EU Advocate General Declares That Hotels Don't Need To Pay Copyright License To Have In-Room Television

from the oh-ok dept

We've seen all manner of silly claims by copyright licensing groups as to what requires what kind of license in every kind of circumstance. These licensing groups have gone after children's charities. A UK collection society had the strategy of calling up local businesses and demanding payments should they hear music playing in the background. The Author's Guild once claimed that reading a book out loud constituted the need for a separate license, while ASCAP asserted with a straight face that the ring of a mobile phone was a public performance. This panoply of idiocy might be funny, except for the very real harm done through this kind of harassment.

Even the good stories in this vein weigh heavily in that they are necessary at all. For instance, the advocate general for the EU's Court of Justice recently wrote an opinion advising that hotels didn't need a copyright license just to have televisions within guest rooms. It's a good ruling, but conjures the frustrating question as to why it was needed in the first place. The answer, of course, is because a collection group was attempting to collect from hotels for just that reason.

On Monday, Court of Justice of the European Union advocate general Maciej Szpunar published his opinion on a case brought by the Verwertungsgesellschaft Rundfunk, a royalty collecting and copyright management company comparable to the BPI in the UK or MPAA in the US. The collecting company had asked a local court to force a hotel to pay extra licensing fees because guests were watching TV in their rooms. Vienna's Commercial Court, in its turn, sought guidance from the CJEU on how EU copyright law should be interpreted in this case.

At issue in this case was an EU directive on rental and lending rights, which affords broadcasters the right to allow or not allow the rebroadcasting of their content to the public. Specifically, the law states that this right applies only when an entrance fee to view such content is levied by the rebroadcaster. What the collection society argued was that hotels were levying such a fee, because it included televisions in rooms for which they were charging guests. That isn't remotely how the law was supposed to be applied.

But Verwertungsgesellschaft Rundfunk made the argument anyway, because facts and truth have no place in the realm of a collection society, where the only goal is to seek as much rent as possible in every circumstance, while providing as little value as possible. Again, it's a good opinion, but it's not a ruling in the case. That ruling will be taken up by the other justices on the court and they will take Szpunar's opinion on the matter into account. The general feeling appears to be that the court will side with Szpunar's opinion, which is also good.

But all I can think about is why is this necessary to begin with?

Filed Under: advocate general, cjeu, copyright, court of justice, eu, hotel rooms, hotels, licenses, public performance
Companies: verwertungsgesellschaft rundfunk

Terrible Ruling: EU Decides That Mere Links Can Be Direct Infringement

from the that's-not-how-this-works dept

Last year, we talked about an important copyright case in the EU regarding whether or not linking to infringing material was, in itself, infringing. The case involved a blogger in the Netherlands, Geen Stijl News ("GS Media") linking to some pre-publication Playboy photos. There had been an earlier case, the Svensson case where the European Court of Justice got things right with regards to whether or not hyperlinks could be infringing, but there were some questions left open in that ruling. The court in the Svensson case found that linking to authorized content wasn't infringing. But what about unauthorized content?

And now we have the ruling and it's not very good. Some are trying to spin it as a good ruling, because it basically says that if the link is not for profit, then it's not infringing, but the worrisome part is that if the link is considered "for profit" then it can be direct infringement. Basically, the court tries to split the baby here. It notes concerns that many people had about how posting a mere link to content could be infringement, in that many times those posting the link will have no idea if the original content is authorized. But rather than actually deal with that specific issue, it just basically said "well, if it's a for profit effort, then they can afford to figure out if the content is authorized."

when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.

Some are celebrating the flip side, which says that if the linking is not for profit and without knowledge that the work is infringing, then it's not infringing, but even that is troubling. Here's what the court says for the "not for profit" linking:

For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.

Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention.

But what the hell does all that mean in practice? Well, that's a complete mess. First of all, as we've been discussing for many, many, many years, drawing the line between "commercial" and "non-commercial" is not nearly as easy as it seems -- and it's basically the same for "for profit" and "not for profit" in the EU's new standard. Just last week we wrote about yet another legal dispute over that exact fuzzy boundary. In an age where anyone can put ads on their site, or use social media to promote their own work or business, how do you determine what's for profit? It's not hard to see how a copyright holder may, for example, point to someone linking to an unauthorized copy of their work and then point to a tweet promoting their work, and say that "well this person uses social media for profit, so this link is infringing."

And, of course, it's even worse for aggregators, search engines and the media. All of those will be considered for profit, so any link to infringing content may now be considered infringing itself. That's... really bad for the internet in Europe. You can see why the Court of Justice tried to split the baby here, but you should remember that splitting the baby isn't a good result. It's designed to threaten to kill the baby to flush out a better result. In this case, one hopes that the end result of this dangerous ruling will flush out an improved copyright law in the EU that doesn't make links infringing. Instead, we seem likely to be getting the exact opposite.

Filed Under: cjeu, commercial, copyright, court of justice, eu, eucj, for profit, linking, noncommercial, not for profit
Companies: geen stijl, gs media, playboy, sanoma

Important Judgment From Top EU Court Confirms Copyright Levies Are An Unworkable Mess

from the time-to-put-it-out-of-its-misery dept

Europe's use of the copyright levy system, effectively a tax on blank media that is supposed to compensate copyright holders for an alleged "loss" from copies made for personal use, has produced a whole string of messy situations -- for example, in the Netherlands, Portugal, Spain and the UK. These have come about as governments have tried reconcile an antiquated system originally designed for cassette tapes with modern digital technologies. The EU's highest court, the Court of Justice of the European Union (CJEU), has just handed down an important judgment in this area. The IP Kat blog explains the background:

Finland-based Nokia sold mobile phones to business customers in Denmark, who resold them to both individuals and business customers.

