Category Archives: intellectual property

CJEU Decision on Ziggo: The Pirate Bay Communicates Works to the Public

July 6, 2017Copyright, Guest post, intellectual property, Intermediary Liabilitycjeu, communication to the public, copyright, injunctions, intermediary liability, The Pirate Baycangelopoulos

In the following piece, Christina Angelopoulos, Lecturer in Intellectual Property Law at the University of Cambridge and Associate Research Fellow at the Information Law & Policy Centre, analyses the recent decision of the CJEU in case C-610/15, Stichting Brein v Ziggo. The post was originally published on the Kluwer Copyright Blog.

On 14 June 2017, the CJEU handed down its highly anticipated decision in Case C-610/15, Stichting Brein v Ziggo. As was reported on this blog when the Advocate General’s Opinion was released, the case represents the first time that the liability proper (i.e. for damages, as opposed to mere injunctions) of an internet intermediary for copyright infringement has been considered at the European level.

The Court concluded that the intermediary in question – the peer-to-peer file-sharing website The Pirate Bay (TPB) – communicates works to the public. In the process, it has influenced the definition of direct copyright infringement in EU law and the range of actors which may be said to be engaging in it.

Background

The case arose in the Netherlands, where Stichting Brein, an anti-piracy organisation, applied to the Dutch courts for an injunction against internet access providers Ziggo and XS4ALL that would order them to block access to TPB for their customers. When the case came before it, the Dutch Supreme Court noted that the permissibility of injunctions of this kind is dependent on the correct interpretation of Article 8(3) of the InfoSoc Directive. According to this provision, Member States must ensure that copyright holders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe copyright.

The Dutch Supreme Court questioned whether the relevant ‘third party’ – in this case TPB – must be found to have committed direct copyright infringement itself before the obligation to ensure that injunctions are available to right holders can apply. As a result, what exactly TPB does became the focus of the case. As the CJEU explained, TPB is an indexer of BitTorrent files. BitTorrent is a protocol through which users can share files. In short, what TPB does is:

“[make available and manage], on the internet, a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.” [18]

The question before the court was therefore whether this activity amounts to a communication to the public and thus to copyright infringement.

[To continue reading this post on the Kluwer Copyright Blog, click here.]

Should robot artists be given copyright protection?

July 3, 2017Artificial Intelligence, Copyright, Guest post, Information law and policy, intellectual propertyAndres Guadamuz, art, robotsinfolawcentre

File 20170620 24878 9lzggx — *^Shutterstock*

In this guest post, Andres Guadamuz, (University of Sussex) explores whether robots should be awarded copyright for their creative works.

When a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt, it was something of a tease to the art world. It wasn’t a long lost painting but a new artwork generated by a computer that had analysed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn.

The computer used something called machine learning to analyse and reproduce technical and aesthetic elements in Rembrandt’s works, including lighting, colour, brush-strokes and geometric patterns. The result is a portrait produced based on the styles and motifs found in Rembrandt’s art but produced by algorithms.

This is just one example in a growing body of works generated by computers. A short novel written by a Japanese computer program in 2016 reached the second round of a national literary prize. The Google-owned artificial intelligence (AI) firm, Deep Mind, has created software that can generate music by listening to recordings. Other projects have seen computers write poems, edit photographs, and even compose a musical. Continue reading →

AG Szpunar in Stichting Brein v Ziggo: An Indirect Harmonisation of Indirect Liability?

April 6, 2017Copyright, Fundamental rights, Guest post, intellectual property, Intermediary Liabilitycjeu, copyright, intermediary liability, Netherlandsinfolawcentre

In the following piece, Christina Angelopoulos, Lecturer in Intellectual Property Law at the University of Cambridge, analyses the recent Opinion by AG Szpunar in case C-610/15, Stichting Brein v Ziggo. The post was originally published on the Kluwer Copyright Blog.

On 8 February, Advocate General Szpunar handed down his Opinion on Stichting Brein v Ziggo. The case is significant, as it represents the first time that the liability of an internet intermediary for copyright infringement will be considered by the CJEU. To date, all decisions handed down by that court on intermediary liability have instead concentrated on the related question of injunctions against intermediaries whose services are used by third parties to infringe.

