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NATIONAL SEMINAR ON COPYRIGHT IN THE INTERNET: PERSPECTIVES AND PROBLEMS organized by the World Intellectual Property Organization (WIPO) in cooperation.

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Presentation on theme: "NATIONAL SEMINAR ON COPYRIGHT IN THE INTERNET: PERSPECTIVES AND PROBLEMS organized by the World Intellectual Property Organization (WIPO) in cooperation."— Presentation transcript:

1 NATIONAL SEMINAR ON COPYRIGHT IN THE INTERNET: PERSPECTIVES AND PROBLEMS organized by the World Intellectual Property Organization (WIPO) in cooperation with the State Service of Intellectual Property and Innovation under the Government of the Kyrgyz Republic (Kyrgyzpatent) Bishkek, June 26, 2014 PROTECTION AND ENFORCEMENT OF COPYRIGHT IN THE DIGITAL ENVIRONMENT Dr. Mihály Ficsor, Chairman, Central and Eastern European Copyright Alliance (CEECA), former Assistant Director General of WIPO

2 2 I. INTRODUCTION M. Ficsor, Bishkek, June 26, 2014

3 Advice to guide us in the application of copyright in the online environment M. Ficsor, Bishkek, June 26, Francis Gurry, Director General of WIPO

4 Francis Gurry on copyright in the online environment (1) Francis Gurry, Director General of WIPO, on the future of copyright on the Internet at the „Blue Sky Conference” in Sidney in February 2011, about the tasks of balancing: „It is a question that implies a series of balances: [1] between availability, on the one hand, and control of the distribution of works as a means of extracting value, on the other hand; [2] between consumers and producers; [3] between the interests of society and those of the individual creator; and [4] between the short-term gratification of immediate consumption and the long-term process of providing economic incentives that reward creativity and foster a dynamic culture.” (Emphasis and inner numbering added.) 4M. Ficsor, Bishkek, June 26, 2014

5 Francis Gurry on copyright in the online environment (2) Francis Gurry in his „Blue Sky” speech on the future of copyright concerning the adaptation of copyright to the conditions of the online environment: „Adaptation in this instance requires, in my view, activism. I am firmly of the view that a passive and reactive approach to copyright and the digital revolution entails the major risk that policy outcomes will be determined by a Darwinian process of the survival of the fittest business model. The fittest business model may turn out to be the one that achieves or respects the right social balances in cultural policy. It may also, however, turn out not to respect those balances. The balances should not, in other words, be left to the chances of technological possibility and business evolution. They should, rather, be established through a conscious policy response.” (Emphasis added.) 5M. Ficsor, Bishkek, June 26, 2014

6 Francis Gurry on copyright in the online environment (3) Francis Gurry in his „Blue Sky” speech on the future of copyright warning against the idea of trying to waiting for a single solution: „I do not think that there is any single magical answer. Rather, an adequate response is more likely to come from a combination of [1] law, [2] infrastructure, [3] cultural change, [4] institutional collaboration and [5] better business models… „Recognizing the limitation of law, and its inability to provide a comprehensive answer, should not mean that we abandon it…” (Emphasis and inner numbering added.) 6M. Ficsor, Bishkek, June 26, 2014

7 Francis Gurry on copyright in the online environment (4) Francis Gurry in his „Blue Sky” speech on the future of copyright about the need for new approaches: „In order to effect a change in attitude, I believe that we need to re- formulate the question that most people see or hear about copyright and the Internet. People do not respond to being called pirates. Indeed, some, as we have seen, even make a pride of it. They would respond, I believe, to a challenge to sharing responsibility for cultural policy… „The final element of a comprehensive and coherent design is better business models. This is undoubtedly happening now. But the story is not over.” (Emphasis added.) 7M. Ficsor, Bishkek, June 26, 2014

8 Francis Gurry on copyright in the online environment (5) Francis Gurry in his „Blue Sky” speech on the future of copyright about the decisive role of online intermediaries: „I believe that the question of… the responsibility of intermediaries is paramount. The position of intermediaries is key. They are at once, service providers to, as well as partners, competitors and even clones of creators, performers and their business associates; hence the difficulty that we have in coming to a clear position on the role of intermediaries.” (Emphasis added.) M. Ficsor, Bishkek, June 26, 20148

