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

German Court Says Creative Commons 'Non-Commercial' Licenses Must Be Purely For Personal Use

from the YMMV dept

Creative Commons licenses have been hugely successful in allowing people to share their creations in ways otherwise impossible using traditional copyright monopolies. But one problem remains unresolved: what exactly does the "non-commercial" license allow you to do? This lack of clarity has led various people to advocate avoiding the use of CC-NC. Back in 2012, Techdirt reported on a call to drop completely both the non-commercial and the no-derivatives licenses. In the same year, a group of German copyright experts released in collaboration with Wikimedia a document entitled "Consequences, Risks, and side-effects of the license module Non-Commercial -- NC", which was made available in an English translation the following year (PDF).

Now a German court has weighed in on the subject, with interesting results (original in German.) The case concerned the use of a photo from Flickr, released under a CC-BY-NC license. The photo appeared on the Web site of Deutschlandradio, part of the German public broadcaster -- a non-commercial organization, that is. Alongside the photo, Deutschlandradio's Web site included the name of the artist, the license, and a link to its terms. Despite this, the photographer demanded 310 Euros plus costs on the grounds that Deutschlandradio had used the photo for commercial purposes.

The public broadcaster pointed out that there was no charge for its Web site, there was no advertising, and no sponsorship. Nonetheless, the judge agreed it should be treated as a commercial use. In coming to this view, the judge drew on German law, which defined "non-commercial" as purely for personal use, and excluded all commercial use in the "generally accepted sense", and that apparently included radio stations, irrespective of how they were funded.

As this underlines, quite what "non-commercial" means is likely to vary from country to country, and possibly even judge to judge. Yet another reason to avoid using CC-BY-NC altogether.

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Filed Under: copyright, creative commons, germany, non-commercial, personal use

Copyright Reform Process Begins Down Under... And They're Actually Asking Good Questions

from the they-did-what-now? dept

Australia's been an interesting country to follow on the copyright front. In terms of court decisions, there have been some good ones and some awful ones. On the lawmaking front, we've seen ridiculous ideas floated and good ones as well. The current regime is, unfortunately, supporting some of the bad parts of the TPP, but the Australian Parliament has argued for rejecting ACTA. All in all, it's a mixed bag.

However, Australia is about to undergo a copyright reform process, with the Australian Law Reform Commission focusing on how copyright reform should work in the digital economy, and releasing a very encouraging set of questions that it is seeking to answer as a part of the process. Unlike the typical "and just how awesome is copyright?" type of questions we see in some other places, the ALRC's questions raise many of the key issues -- noting that copyright law absolutely has an impact on the introduction of new and innovative business models and that it "imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material."

Furthermore, it has some specifics that show whoever put together the questions has a pretty deep understanding of some of the key upcoming issues, including how copyright law should handle things like caching and cloud computing. There's a push among copyright holders to change or clarify laws to say that temporary or cached copies can violate copyright, but that that leads to some serious problems for all sorts of online activities. Some of the ALRC's questions show a recognition of the potential problem:

Question 3. What kinds of internet-related functions, for example caching and indexing, are being impeded by Australia’s copyright law?

Question 4. Should the Copyright Act 1968 (Cth) be amended to provide for one or more exceptions for the use of copyright material for caching, indexing or other uses related to the functioning of the internet? If so, how should such exceptions be framed?

Question 5. Is Australian copyright law impeding the development or delivery of cloud computing services?

Question 6. Should exceptions in the Copyright Act 1968 (Cth) be amended, or new exceptions created, to account for new cloud computing services, and if so, how?

There's also a whole series of questions looking at how private copying should be dealt with, as well as "online use for social, private or domestic purposes." A few more of the questions:

Question 7. Should the copying of legally acquired copyright material, including broadcast material, for private and domestic use be more freely permitted?

Question 11. How are copyright materials being used for social, private or domestic purposes—for example, in social networking contexts?

Question 12. Should some online uses of copyright materials for social, private or domestic purposes be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that such use of copyright materials does not constitute an infringement of copyright? If so, how should such an exception be framed?

The questions even specifically call out how samples, remixes and mashups should be handled. I doubt that the majority of US politicians even know what any of those three things are.

Furthermore, the questions explore known issues with copyright law today, such as how to deal with libraries, archives and orphan works (though we still think they should be referred to as hostage works). Towards the end, there are a whole bunch of questions around fair dealing (what Australia currently has) and fair use. They specifically ask if Australia should switch from fair dealing -- with its specific exceptions to copyright law -- to fair use, with its much more broad and flexible look at whether or not uses should be allowed without permission.

Who knows how this will turn out in the long run, but from a starting point, it certainly looks like the ALRC is actually asking a lot of the right questions, rather than trodding down the well-worn path of simply expanding copyright law over and over again. Of course, the really tragic part is that if Australia does sign onto ACTA and the TPP, they may not be able to make many of the changes suggested by these questions. That's one of the major concerns with both agreements. They lock governments into certain ways that copyright law must act, and it wouldn't allow the kinds of exceptions that these kinds of questions would likely lead to. That's one of the reasons why we're so worried about both agreements. They don't necessarily change the laws today in some places (in others, they make some changes), but the real problem is they lock in clearly broken parts of the system and make it impossible for them to evolve. Clearly some people in Australia recognize the problems with copyright law in the digital age -- but ACTA and TPP might limit their ability to fix those problems.

