The Pirate Party was founded in Sweden in 2006 to deal with two of the foremost issues still causing much controversy in the transformation from an industrial to a digital society: file-sharing and copyright issues, and privacy and surveillance, as well as one less contentious issue: the problems of patent law. More than ten years down the line, neither of these topics seem even close to resolution and new uncertainties loom at the horizon. In the absence of domestic EU video-on-demand platforms, is the answer a quota for EU films on existing foreign platforms? Is the "perhaps"-attitude to privacy by default an homage to the Swedish social-democratic tradition of finding the middle ground? And what will happen with the English-language requirement in the Unitary Patent laws? On top of already existing controversies of information ownership, new topics loom at the horizon: if you make coffee in your own coffee machine in your own house to treat your friends, does the information generated by your coffee machine belong to you or to the manufacturer of the machine? All of these issues, and more, seek answers from member state and European politicians, but are they moving closer to a resolution?
The EU copyright reforms and the Proposed Directive on Copyright in the Digital Single Market
The European Union is currently undertaking a review of its copyright laws. The European Commission has, in the context of its Digital Single Market (DSM) Strategy, launched two sets of legislative proposals which impact copyright and the delivery of copyright-protected works. One set of legislative proposals aims to improve cross-border portability of online content services, such as music or TV subscription services, to enable customers of such services in one country to access them when they travel in other EU countries.
The other set of legislative proposals, one for a regulation on TV and radio broadcasting and the other for a directive on copyright, aims to modernise the EU copyright framework. The Proposed Directive on Copyright in the DSM (COM(2016) 593 final) will be the main focus for this paper as it is both wide ranging and controversial, tackling topics such as exceptions and limitations, out-of-commerce works, fair remuneration for authors and performers, the creation of a new right for press publishers or the potential revision of the liability regime for internet intermediaries.
This paper will assess the merits and limits of the proposed directive currently being discussed in the European institutions with a particular focus on the questions of the ancillary right for press publishers and of the new obligations for online service providers.
Patent law is a primary and obvious candidate for the great regionalisation efforts known as building the European Single Market. However, the emergence of a genuine European community patent system is infamous as a difficult endeavour. Efforts span decades characterised by slow and limited progress. Despite the highest backing and the brightest public officials tasked to find technical solutions, we reached rather unusual, provisional legal and institutional arrangements. As the controversial substantive issues in the field of biological matters and program for computers have demonstrated, the patent law tends to spark broad and tense debates when discussed beyond the professional circles of mere technocratic governance. As a consequence, the patent system kept a distance from the ordinary legislative process, aimed to get specialised judiciaries staffed with "technical" judges and shielded itself from democratic scrutiny. Mere academic concerns about the patent systems such as an alleged lack of independence of the European Patent Organisation's Boards of Appeal recently turned out to be full spot on. The Brexit puts additional technical challenges on patent governance in Europe. As multiple Single Market policy fields are deeply intertwined with patenting, solving the institutional question remains pivotal. This talk will take a step back and deliberate on how to get the patent system right.
Setting legitimate boundaries to copyright:
copyright exceptions and limitations in the winds of change
Rihards Gulbis, Ilona Pētersone
Transition of various social and economic activities from analogous to digital environment and development of information society has caused necessity to reconsider the scope of copyright protection. Traditionally the borderline between free information and content protected by the exclusive rights of authors has been drawn to a great extent by copyright exceptions and limitations. In many cases this borderline, however, has remained static whilst the landscape of interests of stakeholders has changed immensely.
Seeking to resolve the abovementioned contradiction we will question, whether and to what extent the principle of technological neutrality applied to copyright exceptions and limitations may help to reach and maintain appropriate balance between the numerous interests involved.
Further, the legislative proposal amending the EU legal framework of copyright exceptions and limitations will be examined and alternative solutions of legislative nature will be proposed in order to find a middle way between legal certainty and flexibility.
The UK is at a cross roads, unsure how it will trade with Europe and the USA. This is not however a question for the UK alone: whatever is agreed will impact with the EU. Any trade agreement between the EU and UK could restrict both parties and commit them both to IP enforcement measures, for instance.
The direction of travel for the UK has been characterised as "hard" and "soft" Brexit, roughly characterised as maximum separation from EU law, and probable deregulation in many policy areas. A "soft" Brexit on the other hand would involve a large element of continuity, and perhaps commitments to keeping roughly the same legal regimes.
Commitments to agreements between the UK and EU would require commitments to fundamental rights, which could also be challenging for the UK to accept.
We have less idea what a UK-US trade agreement would contain, but considerations of fundamental rights are unlikely to be important. Here, a US government could easily try to push for more copyright enforcement measures. There is little within the UK's political structures to resist.
There are also longer term issues to consider. The EU has benefited from a relatively pragmatic voice from the UK in copyright, and also on related issues such as Open Data.