9 II. THE BASIS: THE WIPO „INTERNET TREATIES” 9M. Ficsor, Bishkek, June 26, 2014

10 The WIPO „Internet Treaties” (1)  The WIPO „Internet Treaties” adopted in Geneva on December 21, 1996  the WIPO Copyright Treaty (WCT) entered into force on March 6, 2002 number of Contracting Parties on January 30, 2014: 91.  the WIPO Performances and Phonograms Treaty (WPPT) entered into force on May 20, 2002 number of Contracting Parties on May 10, 2013: 92.  The Beijing Treaty on Audiovisual Performances (BTAP) not enterred into force yet.  The Treaties offer overall regulation on copyright and two categories of related rights, but their main objective is to adapt those rights to the digital, networked environment, to the requirements of the information society. 10M. Ficsor, Bishkek, June 26, 2014

11 General characterisation of the „Internet Treaties”  Legally: no revisions of the Berne Convention and the Rome Convention, but “special agreements” (under Berne Article 20 and Rome Article 22).  Concerning the level of protection: „Berne & Rome plus TRIPS plus;” that is, what is provided in the Berne and Rome Convention plus what is provided in the substantive provisions of the TRIPS Agreement plus what is still included on the basis of the “digital agenda” of the preparatory work.  From the viewpoint of economic and legislative burdens: no real extension of the scope of protection; clarification of the application of the existing norms and, in certain aspects, their adaptation to the new environment, and new means of exercise and enforcement of rights.  Politically: the Treaties are well-balanced, flexible and duly take into account the interests of the different groups of countries and stakeholders. 11M. Ficsor, Bishkek, June 26, 2014

12 Provisons of the „Internet Treaties” included on the basis of the „digital agenda” The so-called „Berne/Rome plus TRIPS plus” elements included in the WIPO Treaties on the basis of the „digital agenda:”  clarification of the application of the right of reproduction in the digital environment, in particular as regards the storage of works, performances and phonograms in electronic memories;  recognition/clarification of the existence – as an inevitable corollary to the right or reproduction – of an exclusive right of first distribution of copies of works, fixed performances and phonograms;  through a combination and adaptation of existing rights, recognition of the exclusive right of (interactive) making available of works, fixed performances and phonograms;  clarification of the application of exceptions and limitations in the new environment;  obligations regarding the protection of technological measures and rights management information, as means of exercising and enforcing rights. 12M. Ficsor, Bishkek, June 26, 2014

13 Rights applicable for the acts performed on the Internet (1)  Uploading: exclusive right of reproduction.  Berne Article 9;  TRIPS Article 9(1)  Berne Article 9; TRIPS Article 14(1), (2) and (3);  WCT Article 1(4)  Berne Article 9, agreed statement: electronic storage is also reproduction;  WPPT Articles 7 and 11; agreed statement as in the case of the WCT.  However, in case of (interactive) making available to the public, the act of uploading is „dissolved” in the exclusive right of (interactive) making available to the public:  WCT Article 8 (as part of the general exclusive right of communication to the public);  WPPT Articles 10 and 14 (separate from the right to single equitable remuneration for non-interactive communication to the public under WPPT Article 15). 13M. Ficsor, Bishkek, June 26, 2014

14 Rights applicable for the acts performed on the Internet (2)  Exercise of the right of (interactive) making available to the public:  producers of audiovisual works, producers of phonograms, publishers of books; software and videogame makers: normally on the basis of individual exercise of rights;  authors, composers, music publishers: normally on the basis of voluntary or „extended” collective management organizations;  performers: in favor of collective management which, in general, is at least „extended,” but in certain cases, it may be even mandatory on the basis of the application of the „residual” rights model of the E.U.’s Rental, Lending and Related Rights Directive (unwaivable right to remuneration maintained after the transfer of the exclusive right and exercised through mandatory collective management).  The problem of cumulative rights: in case of transmission for downloading, the mechanical right is (also) involved; while, in the case of interactive streaming truly the communication to the public element dominates. 14M. Ficsor, Bishkek, June 26, 2014