Filed Under: australia, cloud computing, copyright, copyright reform, fair dealing, fair use, personal use

Another Court Ruling In Spain Finds Personal File Sharing To Be Legal

from the no-profit-motive dept

While the entertainment industry has been working over time to try to stop file sharing in Spain, court ruling after court ruling has found that personal file sharing is perfectly reasonable and legal -- and that sites that merely link to content rather than host it (i.e., search engines and trackers) aren't breaking copyright law either. In the latest such case, a judge found that a guy who downloaded and shared over 3,000 movies wasn't violating copyright law, because it was all for personal use with no intent to profit.

Filed Under: file sharing, legality, personal use, spain

When Life And Work Blend, Everything Is Commercial Use

from the welcome-to-the-way-we-live dept

I was recently having a talk with a friend who was trying to determine what to do next with his life. He's not happy with his job and wants a "goal" for the future -- but isn't really sure what he wants to do. I suggested focusing on a hobby in the short term and devoting plenty of time to it. He felt that was the wrong approach, because a hobby is separate from a job, and the two would never connect. While that could happen, the internet today has made it increasingly easy to turn a hobby into a job in some way or another. It's not that you need to turn a hobby into a job. Sometimes it's good for a hobby to just be a hobby. But, if you focus on what you're passionate about, I think eventually different job opportunities start to come to you.

But it's this blurring of "personal" and "work" lives that again has me pondering if there really is a meaningful distinction between "commercial use" and "non-commercial use." Some of this debate first came about years ago, when some web publishers claimed that their RSS feeds were "for non-commercial use only," but what does that mean? If I read your site as part of my job, have I violated that rule? If I learn information from your feed that allows me to make money, have I violated that rule? More recently, there have been proposals to separate copyright violations, such that "non-commercial use" is allowed. But, again, you quickly run into very questionable scenarios. If my personal blog has Google AdSense on it, is it commercial use? If I end up getting a job because of my "personal use" of your content, does it suddenly morph into "commercial use"? The questions get more and more confusing, and the mess would make less and less sense.

These days, it seems that the distinction between personal, professional, commercial and non-commercial are becoming increasingly meaningless -- and that's not a bad thing.

With that said, I have to agree with Gordon Haff over at News.com that Creative Commons is making a mistake in trying to better define the meaning of "commercial use" for its "non-commercial" licenses. I'm already struggling with its current definition. I'm working on a presentation for a conference I'm attending next month, and found some images that are under a CC license that allows non-commercial use. I'm not getting paid for the talk itself, but I am doing it as a representative of Techdirt, which is a commercial entity. Is that commercial use? The presentation isn't about our business, though, but about what I usually write about here. Is that non-commercial use? I'm assuming it's non-commercial use, but these days, I have a hard time understanding what the difference is at all, and Haff is right that it's likely to lead to more confusion. The real answer is to simplify CC licenses, not make them even more complex.

Filed Under: commercial use, copyright, creative commons, personal use

What If Copyright Only Applied To Commercial Use?

from the a-step-forward dept

Earlier this week, we wrote about the Cato Institute's new series on the Future of Copyright, with a wonderful first post about just how broken copyright has become, written by Rasmus Fleischer. Our own Timothy Lee has now penned the second piece in the series, wondering if a middle ground would be to just focus copyright laws on commercial use, and allow people to make use of copyrighted content for personal use. As he notes, throughout most of history, copyright laws really only did apply to commercial use, in part because personal use wasn't even an issue.

Lee notes the inevitable trend towards having the music industry embrace things like file sharing in one way or another, suggesting that having copyright laws just forbid commercial exploitation wouldn't hurt the industry at all -- since most of the business models they're finally embracing route around the personal copying issue -- and would stop criminalizing people who are going to get access to content anyway. As per usual with Lee's writing, it's a great, well-reasoned, thought-provoking write up. Go read the whole thing.

However, while I agree that limiting copyright just to commercial use would be a step in the right direction, I'm still not convinced that the restrictions are necessary even for commercial use. Part of the problem is that the distinction between "personal use" and "commercial use" is extremely blurry. Is my personal blog "personal" or "commercial" if I put Google ads on it? What if I don't have ads, but use it to get a job or promote my company? Commercial use and personal use are not clear cut.

On top of that, if someone else is able to do something commercially valuable with my content, why should that be a problem? If anything, that should be encouraged -- and the end result will often be that it makes the original content more valuable. Google uses fair use defenses to protect itself from copyright infringement charges, but it's ridiculous to think that anyone is even complaining, since Google makes their content easier to find. And Google is most certainly a commercial entity. Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway. Yes, some of the benefit will flow to the commercial entity, and some of the benefit may flow to others -- but these are positive externalities, as plenty of benefit will flow back to the original creator as well. Once you realize that these commercial uses are likely to expand the overall market, you want to get any obstacles out of the way, even if some others might benefit as well. Sticking an artificial construct like copyright in the middle just doesn't seem necessary, and actually makes the process less efficient. Imagine if Google needed to get permission from everyone before indexing their sites?

Lee suggests that without copyright law on commercial use, you would have a free rider problem, but that's not necessarily true. Companies that pick up business models that turn the free rider problem into a benefit won't have much of an issue. Issues about "counterfeiting" can be taken care of by anti-fraud laws, rather than copyright, and there will still be plenty of value in "authentic" versions of content and other forms of scarce goods connected to the content creator (access, live performance, new content creation, etc.). So, I agree that legalizing personal use is a sensible step, but I'm still not convinced that copyright even makes sense for commercial reasons.

Filed Under: commercial use, copyright, personal use