Love it? Hate it? Can't pronounce it?—what you can expect from copyright in 2015

© Terence Lim

The experts

Tom Moody-Stuart, barrister, 8 New Square, Theo Savvides, partner, Bristows LLP, Tom Ohta, associate, Bristows LLP and currently an IPKat Kat, Andy Butcher, associate, Bristows LLP, Sean Ibbetson, associate, Bristows LLP

What are your predictions for 2015?

Tom Moody-Stuart: Looking forward, the impact of the private use exception (and to a lesser extent, the other copyright exceptions) should become more apparent over the course of 2015. Even if the provision were declared ultra vires there is every chance that it would be reinstated in an amended form. The measure is a popular one among consumers, and I would be surprised if it were to be abandoned, whoever is sitting in Downing Street come the end of May 2015.

Theo Savvides, Tom Otha, Andy Butcher and Sean Ibbetson:

Legislation

In 2015 we expect to see regulations made pursuant to the Copyright, Designs and Patents Act 1988, s 170(2)(CDPA 1988) to reduce the duration of copyright in some existing, but unpublished, copyright works. Due to the transitional provisions contained in CDPA 1988, Sch 1, some very old unpublished works are protected by copyright in the UK until 2039 despite the fact that their authors may have died hundreds of years ago. Some of these works may be of significant cultural and/or historical interest. Therefore, the Intellectual Property Office (IPO) launched a consultation (which closed on 12 December 2014) on reducing the duration of copyright in so-called ‘2039’ works.

CDPA 1988, s 52 currently provides that artistic works which are copied, for commercial purposes, by an industrial process with the permission of the copyright owner are subject to a reduced period of copyright protection—25 years from the end of the year in which the industrially-produced copies are first marketed (rather than the usual period of 70 years from the end of the year of the artist’s death). The government has already legislated to repeal this reduced period of copyright protection for industrially-copied artistic works but the mechanism of the repeal has not yet been confirmed—the government wishes to implement the repeal in a way that reduces the negative impact on businesses which currently benefit from the reduced period of protection for industrially-copied artistic works by using such works (which were first marketed more than 25 years ago). Therefore, the IPO has run a consultation (which closed on 27 October 2014) which sought further evidence on the impact of the government’s proposal to implement the repeal of CDPA 1988, s 52 over a three-year transition period beginning in April 2015 and ending on 6 April 2018.

In relation to legislative changes at an EU-level, it is unlikely that we will see anything concrete over the coming twelve months, although the recently appointed EU Commission has indicated that reviewing the existing copyright framework is high on its agenda and so we are likely to see plenty of activity at a policy level.

Cases

C More Entertainment—linking and the communication to the public right

The issue before the CJEU in C More Entertainment: C-279/13 is whether providing a link which bypasses technical restrictions to copyright content behind a paywall infringes copyright.

In view of Svensson v Retriever Sverige AB: C-466/12 [2014] All ER (EC) 609, the answer is likely to be ‘yes’, but it is hoped the CJEU may give further clarity on what it means by ‘freely available’ (for instance, does it take into account contractual restrictions on use, such as a prohibition on non-commercial use?) and how its earlier judgments in Svensson and Bestwater: C-348/13 are to be applied in the context of infringing content.

Art & Allposters—exhaustion of the distribution right

Where printed posters of famous art works are initially put on the market with the rights holder’s consent, and subsequently transferred onto canvas by another company without the rights holder’s consent, does this infringe the distribution right or has it been exhausted?

Advocate-General Villalón gave his Opinion in late 2014 and the CJEU’s judgment (is expected in early 2015 (Art & Allposters: C-419/13)), which will hopefully give clear guidance on the circumstances in which a rights holder’s distribution right may be exhausted.

[See news analysis: Exhausting rights of distribution for altered copyright works—canvasing the AG’s Opinion]

Oracle v Google (US Supreme Court)—right of reproduction

Although this is a US case, it will be intriguing to see whether the US Supreme Court gives Google permission to appeal the Court of Appeals’ decision in Oracle v Google in a case which raises similar legal issues to those considered by the CJEU in SAS Institute: C-406/10, with likely implications across the information and communication technology sector.