15 Rights applicable for the acts performed on the Internet (3) Downloading: right of reproduction:  in case of downloading by natural persons for private, non- commercial purposes: right to remuneration (Information Society (Copyright) Directive Article 5(2)(b): „fair compensation”) based on a „levy” system and exercised through mandatory collective management;  free reproduction against the payment of a „levy” does not extend to reproduction from [obviously] illegal sources: clarified by legislation (such is in Germany, Nordic countries, Spain) or in other way (such as by the Conseil d’État in France or by the Copyright Council in Hungary);  for the right to remuneration, the application and non-application of technological protection measures should be taken into account, and the objective of making private copies, in general, does not eliminate the prohibition of the circumvention of such measures (Information Society (Copyright) Directive Article 6). 15M. Ficsor, Bishkek, June 26, 2014

16 Rights applicable for the acts performed on the Internet (4) Non-interactive webcasting, simulcasting (streaming):  in case of copyright, the „traditional” rights of communication to the public apply; as regards authors’ rights – depending on whether original communication or retransmission is involved – in accordance with the international and E.U. norms, in the form of voluntary, „extended” or mandatory collective management;  in the case of performers and producers of phonograms, the right to single equitable remuneration applies frequently with mandatory collective management. 16M. Ficsor, Bishkek, June 26, 2014

17 17 III. HOW THE BEIJING AND THE MARRAKESH TREATIES HAVE „DEFENDED” THE WCT AND THE WPPT

18 Unfounded allegations against the WCT and the WPPT Certain „academics” (not the real copyright experts; rather those representing anti-copyright interests ) and „activists” invented some false theories about alleged problems (the „unbalanced” nature) of the 1996 WIPO Treaties. They attacked first of all the provisions (i) on exceptions and limitations based on the application of the „three-step test” (alleging that it is not sufficiently flexible) and (ii) on the protection of technological measures (such as encryption) and rights management information (digital identifiers) – which together form digital rights management (DRM) systems. In the following slides, first, these allegations are reviewed and rebutted, and, then, it is presented how the WIPO Diplomatic Conferences adopting the Bejing Treaty on Audiovisual Performers Treaty (BTAP) and Marrakesh Treaty on exceptions and limitations for visually impaired persons have rejected these allegations and protected the principles and provisions of the WCT and the WPPT. M. Ficsor, Bishkek, June 26,

19 Balance of interests – basic considerations on exceptions and limitations  The need for an appropriate balance between the public interest to promote creativity through adequate copyright protection and other public interests has been recognized and taken into account since the very moment of the creation of an international copyright system.  Statement of Numa Droz, the President of Conference at the first of the three diplomatic conferences held in Bern (1884, 1885 and 1886) leading to the adoption of the Berne Convention : “Whereas, for one thing, certain delegations might have wished for more extensive and more uniform protection of authors’ rights, due account did also have to be taken of the fact that the ideal principles whose triumph we are working towards can only progress gradually in the so-varied countries that we wish to see joining the Union. Consideration also has to be given to the fact that limitations on absolute protection are dictated, rightly in my opinion, by the public interest. The ever-growing need for mass instruction could never be met if there were no reservation of certain reproduction facilities, which at the same time should not degenerate into abuses. These were the various viewpoints and interests that we have sought to reconcile in the draft Convention.” (Emphasis added.) 19M. Ficsor, Bishkek, June 26, 2014

20 Freedom of expression; access to information under the international treaties  The free idea/protected expression and free information/protected original presentation dichotomies: TRIPS Art. 9.2 and WCT Art. 2.  Access to information: free use official texts of a legislative, administrative and legal nature (Berne Art. 2(4)), political speeches and speeches delivered in legal proceedings (Berne Art. 2bis(1)), and – for informatory purposes – lectures and addresses delivered in public (Berne Art. 2bis(2)), ; free re-use of articles and broadcast works on current economic, political or religious topics (Berne Art. 10bis(1)) and (Art.10bis(2)).  Freedom of speech, research and criticism: free quotation (Art. 10(1)) (+ exceptions on the basis of the „three-step test” for caricature, parody and pastiche, see, e.g. Art, 5(3)(k) and (5) of the EU Information Society (Copyright) Directive of 2001). 20M. Ficsor, Bishkek, June 26, 2014

