Category ECJ

The European Commission’s manifesto for The Copyright Hub

As you may know, I stepped down from The Copyright Hub earlier this year, two-and-a-half years into my planned one year tenure.

The Hub is a fantastic, exhilarating, project which stands to create massive and positive change for creators. That is why it has attracted the wide-ranging support from an enormously diverse group of people, organisations, countries and businesses which you’ll see on the website. Among many other positive traits, The Copyright Hub is notable for being so far-sighted in anticipating the future needs of the internet when it comes to copyright.

I was reminded of this earlier this week, when I was taking part in a panel discussion about the new copyright package being proposed by the European Commission. It reads, in part, as if they wrote the Hub’s new manifesto.

I have rather neglected to pay proper attention EU happenings lately, because my head is down and I am totally focussed on a rather wonderful and exciting new business I’m helping to start.

But when I looked up yesterday and paid attention to the briefing which preceded our panel session, I was struck by how the proposals – particularly those on the new Publishers Right – could have been written with The Copyright Hub in mind.

The nub of it is that more people, in future, will unambiguously need permission before they use other peoples’ work. Put the debate about the principle of this to one side for a moment and what’s left is a practical problem. How to identify who permission is needed from. How to obtain it in an efficient way.

The Copyright Hub was conceived in anticipation of these needs. It connects content to its rightsholder, and automates the process of seeking and granting permission to use it.

Taken together with the recent CJEU ruling in GS Mediawhich creates new obligations on services which link to infringing material to check copyright, and the need for the Hub’s services has never been greater.

Many of the concerns and objections I heard voiced at the session yesterday were practical.

“How will sites know if content is infringing?”

“How can permission be obtained in practice?”

These are questions The Copyright Hub was conceived up to answer – and when the answer becomes a matter of a simple, background, technical process it will usher a new era of capability and value creation for the internet.

The wording of the proposed legislation is also an improvement on the past. It avoids locking the law to the current state of technology – a sin committed by the safe harbour provisions of the E-commerce Directive. That directive addressed an issue which, at the time, was impossible to imagine being solved technologically. As the technology improved, developing from impossible to tricky to trivial, the law stood still and created a gigantic legal loophole through which businesses worth billions of dollars were driven and built, at the expense of rights owners.

The proposed new law doesn’t seem to make that mistake. It uses words like “proportionate”, “reasonable” and “adequate” – all terms whose interpretation will change as technology improves.

So it sets a challenge which I hope supporters of projects like The Copyright Hub and the Linked Content Coalition will take up with relish. How quickly can they deliver the open technology needed to make what is tricky today – identifying, verifying and agreeing rights automatically – trivial tomorrow?

Doing that the right way is hard. The Copyright Hub has not taken the easy route and has determinedly pursued an open approach to delivering its technology and governance. This is, of course, the right thing to do but technology doesn’t build itself and finding the resources needed, when there will be no direct commercial return to the Hub, is no small challenge.

The progress the Hub has made despite this has been encouraging, if slower on the technical front than I (and I think others) were hoping. The demand for the Hub has been consistently high, not just in the UK. The new legislative proposals will only increase it.

To be better able to meet that demand, the Hub needs more resources to build and manage technology for itself and its stakeholders. Few projects are lucky enough to start with an unpaid, publicly funded partner to help, as the Hub was with Digital Catapult, but such support can never last forever.

If anyone has any doubt about the rationale or opportunity of the Hub, a quick glance at the Commission’s proposed new copyright reforms should lay it to rest.

The Commission is saying that a more permissioned internet is coming. Those who have had a free-ride are going to have their freedoms curtailed a little bit, will need to ask first. Since the seeking and giving of permission has been the foundation of the whole creative economy, the importance of this is profound.

It will lead to value creation and opportunities that extend well beyond the creative sector. But that growth will be, in part, limited by the state of the art of technology for identifying rights and negotiating permission. A manual, unreliable, untrustworthy process won’t be “reasonable”, “proportionate” or “adequate”.

So the impact that these changes can deliver in practice are in the hands of the creative sector and projects like The Copyright Hub and the Linked Content Coalition which they have sponsored with such foresight.

I thought when I started working on the Hub that the long haul towards an improving legislative environment online was going to be an awful lot longer. I imagined that we would have to build, implement and prove the technology in advance of being able to attract the attention of the law makers.