Questions Referred

The case finds its origins in the Netherlands, where Stichting Brein, a Dutch anti-piracy organisation, applied for an injunctive order against internet access providers Ziggo and XS4ALL that would require them to block access for their customers to the peer-to-peer file-sharing website The Pirate Bay (TPB).

That application was upheld at first instance, but dismissed on appeal, on the grounds that, first, it is the customers of Ziggo and XS4ALL, and not TPB itself, who are the originators of the copyright infringements and, secondly, that the blocking sought would not be proportionate to the aim pursued, i.e. the effective protection of copyright.

The case eventually made it before the Hoge Raad, the Dutch Supreme Court, which decided to submit two questions to the CJEU. Essentially, these ask the following:

Does TPB, by providing a system through which metadata on protected works that are present on its users’ computers is indexed and categorised, thus enabling those users to trace, upload and download the works, engage in a communication to the public of those works for the purposes of EU copyright law?

If the answer to Question 1 is negative, may an injunction nevertheless be issued against Ziggo and XS4ALL, requiring them to block access for their customers to TPB?

It should be noted from the outset that these two questions are seen by the Dutch court as interconnected. The Hoge Raad is essentially querying whether TPB must be an infringer before access to it may be blocked.

[To continue reading this post on the Kluwer Copyright Blog, click here.]

New Study on Intermediary Liability and European Copyright Reform

April 2, 2017Copyright, European Policy, Fundamental rights, intellectual property, Intermediary Liability, PrivacyAlternative Compensation System, cjeu, copyright, digital single market, fundamental rights, online platformsinfolawcentre

Dr Christina Angelopoulos, associate research fellow at the Information Law & Policy Centre and lecturer at the University of Cambridge, has authored a study entitled ‘On Online Platforms and the Commission’s New Proposal for a Directive on Copyright in the Digital Single Market’.

The study, commissioned by MEP Julia Reda, evaluates the provisions of the European Commission’s Proposal of 14 September 2016 for a Directive on Copyright in the Digital Single Market that are relevant to the issue of intermediary liability.

The study concludes that key elements of these provisions are incompatible with existing EU directives, as well as with the Charter of Fundamental Rights of the EU.

In particular, the study suggests that the Proposal misinterprets EU copyright and related rights law by implying that intermediaries that allow users to host content in a public manner are themselves performing an act of communication to the public. The study argues that acts of facilitation of third party copyright infringement are instead the rightful domain, not of primary, but of accessory liability, an area of copyright and related rights law that has not yet been harmonised at the EU level.

Continue reading →

Call for papers: Critical Research in Information Law

March 1, 2017Artificial Intelligence, Call for papers, Data Protection, Events, Freedom of expression, Freedom of Information, Fundamental rights, Information law and policy, intellectual property, Intermediary Liability, News media, SurveillanceAI, blockchain, data, data protection, fake news, freedom of information, intellectual property, intermediary liability, net neutrality, news media, privacy, robotics, surveillanceinfolawcentre

Deadline 15 March 2017

The Information Law Group at the University of Sussex is pleased to announce its annual PhD and Work in Progress Workshop on 3 May 2017. The workshop, chaired by Professor Chris Marsden, will provide doctoral students with an opportunity to discuss current research and receive feedback from senior scholars in a highly focused, informal environment. The event will be held in conjunction with the Work in Progress Workshop on digital intermediary law.

We encourage original contributions critically approaching current information law and policy issues, with particular attention on the peculiarities of information law as a field of research. Topics of interest include:

internet intermediary liability
net neutrality and media regulation
surveillance and data regulation
3D printing
the EU General Data Protection Regulation
blockchain technology
algorithmic/AI/robotic regulation
Platform neutrality, ‘fake news’ and ‘anti-extremism’ policy.

How to apply: Please send an abstract of 500 words and brief biographical information to Dr Nicolo Zingales by 15 March 2017. Applicants will be informed by 30 March 2017 if selected. Submission of draft papers by selected applicants is encouraged, but not required.

Logistics: 11am-1pm 3 May in the Moot Room, Freeman Building, University of Sussex.

Afternoon Workshop: all PhD attendees are registered to attend the afternoon workshop 2pm-5.30pm F22 without charge (program me here).

Financial Support: Information Law Group can repay economy class rail fares within the UK. Please inform the organizers if you need financial assistance.