21 Balancing of interests – other specific exceptions and limitations  Educational purposes: free use by way of illustration for teaching (Art. 10(2)),  So-called minor „reservations” regarding performing rights such as for official or religious ceremonies, non-profit educational purposes (agreed statement adopted concerning Arts. 11, 11 bis, 11ter).  Facilitating broadcasting and making and preservation of broadcast works: compulsory licenses or mandatory collective management (Art. 11 bis (2)) and exceptions (Art. 11 bis (3)).  Facilitating recording of music: compulsory licenses or mandatory collective management (Art. 13(1)). M. Ficsor, Bishkek, June 26,

22 Balancing of interests – the „three-step test” (1)  „Invented” at the 1967 Stockholm revision conference ; Art. 9(2) of the Berne Convention only regarding the right of reproduction.  Extended by the TRIPS Agreement to all economic rights under copyright (Art. 13) (but not to related rights; see Art. 14.6) and – with some wording differences – to industrial design rights (Art. 26.2) and patent rights (Art.30).  Extended by the WCT to all economic rights under copyright (Art. 10) and by the WPPT to all economic rights of performers and producers of phonograms (Art. 16). 22M. Ficsor, Bishkek, June 26, 2014

23 Balancing of interests – the „three-step test” (2)  The three „steps”(three cumulative conditions that exceptions and limitations should fulfill to be applied step by step under Art. 9(2) of the Berne C.; Art. 13 of the TRIPS Agrement; Art. 10 of the WCT; Art. 16 of the WPPT:  confined to certain special cases (copyright; related rights); limited scope (industrial design and patent rights);  no conflict with a normal exploitation (in the case of industrial design and patent rights: no unreasonable conflict);  no unreasonable prejudice to the legitimate interests of the owners of rights (in respect of industrial design and patent rights, it is added: „taking into account of the legitimate interests of third parties”).  Offering sufficient flexibilities for a due balance of interests, as also proved by two WTO dispute settlement reports interpreting the test as provided in Articles 13 and 30 of the TRIPS Agreement:  WT/DS114/R of 17 March 2000 (Canada – Patents);  WT/DS160/R of 15 June 2000 (USA – Copyright). 23M. Ficsor, Bishkek, June 26, 2014

24 Balancing of interests – exceptions and limitations in the digital online environment (1)  Agreed statement concerning Article 10 of the WCT (on the „three-step test” concerning copyright): „It is understood that the provisions of Article 10 permit Contacting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered applicable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting parties to devise new exceptions and limitations that are appropriate in the digital network environment. „It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.”  Agreed statement concerning Article 16 of the WPPT (on the „three-step test concerning the rights of performers and producers of phonograms): The agreed statement concerning Article 10 (on Limitations and Exceptions) of the WIPO Copyright Treaty is applicable mutatis mutandis also to Article 16 (on Limitations and Exceptions) of the WIPO Performances and Phonograms Treaty. 24M. Ficsor, Bishkek, June 26, 2014

25 Balancing of interests – exceptions and limitations in the digital online environment (2) Some examples:  The E.U. Information Society (Copyright) Directive provides for exceptions, inter alia, in the following cases:  Article 5(3)(n):„use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collection.”  TEACH Act of 2002 of the U.S.: extension of the classroom exception for teaching to distance education, subject to guarantees – by technological measures – that the works and objects of related rights are only made available through the Internet to those who participate in the organized educational program. 25M. Ficsor, Bishkek, June 26, 2014

26 The Beijing and Marrakesh Treaty confirming the application of the three-step test The Beijing Treaty and the Marrakesh Treaty – repeating the texts of the provisions on the three-step test – have confirmed that all possible exceptions to or limitations of copyright and related rights allowed under the WIPO treaties (as well as under the TRIPS Agreement) may only be applied if they fulfill the three cumulative criteria of the test. The Marrakesh Treaty is a unique international instrument. Contrary to all the other copyright treaties, it is format-oriented, its objective is to provide adequate framework for international cooperation to facilitate cross-border availability of accessible format copies for the visually impaired persons. The Diplomatic Conference adopting the Marrakesh Treaty not only have confirmed the obligation to subject all possible exceptions and limitations to the three-step test, but also rejected the idea that the „fair use” system might be and alternative to the three-step test. M. Ficsor, Bishkek, June 26,