Despite some people thinking I was a wild optimist, it seems I was not not nearly optimistic enough. The most frustrating moments working on The Copyright Hub came when dealing with people who just couldn’t understand why it mattered or would help, who didn’t believe the status quo would ever change.

Now is a moment to for all of them to share my renewed, buoyant optimism that the status quo isn’t “locked in”. Legislative, as well as technological, change is not just possible but imminent – no doubt influenced by the great strides already taken by the Hub and other projects.

It would be an awful shame if the technology, having had such a great head-start, was overtaken by the legislation. Or the UK by other countries.

So… chequebooks out, everybody! If you care about the future health of the creative sector, the Hub is a huge asset. It needs your money and your work to implement its vision. This opportunity is bigger and sooner than we could ever have hoped.

Support The Copyright Hub! Its time is now…

The CJEU goes bonkers again…?

I am very much not a fan of the European Court of Justice and their whimsical way of making up laws which bear little relation to anything actually legislated.

Last week they were at it again, “banning” open wifi hotspots because they make copyright infringement too easy. The court said that if users need a password, and hotspot owners record their identity, copyright infringement will be reduced.

I am wondering if this time they accidentally got it right.

I’ve written before about the problem with safe harbour laws which protect service providers on the internet by absolving them of any liability for the users of their services.

The intention of this was understandable – why should someone be liable for something they cannot have any knowledge of – like copyright infringement, for example?

But the effect was catastrophic. It led to the absurd fandango of “notice and takedown” whereby copyright owners have to try to police the whole internet and then send notices to service providers to remove content.

The value of this, almost literal, get-out-of-jail-free card is shows in the fact that Google claims, at the time of writing, to have removed 1.79Bn URLs from search in response to these notices. This is a gigantic undertaking yet they still prefer this way of working to anything more sensible which might prevent infringing content appearing in the first place.

The problem with safe harbours for me has always been that they only do half the job. Sure, fine, fair enough, don’t make service providers liable for something they didn’t do (although in other areas of the law – nightclubs for example – service providers have exactly this liability). The liability, in copyright safe harbour regimes, is firmly with the person who did the bad thing in question.

Unfortunately, although service providers can use the law to put their hands out and say “not my fault, guv”, they are usually unable to point to the person whose fault it is – their customer, the person to whom they provided a service and who used it to do something illegal and who is liable in law for their actions. Even if they can, they will frequently make it as difficult as possible to discover.

So the safe harbour, while trying to limit a risk (which, at the time the law was written might have seemed unmanageable – although current technology makes it a simple matter), actually creates a thick shield behind which pretty well anyone can do pretty much any infringing they like, safe in the knowledge that there will, with vanishingly few exceptions, be any consequences at all. In practice the worst outcome will be that the infringing content get removed.

Copyright infringement is thus a zero cost, zero consequence activity on the internet thanks to safe harbour laws.

Many businesses have been founded to take advantage of this loophole and many fortunes have been made – just not by copyright holders who provide the raw materials.

I’ve always thought that safe harbour laws could be hugely improved if, in order to get the legal protection from liability, the service provider needs to have made at least some effort to be able to identify the person who is actually liable – the user. In return for immunity, they would have to be able to lift the anonymity of the alleged wrong-doer. Again, not unprecedented.

And, as far as wifi hotspots are concerned anyway, the CJEU seems to agree.

The court might have come up with a rather clumsy and faffy way of doing it but this is a change which, if applied more broadly to the copyright safe harbour, would go a very long way to re-balancing the internet and restoring creativity to its proper place near the top of the internet value chain.

So I find myself in the unaccustomed position of agreeing with the CJEU on one of their copyright rulings. It won’t last.

Strange things happen in courts

This is odd.

The Supreme Court has handed down its judgement in the endless NLA case, and it’s a little strange.

They have also referred the case on to the European Court of Justice, to ensure that the agony is prolonged a little longer.

Among the many oddities is that this judgement, weird though it is, has little bearing on the original case. The big issues, already decided, have not been challenged. What the Supreme Court was left with was a tiny thin sliver of an issue, a hair already split so finely it seemed incapable of any further subdivision.

