achieves under the exceptions of the right of reproduction. Since taking into account the act “specific cases”, it would not cover certain acts that are required for the preservation of works contained in the libraries catalogues. Also another concern is that national rules does not always clear how many copies can be made under the exceptions and on the other hand in some national law have restrictive rules with respect to the reproductions that can be made in libraries. Another concern of this paper is that people with disabilities should have the opportunity to benefit from the knowledge economy. The directive contains an exception for the benefit of people with disability even if all member states have implemented this exception, some national laws contain restricted categories of disable persons for example some countries only cover visually impaired . It is worth noting here that the signatories of this declaration call upon the European Commission, the European Parliament and Members states to take this Declaration into account and engage in policy and norm-setting on copyright exceptions in order to harmonize Exceptions across Europe.
Taking into account the cases of Meltwater and Infopaq shows that once more exceptions are not a priority for the European legislators. When the court considered the scope and meaning of article 5(1) of the Information society Directive in the case of Infopaq, it made it clear that exceptions set out within Article 5 of the directive must be strictly interpreted. Under article 5(3)(d) which underpins s.20(1) of the CDPA, allows quotation for purposes such as criticism or review “provided that they relate to a work or other subject-matter, this reinforce the point that any form of parody dislocated from a work cannot be accommodated under s.30(1). Secondly, the requirement within s.30(1) that use of a work for the purpose of criticism or review must be accompanied by sufficient judgment. Under s.178 “sufficient acknowledgment” requires “an acknowledgment identifying the work in question by its title or other description, and identifying the author. ” Spencer in his view indicated that it will remain a question as to whether many parodies would contain “sufficient acknowledgment” to qualify for protection under this section. Therefore is quite clear that the defence of parody is more likely to fail under the directive. In the cases of parody the right interferes with the economic exploitation of the work since in case of parodies there two principles, that it would either impact the original work negative or positive. However whatever the case it will still give to the work more exposure and more benefits to right holders. Another issue that can be found in this case is the fact that it fails to exclude commercial research. The issue here is that when an author writes his work he may not know that his piece is for commercial research until someone reads it and maybe post it. Therefore the issue here is obvious since a non-commercial research can end to be commercial research and the opposite. The final issue that arises from Infopaq however is the fact that taking the example of UK courts has interpreted the fair dealing exceptions broadly, and they have repeatedly held that the terms criticism, review and current events must be interpreted liberally . Also the term of ‘a works’ has also interpreted broadly in order to include not only criticism of the style used by the author but also to extend to the philosophy or doctrine behind the work , and the decision to withdraw the work from circulation . Article 5(3)(d) of the Directive provides that exceptions for criticism or review applies to, “quotations for purposes such as criticism or review provided that they relate to a work.” Therefore if the words of the exception are to be interpreted strictly as indicated in Infopaq, then the UK courts will not be able to maintain their current generous case law.
Fair Use v Fair dealing
Another issue to consider with limitations and exceptions is the three-step test, as said above most countries have implemented the three step test by enacting copyright exceptions for specific purposes or specific classes of consumer, such as educational, library and disability exceptions. In the United States however there is an alternative approach, which allows any use of a copyright work that can be described as “fair”, considering the purpose and character of the use, the nature of the work, the amount and substantiality of the portion used, and the effects of the use upon the potential market or value of the work.
Under the US law ‘fair use” many used of copyright material can be allowed, that under specific exceptions of other countries will not have been allowed. This includes new and innovative uses of copyright works, such as the production of audio and visual collages, as well as uses such as transferring music to an mp3 player, or recording a TV show. The most important however is that it can protect business also in cases in which an internet search engine operates, by providing short excerpts from websites and thumbnail pictures.