27 „Answers to the machine:” application and protection of TPMs and RMI (DRM) (1)  Agreement at the 1996 Diplomatic Conference: there was a need for making it possible the application of, and adequately protecting, technological measures (TPMs, such as encryption systems) and rights management information (RMI, such as digital identifiers) – together: „digital rights management” (DRM) – in order that copyright and related rights might be exercised and enforced in the digital, networked environment.  WCT Article 11 and WPPT Article 18: „Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by [authors][performers or producers of phonograms] in connection with the exercise of their rights under [this Treaty or the Berne Convention][this Treaty] and that restrict acts, in respect of their [works][performances or phonograms], which are not authorized by [the [authors][the performers or the producers of phonograms] concerned or permitted by law.” 27M. Ficsor, Bishkek, June 26, 2014

28 „Answers to the machine:” application and protection of TPMs and RMI (DRM) (2) WCT Article 12 and WPPT Article 19: „(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by [this Treaty or the Berne Convention][this Treaty]: (i)to remove or alter any electronic rights management information without authority; (ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, [works] or copies of [works][fixed performances or phonograms] knowing that electronic rights management information has been removed or altered without authority. „(2) As used in this Article, ‘rights management information’ means information which identifies the [work, the author of the work][the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the [work][performance or phonogram], or information about the terms and conditions of use of the [work][performance or phonogram], and any numbers or codes that represents such information, when any of these items of information is attached to a copy of a [work][performance or phonogram] or appears in connection with the communication of [a work][a fixed performance or a phonogram] to the public.” 28M. Ficsor, Bishkek, June 26, 2014

29 „ Answers to the machine:” application and protection of TPMs and RMI (DRM) (3)  The requirement of adequate protection of TPMs can only be duly fulfilled if the protection extends for both access-control and „copy-control” TPMs and against both acts of circumvention and „preparatory acts.” The negotiating history of the „Internet Treaties” confirms this.  Article 6(1) and (2) of the Information Society (Copyright) („InfoSoc”) Directive: „1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective. „2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which: (a) are promoted, advertised or marketed for the purpose of circumvention of, or (b) have only a limited commercially significant purpose or use other than to circumvent, or (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.” 29M. Ficsor, Bishkek, June 26, 2014

30 „Answers to the machine:” application and protection of TPMs and RMI (DRM) (4)  Contrary to certain allegations, no new „access right” emerges as a result of application and protection of TPMs and RMI.  Access to works by users have always been controlled; without it, the copyright system simply could not have existed. In book shops, record shops, one has had to pay for copies to get full access; in libraries,certain rules have had to be respected in order to receive copies in loan; in case of theatrical presentations, concerts, etc., buying tickets or other arrangements have been needed to the members of the public for getting access. 30M. Ficsor, Bishkek, June 26, 2014

31 „Answers to the machine:” application and protection of TPMs and RMI (DRM) (5)  Even the beneficiaries of exceptions have not been able to get access to copies without any conditions whatsoever. Walking into a bookshop, taking a book from the shelves and walking out without payment referring to the „right” of free quotation?  In the digital networked environment, what used to be (i) going to the video shop, (ii) buying a video recording on a cassette; (iii) bringing it home, (iv) putting into the player, (v) sitting down and (vi) pressing the „play” button – has been replaced by a simple click on the keyboard. The use of TPMs („DRM”) is the normal way of making access conditional to the payment of a reasonable price or some other arrangement. 31M. Ficsor, Bishkek, June 26, 2014

32 „Answers to the machine:” application and protection of TPMs and RMI (DRM) (6)  Various methods to guarantee the applicability of exceptions and limitations that are important from the viewpoint of public interests. For example, in the U.S. certain outright exceptions and a tri-annual administrative review process.  In the E.U., the Member States are obligated to provide for an appropriate intervention mechanism under Article 6(4) of the 2001 Information Society (Copyright) Directive: „Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law in accordance with Article 5(2)(a) [reprographic reproduction], (2)(c) [certain library and educational uses], (2)(d) [ephemeral recording by broadcasters], (2)(e) [copying of broadcasts in social institutions], (3)(a) [illustration for teaching; scientific research], (3)(b) [use by people with disability] or (3)(e) [public security; official procedures] the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned. 32 M. Ficsor, Bishkek, June 26, 2014