In response to a series of litigations, and their judgements, regarding IP enforcement and it's restriction in the IT industry, such as Apple vs. Samsung cases in Europe, the US and other major countries, currently Japan, Korea and Taiwan/China governments are intensively working on announcement of guidelines or study reports of their IP laws, competition law and/or civil law system.
In response to the Japan IP High Court judgement in Apple vs. Samsung case, Japan Government recently prepared their new guidelines on the restriction on IP enforcement regarding FRAND declared situation. Also, the Government has announced its study report proposal on proper/ideal calculation of royalty rate/amount of damages on IP enforcement under the Japan IP laws and civil law principles.
Also in Korea, where the headquarters of Samsung Group is located, lately they had prepared the new guidelines for restriction on IP enforcement in view of anti-unfair competition, in relation to a series of Apple vs. Samsung cases. This presentation would introduce abstract of the series of judgements and outlines and characteristics of their new guidelines.
In addition, the current move in Taiwan and China should be also pointed out. Taiwan Government, where Phillips case and Sony case was hugely focused in terms of compulsory license and competition law regulation in the past, has provided their reformed anti-unfair competition legislation. And, in China their government has been announcing multiple guidelines, through several different government agencies, on IP restriction and standard technology regulation.
This presentation will introduce the trend and outlines on restriction on IP enforcement in the IT industry and point out that those moves have been influenced by judgements in European courts and the US courts.
The Internet Corporation for Assigned Name and Numbers (ICANN) has enormous authority to make policies for the Domain Name System that impact the expression of organizations, companies and individuals around the world. Using a policy development structure called the “Multistakeholder Model,” a range of “stakeholders” are supposed to take part in ICANN’s policy development process, including Registries who run the Top Level Domains, Registrars who sell domain names, Noncommercial users and Commercial users. Unfortunately, given ICANN’s far-flung meetings and the immense amount of volunteer time spent in its policy development working groups, only those with the most resources prevail. ICANN’s policies, particularly for domain name takedowns, tilt heaving to the needs and interests of the largest trademark owners.
Furthermore, domain names are taken down every day without proof of trademark infringement pursuant to rules created by ICANN called the “Uniform Dispute Resolution Policy” (UDRP). Even domain names used legitimately for parody, criticism, competition, or simply using ordinary words and common names are taken down – together with their webpages, libservs and emails. Conversations are silenced; political and noncommercial campaigns cut off at the height of reaching their global audience.
Should private technical policy bodies be allowed to create global policies impacting Free Expression, and if so, how can we best improve the policy making processes to create a more balanced and fair result?
'Going for Gold': 3D Scanning, 3D Printing and Mass Customisation - IP Law at Crossroads?
The growth of 3D technologies impacts on intellectual property (IP) law, leading to a number of implications including copyright, design and licensing issues amongst others. Such challenges question the enforcement, object and purpose of IP laws whilst exploring the opportunities presented through this technology.
Building on the Commissioned Research carried out for the UK Intellectual Property Office (UKIPO) (2013-2015), the paper will first set out some of the key findings, from this project before moving on to a consideration of the AHRC-funded project titled 'Going for Gold: A Legal and Empirical Case Study into 3D Scanning, 3D Printing and Mass Customisation of Ancient and Modern Jewellery' (2015-2017).
In presenting the findings from the two funded projects the paper will outline the IP issues arising from this emerging technology whilst questioning what it means for UK IP law in view of Brexit.
Business Models as Tools to Reduce the Gap between IP Positions: What business models do to bring authors, industries and consumers’ positions closer?
Cost of opportunity and convenience are very seldom considered or too ignored when tackling the never ending IP debate. However those are key issues when creating business models to compete against unauthorized content distributors. While the results of academic studies seem to conflict around the implications of unauthorized file sharing, business models around content delivery do flourish against all odds with strong influence over unauthorized file-sharing. Are content business models, like those based on subscription streaming, the solution to the long posed problems between creators, intermediaries and consumers? If so, how do recent copyright law proposals influence the Europeans both at copyright and business levels? Is Europe ready to learn USA’s lessons and take any lead? How will large copyright owners adapt themselves to the new challenges of the digital age? How does geoblocking help or disencourage startups in a complex Europe? What will the European Union do to shape the future of content business development? We will try to frame this questions to promote a fruitful conversation.
Effects of new business models on creators and challenges associated with creators' capacity to influence copyright policy’s response to new developments
Digital technologies giving rise to new business models have produced both opportunities and challenges for creators. Aside from the potential for self-publication, self-promotion, a direct creator to fan interaction, and crowdfunding, new business models have introduced new players, such as online retailers, platforms, and content aggregators, to the pre-existing value chains. This has triggered a shift in the control of rights, contractual terms, and in revenue allocation to the detriment of individual creators.