Under the UK law is called fair dealing and it is available for the purposes of non-commercial, research, private study, criticism or review, or reporting current events. The definition of fair dealing was set out in the case of Hubbard v. Vosper which set out the following: a) the defence is not confined to published works, but can apply to the publication of unpublished works; b) fair dealing is a question of degree and must be matter of impression, with the court looking to the number and extent of quotations and extracts; c) if a defendant has the reasonable defences of fair dealing and public interest, they should not be restrained from publication by interlocutory injunction because such defendant “if he is right is entitled to publish it: and the law will not intervene to suppress freedom of speech except when its abused. ”
Taking into account the Infopaq case in the US in respect to the 11 words, the fair use factor could apply in firstly examine the degree to which the defendants work is ‘transformative’ of the original, whether it adds something to the original or uses it for different purpose or in a different manner. Short excerpts from copyrighted works tend to be more transformative than longer sections. The amount and substantiality of portion used, directly relates to brevity but is not merely quantitative. Moreover the courts consider whether the amount copied is reasonable light of the purpose and character of the use. And finally the quality copied also have an impact to the fourth fair use factor, the effect of the use on the potential market for plaintiff work, because no longer section is more likely to fulfil the market demand for the original. Taking this into account under the US short fragments of copied texts are unlikely to infringe copyright. The de minimis defence that is created by the substantial similarity requirements allows many short copies to defeat the prima facie showing of copyright infringement . It is quite clear that taking into account the rulings in the cases of Meltwater and Infopaq EU does not offer any similar defences in its copyright harmonization. The issue that arise from this finding is that, one popular view of copyright is that the purpose of exclusive rights is to maximise revenues for copyright owners such as publishers. However the real purpose as said on previous chapters is to mostly to encourage creativity and the diffusion of creative works. Therefore it can be said that copyright should not be an industrial subsidy, but a tool that will enable to access knowledge. As we have seen in the recent cases from EU it looks like copyright law gets in the way of creativity and access and results to frustrating this purpose . By increasing the restrictions as we saw above and provide protection for 11 words but at the same time excluding limitations and exceptions this can only lead to less and less information to be freely available in the public domain since the EU ruling will now even require us to pay for web news.
Another point to consider in respect of creativity many people may argue with this statement but the stats that will be provided below will not lie and this is that fair use wires creativity. The table below shows the percentage location of POD Publishers .
It quite clear from the table that the US has the more publishers whether is the fair use that help publishers creativity is something that we don’t know yet but the sure thing is that there is more creativity in the US than anywhere else.
As said above the three-step test has been implemented by the EU directive, however taking into account the Green Paper there was no reference to the three-steps test , however in the words of the Green Paper and archiving exceptions requires flexibility and creativeness. Therefore it can be said that a restrictive interpretation and application of the three step test could have a negative influence and it can be said that special attention requires when viewing it more detail .
The main issues with the three-step test are that the scope and meaning have been widely noted. There both questions as to the overall reach of the test and as to the meaning of individual elements. Another common issue with the test is that if you fail any of the steps it will invalidate an exception. Also to consider s the fact that despite the entrenched position of the three-step test with international and national copyright law, its detailed requirements still remains uncertain .
In the case of Infopaq the Advocate General examined whether the Monitoring Process met the conditions of the three-step test. The Advocate General started that the Monitoring process conflicted with the normal exploitation of the original works and it is unreasonably prejudice to legitimate interests of the right holders. He also considered that such process by Infopaq can only have a negative effect on the sales of the daily newspapers and magazines. Taking into account that special attention requires balancing the interests of right holders and users. This was not the case with the Advocate General as it heavily tilted in favour of the right holders .
Taking into account this chapter it can be said that since the European Community has broadly interpreted the exclusive rights as we seen in the previous chapter by allowing a sequence of 11 words to be protected it should have similarly broadly interpreted some exceptions also instead of interpreted them strictly. As a result to this it can be said that the balance between right holders and users has been lost in the way. Since copyright law has a priority to promote creativity exceptions should be looked again and most of all the use of the three-step test since it is unlikely to provide any exceptions under the test since it will more likely invalidated them. The lack of harmonisation of the exceptions hinders the circulation of knowledge across Europe. Also the lack of flexibility from the exceptions prevents the EU Members adapting to the changing technological environment. Moreover as indicated by the Green paper Europe requires a balance and harmonised system of exceptions that is equivalent to the 21st Century knowledge economy. Finally new technologies like monitoring make it possible to users to access quantities of knowledge and content, if the exceptions cannot support these developments can be therefore consider useless in some respects.
Chapter 6: The Future of Copyright
This chapter will focus on the aftermath of Infopaq and the future of copyright. The need for rethinking exclusive right and exceptions as we have seen in the previous chapters is one of the main concerns in this research. The concerns as he have seen have been expressed in the Green Paper however almost nothing has changed and Infopaq prove it.
C4C Brussels Event
In June this year C4C (Copyright for Creativity) held and event at the European parliament in Brussels. In this event several concerns have been heard. Boehmer noted that there is a widespread confusion between copyright and author right and this can also be seen in official EU documents. He also pointed out that creativity is a continuum, where elements of existing works are being re-sued to create new ones. In Boehner view all artist is a thief as he draws to the work of others to find inspiration. Having said that he indicated that with the current copyright regime this innovation process slows down as any use of prior work requires a licence to be concluded manually from right holders that are almost impossible to find.
Another view was from Martyn Ware that he reinforced Boehner point about the innovation process and noted that copyright has not yet manage to keep up with the technology which has made digital sampling and remixing an essential part of creative process and he also remind the participants the fundamental purpose of copyright was to promote creativity. He also indicated that now the situation copyright is consider as a barrier to creation.