33 „Answers to the machine:” application and protection of TPMs and RMI (DRM) (7) Article 6(4) of the Information Society (Copyright) Directive (continued): „Member State may also take such measures in respect of a beneficiary of an exception or limitation provided for in accordance with Article 5(2)(b) [private copying], unless reproduction for private use has already been made possible by rightholders to the extent necessary to benefit from the exception or limitation concerned and in accordance with the provisions of Article 5(2)(b) and (5) [Article 5(5) subjects the application of all exceptions and limitations to the „three-step test”], without preventing rightholders from adopting adequate measures regarding the number of reproductions in accordance with these provisions. „The technological measures applied voluntarily by rightholders, including those applied in implementation of voluntary agreements, and technological measures applied in implementation of the measures taken by Member States, shall enjoy the legal protection provided for in paragraph 1. „The provisions of the first and second subparagraphs [see the preceding slide and the first paragraph on this slide] shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.” 33M. Ficsor, Bishkek, June 26, 2014

34 „Answers to the machine:” application and protection of TPMs and RMI (DRM) (8)  The majority Member States apply mediation-arbitration systems as such intervention measures. In general, the pessimistic forecasts – according to which the application and protection of TPMs would not guarantee the applicability of important exceptions and limitations – have turned out to be unjustified.  In Hungary, also a mediation system has been provided in the Copyright Law for which the Hungarian Copyright Council is competent. The system has been in existence since May 1, 2004, when Hungary became a member of the E.U. and the author of this presentation has always been the President of the Council who receives the submissions for mediation and appoints mediation panels. Thus, he knows the exact number of submissions presented until the completion of this presentation (April 20, 2013) due to problems that TPMs made the applicability of certain exceptions and limitations impossible.  The exact number of justified submissions received during the nearly ten years since May 1, 2004: 34M. Ficsor, Bishkek, June 26, 2014

35 „Answers to the machine:” application and protection of TPMs and RMI (DRM) (9) 0 (ZERO) M. Ficsor, Bishkek, June 26,

36 Technological measures & limitations and exceptions (1) The Beijing Treaty includes mutatis mutandis exactly the same provision on technological measures as the WCT and WPPT Article 15 of the BTAP. Obligations concerning Technological Measures Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances, which are not authorized by the performers concerned or permitted by law. (Emphasis added.) M. Ficsor, Bishkek, June 26,

37 Technological measures & limitations and exceptions (2) Agreed statement concerning Article 15 as it relates to Article 13: It is understood that nothing in this Article prevents a Contracting Party from adopting effective and necessary measures to ensure that a beneficiary may enjoy limitations and exceptions provided in that Contracting Party’s national law, in accordance with Article 13, where technological measures have been applied to an audiovisual performance and the beneficiary has legal access to that performance, in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that performance to enable the beneficiary to enjoy the limitations and exceptions under that Contracting Party’s national law. Without prejudice to the legal protection of an audiovisual work in which a performance is fixed, it is further understood that the obligations under Article 15 are not applicable to performances unprotected or no longer protected under the national law giving effect to this Treaty.  The fact that the proviso „in accordance with Article 13” appears between commas thus separated from the rest of the sentence means that the three- step test provided in Article 13 controls both the application of limitations and exceptions and the measures to ensure that beneficiaries may enjoy them. M. Ficsor, Bishkek, June 26,

38 M. Ficsor, Bishkek, June 26, IV. SPECIFIC CONDITIONS FOR EXERCISE AND ENFORCEMENT OF RIGHTS IN THE ONLINE ENVIRONMENT

39 General and specific aspects of enforcement in the digital, online environment  The enforcement provisions of the TRIPS Agreement are applicable also in the new environment in respect of certain acts performed through the Internet that are covered by rights protected under the Agreement (such as the right of reproduction or certain forms of communication to the public).  However, there are special aspects of enforcement of copyright in the digital environment, in particular on the Internet:  strong anti-copyright movements and lobbying based on „copyleft” ideologies and sheer economic interests, in particular concerning the „file-sharing” systems, „user-generated content (UGC)” platforms, and the like;  remedies, and administrative and criminal sanctions in case of violation of prohibitions concerning technological measures and electronic rights management information;  liability of Internet service providers (ISPs) and other intermediaries for the infringements committed through the use of their services. 39M. Ficsor, Bishkek, June 26, 2014