As it turns out that was wrong, and so as well as reversing the judgement of the lower courts on this issue (and in my view also the intent of the law) it has opened up a new, gaping, hole in the governance of the internet and the ability for copyright law to have meaningful effect online.

The question, focuses on an exception to copyright, created in the European Copyright Directive, which authorises certain kinds of “temporary copies” which are made as content travels across the internet. I have written about it before, so for background suggest you read that piece.

The exception was created to avoid a situation in which the copies made, for example, in a router as it passes data from one machine to another, were infringing and therefore became the focus of legal actions or problems. The narrow nature of the exception can be seen in its wording:

1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.

Not many things pass all those tests. See my previous article for more thoughts on that.

Jonathan Sumption, the judge who wrote the ruling, thinks otherwise.

Many lawyers have been paid many pounds to argue about the assertions and interpretations he makes, so suffice to say for now that they’re not accepted universally, least of all by me in the context of the conversations I was involved with when article 5.1 was being drafted and debated. I will return to them in more detail later.

Perhaps his most telling comment is in his clause 36. “This seems an unacceptable result”, he says, in reference to the possibility that the law makes certain things illegal. It suggests he has swallowed the nonsensical and scare-mongering “browsing is illegal” rhetoric whole. But if judgements are to be made, in part, based on what a judge thinks “seems acceptable” in the law, then surely that judge could find a better career in politics, writing and passing laws.

Lord Sumption has constructed his own convoluted route through the arguments and case law, his own analysis of some of the technical matters and arrived at a startling and – to me – wrong-headed and perverse conclusion that article 5.1 offers few practical restraints or limits to the consumption and use of infringing material online.

The law is written to say that in limited circumstances a very tiny exception to copyright law is created. Sumption’s judgement broadens those circumstances to include almost any activity by end-users on the internet.

My immediate question is what, in that case, he thinks all those words and conditions in 5.1 actually restrict? If the article’s purpose is not the one that is described in its recitals, and apparently made explicit in its wording, and debated endlessly prior to its introduction, what is its practical effect and purpose?

The usual disclosure, I am a former Chairman of the NLA

Football DataCo loses again

Some more good news from the courts.

Football DataCo has lost its latest case in the ECJ relating to their efforts to protect football fixture lists.

This has been going on and on for years, and when it all began I took a close interest due to my job at the time managing IP for a big newspaper group which wanted to use fixture lists but didn’t see why it should pay for providing millions of pounds worth of publicity.

In the original case DataCo was claiming that anybody who wanted to use football fixture lists, or information from them, needed a licence, because the lists were a database and therefore covered by database rights.

The ECJ, in 2004, disagreed and said that database rights did not apply in the way that DataCo claimed. This was important quite broadly because it, quite rightly in my view, effectively set quite a high bar for database rights protection.

This caused some problems for a number of sports who had built their commercial model on being able to licence data to, in particular, betting companies.

Prior to the judgement it was generally accepted that database rights applied to almost anything (at one stage I remember claims that the names and numbers of players were protected and couldn’t be used without a licence).

DataCo, always chipper, decided that despite the ruling the ECJ was still wrong and so they started to start another lawsuit to try to assert their rights again, this time claiming copyright instead of database rights. This always seemed rather tenuous to me, because the amount of creativity and originality involved in writing a list of teams, dates and venues doesn’t seem huge.

They sued a number of people including Yahoo who, to their credit given that this is hardly their core business, saw it through. Amazingly the ECJ took the case for a second time. And last week they rejected it.

There may be many in sport wailing about this because it is the ambition of most sporting bodies to claim a share of any money anybody makes from any activity linked with their sport, and this makes that a lot harder.

Betting, in particular, provides an important revenue stream for many sports which is only possible if the sport can find a legal basis for making a charge (or, of course, by negotiation, since both sides have something to lose as well as gain from the other).

However it’s good news for common sense. If the law makes such small fragments of factual information licensable it is seriously altering the balance of IP laws which have always done quite well at protecting creativity while leaving facts unfettered.

So, three cheers for this ruling and a big pat on the back for the litigants who were dragged through it by DataCo and who saw it through.

 

Disclosure: In my previous role I was responsible for negotiating with Football DataCo on this and other issues. In my current role I have been involved in negotiating with them about different matters on behalf of media groups.

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