Whilst all Nokia phones have an internal memory (i.e. the storage device is non-detachable), certain models have an additional memory card (i.e. which is detachable).

On these detachable memory cards, users could store data (e.g. contact details, photographs) as well as files containing audiovisual works (e.g. music, films which may have been downloaded from the web or from DVDs, CDs, MP3 players etc).

In this regard, these memory cards are "multifunctional media" with the capacity to be used for private copying (in relation to the audiovisual files), as well as for uses unrelated to private copying (e.g. storing personal data).

Nokia disputed its liability to pay a private copying levy to the Danish collecting society, Copydan Båndkopi, in relation to the detachable memory cards that were imported into Denmark for use in its mobile phones between 2004 and 2009.

That gives an idea of just how complicated the issues raised by copyright levies have become. The IP Kat blog goes on to analyze the CJEU's reply to six questions that were referred to it by a court in Denmark, seeking clarification. The answers are as complicated as the issues, so you may prefer this alternative summary from Hogan Lovells's Global Media and Communications Watch blog:

The CJEU takes the view that, in principle, it is irrelevant whether a medium is unifunctional or multifunctional. Copyright levies may be imposed, if at least one function allows for private copying, even if this function is of ancillary nature. However, the primary function of the carrier is to be taken into account whilst assessing what might be a fair compensation. Member States may further distinguish between storage media which is detachable (like in Nokia's case) and media which is non-detachably integrated in a device. However, the differentiation must be reasonably justified.

Actually, it's not as simple as that, because there's another issue that needs to be addressed:

A particular problem exists where storage media is sold to business customers without a clear picture of whether those are sold on to private individuals only or also to business customers. The latter do not fall under the private copying exemption and hence the compensation requirement does not apply (see: CJEU, Case Ref.: C-467/08). Manufacturers and importers may also be required to pay copyright levies. However, this is only justified if practical difficulties ask for such regulation. Those may arise from, for instance, the impossibility of or at least practical severity associated with identifying the final users of the relevant medium. Further, adequate exemption schemes must be in place allowing manufacturers and importers to prove that Article 5(2)(b) of Directive 2001/29 and thereby the private copying exception does not apply to their sales.

Even that is not the end of it: the blog post goes on to discuss some of the other detailed issues raised by the CJEU's ruling. However, it is relatively simple to summarize the entire judgment in a single sentence: that the EU's copyright levies are a complex, unworkable mess, and should be abolished completely across the whole of Europe, as has already happened in some of the more sensible EU Member States.

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Filed Under: cjeu, copyright, copyright levies, court of justice, denmark, eu, eucj, personal use, you must be a pirate
Companies: nokia

Data Retention Directive Incompatible With Fundamental Rights According To EU Court Of Justice's Advocate General

from the not-quite-what-we'd-hoped-for dept

Almost exactly a year ago, we wrote about two important cases before Europe's highest court, the Court of Justice of the European Union (ECJ). They both involved the European Union's Data Retention Directive, which obliges telecoms companies to retain metadata about their customers -- now an even more contentious issue in the wake of Edward Snowden's leaks. One case was from Ireland, brought by Digital Rights Ireland, which needs donations to carry on its great work, and the other from the Austrian digital rights group AKVorrat (which probably also needs support.)

As is usual, before the ECJ makes its ruling, the court's Advocate General offers an opinion. It's not binding, but it's generally taken into account, and is often indicative of how the court will find. Here's what the Advocate General has just published:

In his Opinion delivered today, Advocate General Pedro Cruz Villalón, takes the view that the Data Retention Directive is as a whole incompatible with the requirement, laid down by the Charter of Fundamental Rights of the European Union, that any limitation on the exercise of a fundamental right must be provided for by law. According to the Advocate General, the Directive constitutes a serious interference with the fundamental right of citizens to privacy, by laying down an obligation on the providers of telephone or electronic communications services to collect and retain traffic and location data for such communications.

Specifically, he says that from the retained data it is possible to create a detailed and thus intrusive picture of someone's private life, and also notes that by storing this information, there is an increased risk it will fall into the wrong hands, causing damage to the privacy of the person concerned. Because of the seriousness of its incompatibility with fundamental European rights, the Directive should have spelt out key details, rather than leaving it to the Member States of the EU to interpret the rules as they thought best. He also found that:

the Data Retention Directive is incompatible with the principle of proportionality in that it requires Member States to ensure that the data are retained for a period whose upper limit is set at two years.

According to the Advocate General, there is no reason why the upper limit should not be set at just one year. Unfortunately, despite these serious flaws, he did not suggest that the Directive should be rescinded. Instead:

the Advocate General proposes, after weighing up the various competing interests, that the effects of a finding that the Directive is invalid should be suspended pending adoption by the EU legislature of the measures necessary to remedy the invalidity found to exist, but such measures must be adopted within a reasonable period.

In other words, the Advocate General seems to think the problems are fixable, provided the EU adopts suitable measures to address the issues he has raised.

That makes the current opinion something of a mixed bag. On the plus side, it has clearly found that the Data Retention Directive in its present form is incompatible with fundamental European rights; but against that, the Advocate General not only suggested that the problems could be rectified, but even explained how that might be achieved.

The full Opinion is, of course, much more complex than the rough summary above, and experts will argue over what the details might mean for data retention in Europe. In any case, what counts is the final judgement of the ECJ, which may have views that differ from the Advocate General's Opinion in important ways. At least we are now closer to finding out.

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Filed Under: court of justice, data retention, ecj, eu, fundamental rights, privacy