40 Anti-copyright ideologies and lobbying (1) New industries with great economic power and political influence which are – or at least believe that they are – interested in weaker protection and enforcement of copyright.  „Men in black” at the WIPO African regional consultation: representatives of super-rich IT companies speaking about the interests of consumers and public-interest establishments.  Birth and flourishing of improbable alliances; consumer and „public interest groups” acting in close cooperation with huge IT industries against „greedy” copyright owners.  Thesis: it is also against the long-term (or even medium-term) interests of the IT industries, consumers and public-interests groups to try to undermine copyright protection. 40M. Ficsor, Bishkek, June 26, 2014

41 Anti-copyright ideologies and lobbying (2) Presentation at the WIPO SCCR session in December 2013 Robert Levine: „Free Ride: How Digital Parasites Are Destroying the Culture Business,” Doubleday, M. Ficsor, Bishkek, June 26,

42 Anti-copyright ideologies and lobbying (3) Robert Levine at the WIPO SCCR in December 2013 on a deal offered by online intermediaries to their customers: We internet intermediaries, obtain our profit mainly from advertisements on our sites. The advertisers pay in proportion of the number of your visits on our websites; therefore, the more frequently you use our websites the more profit we get. It is obvious that the easier access you have to attractive contents (music, films, books, etc.) on our websites you will visit them the more frequently and the more profit we will have. Therefore, it is our common interest to decrease the level and efficiency of copyright protection in the online environment. Let us act together. We, internet intermediaries with our enormous economic and lobbying power obtained due to your frequent visits on our websites and you our customers, organized by the activists with our support, with the political influence you represent in politics. If we do so and act together, we continue obtaining big profit and you will get attractive contents through our websites as easily as possible. A perfect deal, a win-win deal for us, internet intermediaries and for you, our customers. Well, it is to the detriment of authors, performers, publishers and producers, but it is their problem; they should solve it. M. Ficsor, Bishkek, June 26,

43 M. Ficsor, Bishkek, June 26, Google: $32.7bn; Facebook: $4.3bn; Twitter $269,4mn

44 M. Ficsor, Bishkek, June 26,

45 M. Ficsor, Bishkek, June 26, Mansifestations against authors’ rights as the obstacle to free access to authors’ works

46 Authors as obstacles to the free access to authors’ works M. Ficsor, Bishkek, June 26,

47 M. Ficsor, Bishkek, June 26, V. STRATEGIES FOR EXERCISE AND ENFORCEMENT OF COPYRIGHT IN THE ONLINE ENVIRONMENT

48 Strategy options Exercising exclusive rights with the support of DRM (technological measures and rights management information) - see above in this presentation and the second presentation of the speaker at this seminar. Exercising exclusive rights by authorizing advertisement-supported content providers to make available works and objects of related rights freely – see second presentation of the speaker at this seminar. Exercising exclusive rights by authorizing online providers not to remove unauthorized contents – see the third presentation of the speaker at this seminar. Collective management of rights – see the second presentation of the speaker at this seminar. Free availbility through open systems – see the second presentation of the speaker at this seminar. Direct enforcement against infringers – see the rest of this presentation. Enforcement through cooperation by intermediaries – see the third presentation of the speaker at this seminar. M. Ficsor, Bishkek, June 26,

49 Legal, political and practical problems going against individual infringers Legally it would be possible and justified  although private copying may be done without authorization (possibly combined with a payment based on equipment or carrier levy), but this does not extend to copying from (obviously) illegal sources;  making available works and objects of related rights by uploading it on the internet is infringement (irrespective of whether or not it is for profit making purposes);  copying through BitTorrent systems goes along with uploading. Experience has shown that enforcing rights against the extremely big number of individual uploaders and downloaders is not practical and politically not advisable. What happens is raiding and shutting down profit-making illegal websites. Furthermore, there are spectacular cases – even criminal actions - against big illegal sites. Some of these are mentioned here. However, even the actions against such rogue websites is not really sufficient without the cooperation of internet intermediaries. M. Ficsor, Bishkek, June 26,

50 M. Ficsor, Bishkek, June 26, VI. ENFORCEMENT AGAINST MAJOR CONTRIBUTORY INFRINGERS

51 Case law: „classical” cases (1) „Classical” cases: Napster (A&M Records, Inc v. Napster 239 F. 3d 1004 (9 th Cir. 2001). Napster, the first popular p2p music “file sharing” system, had a central database that allowed users to find each other and to copy MP3 files from each other’s shared libraries on their hard drives. Napster has been found liable for contributory infringement since it could have blocked access to infringing files and it did not do so and even encouraged infringements. 51M. Ficsor, Bishkek, June 26, 2014