Copydan and Hewlett-Packard Belgium—private copying exception

The pending decision in Copydan: C-463/12 (on whether copyright levies are payable on memory cards used in mobile phones) should hopefully shed some light on what constitutes ‘de minimis’ harm, which sets the threshold above which a levy must be imposed. If the CJEU indicates that the ‘de minimis’ threshold is particularly low, or very likely to be exceeded by ‘every day’ copying of content, then it might call into question the decision of the UK government not to impose levies on recording devices and storage media when it introduced the private copying exception into UK law in October 2014.

Hewlett-Packard: C-572/13 is another pending decision regarding the private copying exception, and in particular the calculation of a ‘fair compensation’ to the rights holder (this time in the context of printers and photocopiers). The case also considers whether any such levy should be exclusively distributed to the authors, or whether a share could be passed to the publishers.

Pez Hejduk—jurisdiction in online copyright infringement cases

The tension between copyright’s inherently territorial nature and the capacity for copyright content to be distributed and communicated on a cross-border basis raises challenges in establishing the jurisdiction(s) in which the unlawful activity has taken place.

A key issue in this regard is interpreting the Brussels Regulation (EC) 44/2001, art 5(3) (to become art 7(2) in the Brussels Regulation (recast)) is interpreting where the ‘harmful event has occurred’ in tortious claims, such as copyright. The CJEU will hopefully provide some meaningful guidance in its pending decision in Pez Hejduk: C-441/13 and clarify its approach in view of its earlier rulings in Football Dataco Ltd v Sportradar: C-173/11 [2012] All ER (D) 211 (Oct) and Pinckney v KDG Mediatech AG: C-170/12 [2013] All ER (D) 49 (Oct).

Trends and predictions

As technology continues to develop at a rapid pace, both national courts and the CJEU will continue to have the challenging task of interpreting and applying an often outdated and unharmonised legislative framework in a way that strikes a fair balance between competing interests. For instance, it is hoped that further clarity will be provided on the scope of exclusive rights in a digital environment, in particular, the communication to the public right and the circumstances in which the distribution right is exhausted.

Of equal importance is the pressing issue of how existing copyright exceptions and limitations should be applied. Technology has revolutionised the way in which creative content is created, distributed, accessed and re-used, resulting in a lack of clarity as to what is permitted under existing exceptions (eg text and data mining, private copying ‘on the cloud’). It also leaves open the question of whether new exceptions are required to reflect new digital activities such as user-generated content and e-lending.

However, there are limits to how creatively the judiciary can interpret the existing legislative framework, and some issues require legislative intervention, particularly in relation to copyright exceptions and limitations which are currently largely unharmonised resulting in disparate levels of protection across the EU. We are therefore likely to see a flurry of policy activity in 2015, with the new EU Digital Commissioner, Günther Oettinger, recently announcing his (ambitious) intention to reform existing copyright over the next twelve months.

As at the time of writing, the Commission has not yet announced its roadmap for its 2015 work programme, but it is likely that many of its initiatives will draw on the issues raised in its public consultation on the review of EU copyright rules. In that respect, we hope to see in the coming months the final version of the Commission’s White Paper and accompanying impact assessment (earlier drafts of which have already been leaked) on how the EU copyright framework can be modernised and made ‘fit for purpose’.

That being said, Mr Oettinger has already made clear his intention to bring in an EU-wide ‘Google-tax’ requiring online search engine providers to pay a fee for displaying copyright content on their sites, as currently found in the laws of Spain and Germany.

Another focal point for the Commission will be the creation of a ‘connected digital single market’ involving (among other things) a review of the existing copyright framework with the underlying objective to generate economic growth in the EU.

Whatever the case, 2015 is likely to be another busy year for copyright and its related rights. A key challenge facing the courts and policy makers will be how to strike a fair balance among the differing interests of stakeholders in attaining a digital EU internal market. In the meantime, stakeholders involved in the creative industries will need to continue evolving their commercial practices to respond to changes initiated by the judiciary and legislators, in particular, by finding more innovative ways of monetising content.