Wilma Mossink highlighted the difficulties faced by universities and research institutions when trying to use an audiovisual content in e-learning material and especially in cases that only a part f work is needed and it is often requires approval. Mossink indicated the lack of exceptions for educational purposes and this is even bigger problem in cases of cross-border education because of the different rules applying in different counties. Finally Ben White indicated the problem faced by libraries and achieves in their digital preservation efforts because of the current copyright exceptions an limitations as a non mandatory option, since a lot of EU members allow only one or two digital copies, which its problematic since digital preservation requires archivists to make several copies on different servers and in different formats as formats change in relatively short periods of time .
Furthermore a recent report from Professor Ian Hargreaves, has made 10 more major recommendations to free up the restricted copyright law that obstruct innovation and economic growth in the UK. Hargreaves indicated the need of an exception designed to build into the EU framework adaptability to new technologies which would be designed to allow uses enabled by technology of works in ways which do not directly trade on creative and expressive purpose of work. Hargreaves went further in respect to the fair use rule and rejected its adoption on the fact that Google and YouTube exploited US fair use law to build their digital aggregation websites without fear of prosecution from using copyrighted content .
Taking these to account the call for copyright law changes are big, it is quite clear that the current regime there no way near to the original idea of promoting creation of works. With the recent judgments of Infopaq and Meltwater threatens to lower the threshold for infringement without considering the effect of doing so. Uses such as parody and referencing as indicated in the previous chapters are in danger of becoming infringements without the flexibility of suitable exceptions, and to have the legislature known that the legislation would have that effect then is likely that pressure would have been applied to review the exception regime . Moreover the Infopaq ruling goes beyond this for decades now no technology has changed in order to follow the law but rather is the law that changes in order to reach technology. This is not the case in Infopaq; since what Infopaq does is changing the technology in order to comply with the law by require users and services to even pay for the web news. This ruling may also not stop here since there serious concerns that the 11 words ruling will not only affect the news but probably also books in the future.
The future of copyright cannot be defined since the future of Internet is still uncertain, but obviously the law that governs us now will affect the things that will follow. As said repeatedly copyright is not meant to grant to its right holders exclusive control of their work, but rather is a bundle of rights designed to promote creativity for the public interest. In order for this to achieve it requires to take steps the sooner in respect to the exceptions, since on one hand it can be said that right holders in Europe are protected even more from the US due to the broad interpretation by the courts. However the legislators should review the exceptions in order to have a copyright regime that will promote creation and is worth noting that by applying the recommendations set out by Hargreaves it would add between 0.3% to 0.6% to the annual GDP growth .
Chapter 7: Conclusions
In conclusion it can be said firstly taking into account Chapter 2, it can be said that over the last 300 years since the Statute of Anne as new technology progress the law was adapted to accommodate new digital technologies and probably that’s one of the main reasons that we are now probably at the maximum level of technology. This was show from the time of the printer to the VCR and after on.
The last two decades since Internet born the ease, cheap and fast way of reproduction has growth dramatically as we have seen however in Chapter 3 exclusive rights provided by International Treaties but most importantly in the new Information Society Directive managed to combat back the out of control reproduction that can take place in the internet. All exclusive rights have been interpreted broadly and provide protection to almost every action on the internet that can end to copyright infringement. It can be said the European Union Members that implement the Information Society Directive can enjoy more protection than any other author in the Unites states for example.
The reproduction right which is the right that the research mostly focuses on it can be said that firstly taking into account the Infopaq case it can be said that even headlines can get protection the sequence of 11 words was enough to consider as a substantial part for the purposes of s.16(3). Infopaq has overruled the Ladbroke concept of creativity of expressing skill judgment and labour and this was show in the later case ruled by the court of appeal Meltwater. Infopaq and Meltwater indicated how far the exclusive rights go in to protect the right holders that even a small part of the original maybe protected by copyright.
Taking the amount of protection provided to the right holders it will be unfair for internet users to have some balance rights in respect to the broad protection provided to right holders. As said in Chapter 5 however this is not the case over 15 exceptions are set out in the directive and only one is mandatory making and as a result sometimes protection not be enough to protect for example people with disabilities since in some countries national law only provides protection to visual impairs. Most importantly however is the fact that the Infopaq case ruling and the lack of exceptions parody or even quoting or referencing for review cannot be excluded. Also as said Infopaq will affect commercial research also on the fact that a non-commercial research may end up to be a commercial research after for example someone reading it and decides to publish it. Another issue found in this chapter is the fact that with the implementation of the three-steps in the directive, it leaves no place for more exceptions.
The issues of the broadly interpreted exclusive rights have raise concerns to many academics and even if the first step has been taken by the Green Paper in 2008 the exceptions are yet to change though.
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