The Competence of the European Union in Copyright Lawmaking

November 30, 2016Copyright, European Policy, Events, IALS, intellectual propertycopyright, EU law, events, ials, intellectual propertyinfolawcentre

Book launch event at the IALS
6pm – 8pm, 15 Dec 2016

Register online at Eventbrite to book your free ticket

Speaker: Dr Ana Ramalho, Assistant Professor of Intellectual Property, Maastricht University

Discussant: Professor Lionel Bently, Herchel Smith Professor of Intellectual Property and Director of the Centre for Intellectual Property and Information Law, University of Cambridge.

In this seminar Ana Ramalho will discuss her new book, which inquires into the competence of the EU to legislate in the field of copyright and uses content analysis techniques to demonstrate the existence of a normative gap in copyright lawmaking.

To address that gap Ana Ramalho proposes the creation of benchmarks of legislative activity, reasoning that EU secondary legislation, such as directives and regulations, should be based on higher sources of law.

In the book she investigates two such possible sources: the activity of the EU Court of Justice in the pre-legislative era and the EU treaties. From these sources Ana Ramalho establishes concrete benchmarks of legislative activity, which she then tests by applying them to current EU copyright legislation.

This provides examples of good and bad practices in copyright lawmaking and also shows how the benchmarks could be implemented in copyright legislation. Finally, Ana Ramalho offers some recommendations in this regard.

This seminar will be followed by the book launch of “The Competence of the European Union in Copyright Lawmaking: A Normative Perspective of EU Powers for Copyright Harmonization” by Ana Ramalho

EU Copyright Reform: Outside the Safe Harbours, Intermediary Liability Capsizes into Incoherence

October 6, 2016European Policy, Fundamental rights, intellectual property, Intermediary Liabilitycommunication to the public, enforcement, EU copyright reform, fair balance, filtering, hosting intermediaries, intermediary liability, kluwer copyright blog, safe harboursinfolawcentre

In the following piece, Christina Angelopoulos, lecturer in intellectual property law at the University of Cambridge, analyses the aspects of the Commission’s new proposal for the digital single market directive that are relevant to intermediary liability. The post was originally published on the Kluwer Copyright Blog.

As has by now been extensively reported, on 14th September the European Commission released its new copyright reform package. Prominent within this is its proposal for a new Directive on Copyright in the Digital Single Market.

The proposal contains an array of controversial offerings, but from the perspective of this intermediary liability blogger, the most interesting provision is the proposed Article 13 on ‘Certain uses of protected content by online services’. This is highly problematic in a number of different ways.

The Supposed Problem

As the Communication on a fair, efficient and co mpetitive European copyright-based economy in the Digital Single Market (which was released in parallel to the proposal) explains, the new Article 13 is intended to address what in Brussels parlance over the past year has come to be termed the ‘value gap’. This refers to the idea that revenues generated from the online use of copyright-protected content are being unfairly distributed between the different players in the value chain of online publishing. A distinction is usually drawn in this regard between ad-funded platforms, such as YouTube, Dailymotion and Vimeo, and subscription-funded platforms, such as Spotify or Netflix. While the latter require the consent of copyright-holders to operate legally, the business model of the former revolves around user-created content (UCC). As a result, they tend to focus not on copyright licensing, but on notice-and-takedown systems, which allow them to tackle any unwanted infringements of copyright snuck onto their websites by their users. [To continue reading this post on the Kluwer Copyright Blog, click here.]

C-494/15 – Tommy Hilfiger: No Difference between Online and Real World Marketplaces for IP Enforcement

August 11, 2016Fundamental rights, intellectual property, Intermediary Liability, Trade marksenforcement, fair balance, injunctions, intermediary liability, kluwer copyright blog, physical marketplaces, proportionality, tommy hilfiger, trade marksinfolawcentre

In the following piece, Christina Angelopoulos, post-doc researcher at the Information Law and Policy Centre of the University of London, analyses the recent judgment of the CJEU in case C-494/15 Tommy Hilfiger. The post was originally published on the Kluwer Copyright Blog.

On 7 July 2016, the CJEU (Court of Justice of the European Union) handed down its decision in Tommy Hilfiger (case C-494/15). The case concerned the imposition of an injunction on Delta Center, a company that sublets sales areas in the “Prague Market Halls” (Pražská tržnice) to traders, after it was found that counterfeit goods were sold in the marketplace.