52 Case law: „classical” cases (2) „Classical” cases: Grokster (Streamcast, Morpheus) (MGM Studios, Inc. v. Grokster Ltd. 125 S. Ct (2005). This new generation of p2p systems did not have centralized directory; the information necessary for “file sharing” was dispersed among the users of the system. Their business profits from advertisement depended on the volume of infringing copies transmitted with the use of their software. The US Supreme Court found that they actively induced infringements. M. Ficsor, Bishkek, June 26,

53 Case law: „classical” cases (3) The „classical” cases KaZaa (Universal Music Australia Pry Ltd v. Sharman License Holding Ltd (2005) FCA 183.) The Federal Court of Australia has found the company operating the KaZaa decentralized “file sharing” system for reasons similar to those identified by the US Supreme Court in the Grokster case. The decision pointed out that no measures had been applied to prevent infringements although they were available (but their application would have been against the company’s financial interests). The defendants also actively promoted infringements under the populist slogan of “KaZaa revolution.” 53M. Ficsor, Bishkek, June 26, 2014

54 Case law: rogue anti-copyright websites (1) M. Ficsor, Bishkek, June 26,

55 Case law: rogue anti-copyright websites (2) Extremist anti-copyright websites Pirate Bay (Sony Music et al. v. Fredrik Neij, Gottfrid Swartholm Warg, Peter Sunde Kolmisoppi and Carl Ulf Sture Lunds Sure Lundström, decision No. B of April 17, 2009, of the Stockholm District Court). The Stockholm District sentenced each of the four defendants – the operators of Pirate Bay one of the biggest BitTorrent “file-sharing” systems – to imprisonment for complicity (aiding and abetting) in copyright infringements. By providing a website with highly-developed search functions, simple uploading and downloading procedures, and by linking a tracker to the website, the defendants abetted the offences which the “file-sharers” were objectively guilty of. The District Court has also obligated the defendants to pay compensation for damages to the plaintiff owners of rights in an amount over 30 million Swedish crowns. M. Ficsor, Bishkek, June 26,

56 Case law: rogue anti-copyright websites (3) Extremist anti-copyright websites Megaupload Ltd had websites which included the illegal file hosting service megaupload.com allowing massive unauthorized file storage and viewing. Its domain names were were seized and the sites were shut down by the US Department of Justice on January 19, 2012, following the indictment of the ultrarich owner „Kim Dotcom” (Kim Schmitz) as an organization dealing with copyright infringment. The New Zealand Police placed „Kim Dotcom” (Kim Schmitz) in custody in response to US charges of criminal copyright infringement. Dotcom had cost the entertainment industry at least 500 million US Dollars through pirated content uploaded to his file-sharing site, which had 150 million registered users. Dotcom has been fighting the attempt to extradite him to the United States. M. Ficsor, Bishkek, June 26,

57 The hero of „free access” activists: „Kim Dotcom” (1) M. Ficsor, Bishkek, June 26, With one of his helicopters and cars bought by money stolen from copyright owners

58 The hero of „free access” activists: „Kim Dotcom” (2) M. Ficsor, Bishkek, June 26, One of his castles built from the money stolen from copyright owners

59 Rogue websites: are they eliminated? M. Ficsor, Bishkek, June 26, Is the pirates’ boat sinking?

60 Not yet The Pirate Bay still exists fleeing around the world changing domain names every couple of days. And Dot Com has opened a new pirate website: „Mega” M. Ficsor, Bishkek, June 26,

61 Not yet: still getting richer from the money stolen from copyright owners (1) M. Ficsor, Bishkek, June 26,

62 Not yet: still getting richer from the money stolen from copyright owners (2) M. Ficsor, Bishkek, June 26, I

63 What may still be a solution against such kinds of aggressive and massive infringers ? Francis Gurry, Director General of WIPO, about the future of copyright on the Internet at the „Blue Sky Conference” in Sidney in February 2011: M. Ficsor, Bishkek, June 26, „I believe that the question of… the responsibility of intermediaries is paramount. The position of intermediaries is key.”

64 M. Ficsor, Bishkek, June 26, THANK YOU FOR YOUR ATTENTION


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