Creators’ organisations (COs), including professional associations, trade unions and certain collective management organisations, exist to represent and protect the interests of creators and to ensure that copyright is an economic asset that delivers value not just to content exploiters but also to the original creators. This paper looks at four specific UK COs (the Society of Authors, the Authors’ Licensing and Collecting Society, the Musicians’ Union, and the Performing Right Society) from the music and publishing industries as copyright policy actors. It identifies complex dynamics in the way these bodies participate in policy, as well as power imbalances between individual actors. In a policy environment populated by a multitude of actors with varying interests, priorities, and concerns, networks and coalitions based on mutual interests and interdependence are important tools for all stakeholders. However, some organisations are more proactive and in a better position to effectively participate in policy than others. This paper argues that as a result of such complex dynamics and power imbalances between individual actors, and of policymakers’ insufficient understanding of these phenomena, COs struggle to assert their voice and advance important issues for creators related to the impact of changing business models. Consequently, such issues may remain unaddressed by copyright law and policy.
Fan-made works are hardly ever addressed in copyright discussions, and yet they illustrate the new kind of interactions which are enabled and strengthened by the Internet. They show exactly the kind of cross-media interactions that crowd contemporary popular culture: fan videos, mashups, crossovers- They all push the boundaries of traditional copyright and bring new challenges.
These works, no matter if they are born in the spirit of parody or as tributes, go beyond what is popularly known as fan communities. As they involve fundamental issues with freedom of speech, open culture, fair use, and the possibilities of today’s creators to share and create new ideas, they impact all of us.
When trying to create a work of art based on another, many questions arise: Where are the limits? What is fair use, and what isn't? What are the different postures of European copyright holders, and how much do they change from one to another? What do European laws have to say about these works? What are the business opportunities around them? Right now, European fan artists are walking on thin ice. But they have much to offer, and it’s time to listen and adapt.
This session will take a brief look at two very different areas where access to knowledge and collaboration are greatly beneficial, but conventional open IP approaches may not be sufficient to ensure these. 1) Open hardware is advancing in the hobbyist sector and consumer electronics, but taking it to an industrial scale could enable new forms of collaboration that allow SMEs to pool R&D resources and development tools, with the potential to lead to greater innovation and economic growth. The complex protections available for industrial products make it difficult to create collaboration communities, but an alternative approach could be sought through the use of industrial certification. We will look at mid sized wind turbines as an example. 2) Artificial intelligence promises great benefits but it is unclear how these are distributed. We will look in particular at the case of Google’s Deep Mind and their use of UK public sector health data to generate insights on how improve medical care. There are growing demands to define a public interest approach to knowledge generated with public funds, based on an open access approach, but it is unclear how this would work with AI. Industry on the other hand demand that their investments must be protected, so these two claims must be considered. A possible alternative could be to provide AI companies with some regulatory protection in lieu of IP rights when required to disclose information, as is the case, for example, in data exclusivity for biological medicines.
Recently, driven by the enthusiasm spurred by the Open Innovation movement, also individual patentees as well as wealthy corporations holding valuable patent portfolios have started sharing their patented knowledge by opening it up through specific and uniform online licenses. Whether in the open source software environment or in the fields of biosciences and green technologies, during the last few years patent holders have adopted online uniform terms and conditions to license their patents with the aim of facilitating the access to, the transfer of, and the use of their patents. By doing this patent pledges and covenants have become the keys to open patents, that is, to make the use of patents be more accessible and inclusive. Actually, some pledges and covenants contribute to create “clubs of patentees”, where, similarly to online pools, patentees reciprocally commit to share their patents. These clubs are inwardly open, but still closed towards the non-members. Other pledges and covenants, on the other hand, set the grounds to make patents open toward whoever is interested in them, on the main condition that this unknown re-user will make her own follow-on innovation be equally open. The paper discusses the legal implications of the above pledges and covenants. In particular, after having depicted a taxonomy of the main cases in which such an alternative use of the patent is done, it discusses communalities and differences. The work intends to answer the question as to whether and when these patent pledges and covenants accommodate the realm of Open Innovation to which they are deemed to belong.
Many educators become increasingly familiar with the challenges of copyright, because technological developments has enabled them to turn in to creators of educational materials. Copyright should be updated so that it embraces the new opportunities made possible by technology in education. Exceptions and limitations to copyright for education should support necessary access and re-use of copyrighted content of all types in a variety of education settings, locally and across borders. A copyright system that does not offer a proper balance between the rights of copyright owners and the public interests related to education has necessarily a negative impact on innovative education. I will argue that education needs copyright that allows teachers, students, researchers and other providers of education to easily collaborate and exchange information across Europe. The current legal copyright landscape in Europe is very fragmented. This is problematic because it results in legal uncertainty faced by educators that use copyrighted content. The educational exception on copyright should permit diversity of educational uses: digital and analogue. Lastly, the education community should be able to access and use content for educational purposes without physical or technological barriers in accordance with fair practice.