The requested injunction would require that Delta Center refrain from: a) renting space to persons previously found by the courts to have engaged in trademark infringement; b) include terms in their rental contracts that oblige market traders to refrain from infringement; and c) publish an apology for past infringements by third party traders. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]

The socio-legal aspects of 3D printing: Between “chaos” and “control”

July 13, 2016Books, Copyright, Information law and policy, intellectual property, Intermediary Liability, Research, Uncategorized3D printing, copyright, Dr Angela Daly, Dr Dinusha Mendis, intellectual property, post-control, post-scarcity, technologydanielbennett

Not so long ago 3D printing was being discussed alongside the internet, file sharing and digital currencies as a sign of the beginning of an era of post-control and post-scarcity.

There were fears that governments would struggle to regulate the activities of a new generation of “prosumers” (producer-consumers) and that economic and legal certainties would be challenged by an increase in the decentralised “free” supply of goods.

Last night, at the Information Law and Policy Centre, Dr Angela Daly and Dr Dinusha Mendis presented a more nuanced view of the prospects of 3D printing as a “disruptive” technology to mark the launch of Daly’s new book, Socio-Legal Aspects of the 3D Printing Revolution.

Daly, a research fellow at Queensland University of Technology Faculty of Law, shared findings from postdoctoral research at the Swinburne University of Technology considering the legal aspects of 3D printing from the standpoint of the US, UK-EU and Australian legal systems.

Daly’s transnational lens enabled her to identify a number of divergent legal approaches to 3D printing in relation to exceptions to infringement, intermediary liability, copyright and DMCA takedowns.

She found that the legal implications of 3D printing were hard to generalise despite attempts at the harmonisation of international law. More often the legal status of 3D printing was both nationally and scenario specific. To this end, Daly noted that it would also be interesting to research how legal jurisdictions in emerging economies were tackling 3D printing.

Focussing particularly on the potential problems created for Intellectual Property law by 3D printing, Daly concluded that the technology was neither leading to “total chaos” nor “total control”.

She highlighted that 3D printing has not yet become a mainstream practice – despite entry level 3D printers selling for around £500, far fewer people own one than they do a smartphone or computer. Daly also emphasised that incumbent businesses and companies are incorporating 3D printing into their business models.

She stated, therefore, that although there was some chaos around the edges – such as the ability for people to print 3D guns – the overall picture was that from a socio-legal perspective the technology was not currently particularly ‘disruptive’.

Daly’s position was reinforced by a presentation from Dr Dinusha Mendis, Co-Director of the Centre for Intellectual Property Policy and Management (CIPPM) at Bournemouth University. Mendis has conducted research on the Intellectual Property and Copyright implications of 3D printing including work which was commissioned by the UK government’s Intellectual Property Office.

Of fundamental concern here is the potential illegal copying and use of the computer-aided design (CAD) files required to print objects in 3D. Her research identified hundreds of online platforms for the distribution of 3D printing files which were providing access to hundreds of thousands of designs.

Mendis’ research into online platforms reveals that interest in 3D printing has grown immensely between 2008 and 2014, but she identified limitations to the spread of the practice.

Potential users do not always have access to the right materials, funds to be able to purchase more sophisticated printers or the legal knowledge to license their work. Moreover, companies and businesses in this field informed her that there was currently little commercial impact on either automotive or domestic products. They predicted that 3D printing would remain limited for the next five to ten years.

For both Mendis and Daly, then, 3D printing has not yet lived up to initial hype over its ‘disruptive’ potential. Mendis recommended a ‘wait and see’ approach to UK government, concerned that legislating too hastily in this area might stifle creativity.

Nevertheless, as 3D printing technology improves and becomes cheaper, it might become the focus of increasing interest for legal scholars in the future.

Further Reading

A. Daly (2016) Socio-Legal Aspects of the 3D Printing Revolution, Palgrave MacMillan: UK
D. Mendis (2015) A Legal and Empirical Study into the Intellectual Property Implications of 3D Printing.
D. Mendis (2014) “Clone Wars”: Episode II – The Next Generation: The Copyright Implications relating to 3D Printing and Computer-Aided Design (CAD) Files. Law, Innovation and Technology, 6 (2), 265-281.
D. Mendis (2013) ‘The Clone Wars’ – Episode 1: The Rise of 3D Printing and its Implications for Intellectual Property Law – Learning Lessons from the Past?, European Intellectual Property Review, 35 (3), 155-169.