Publications
European IP Bulletin, Issue 19, February - Copyright
Copyright
3. P2P Music Copyright Cases From Norway, Germany, Korea & US
Following the Napster ruling, courts around
the world are redefining the rules regarding file sharing P2P services and their
members. The critical questions relate to service provider liability and whether
the service providers have the obligation to disclose the identities of their
users.
Several P2P music copyright cases have recently been decided in a number of
jurisdictions, notably Norway, Germany, Korea and the United States. However,
the various courts have not adopted the same principles.
In Norway, the student who established the napster.no website was ordered by the
country’s Supreme Court to pay compensation to the Norwegian music industry. The
student set up the website as part of a school project. The website was only
operational for 2-3 months and, at its peak, it was only providing links to
around 170 files. The amount of compensation ordered was 100,000 kroner
(£8,000). The Norwegian Music industry considers the case to be very important
for the future of the internet as a distribution medium.
In a similar case, in the South Korean Appellate Court, the owners of the
website Soribada were acquitted of copyright infringement. The site allowed
users to exchange music files and download them to their computer. The court
found that though the activities of site users constituted copyright violation,
the owners did not themselves commit copyright infringement, and they were held
not to be responsible for the copyright violations committed by the users of the
site. However, in a different ruling on the same day, the Seoul High Court said
Soribada helped site users infringe on copyright and ordered it to shut down its
file-sharing software and its three computer servers, upholding another lower
court’s decision.
In the US and Germany, the courts have rejected the music industry’s requests to
order Internet service providers to identify their subscribers who are suspected
of illegally offering downloads of music files on the internet. The German
courts have taken the view that service providers are only providing technical
access to internet and have no obligation to supervise the content, and, if they
have actual knowledge of an infringement, they are only obliged to block access
to the infringing material. Similarly, in the US courts, the Court of Appeals
for the Eighth Circuit refused to widen application of the provision of the
Digital Millennium Copyright Act concerning infringing materials stored on
Internet Service Providers’ servers. A wider application would enable anyone
claiming to be a copyright holder to file subpoenas to find out the identity and
home address of any Internet user.
There has been no final word about regulating music file-sharing services. There
is much pressure from various parties to make some further changes to copyright
laws in respect of P2P services. It may be observed that businesses that are
infringing copyright and other laws may find more favourable jurisdictions to
place their servers.
4. Copyright Levy To Be Applied To All German Computers
The District Court of Munich has ordered that Germany’s largest
computer manufacturer, Fujitsu Siemens, must pay a levy of 12 euros
for every new computer sold in Germany. The decision follows an
action brought by the VG Wort rights society, which was seeking the
levy in order to compensate rights holders for loss of royalties
caused by private copying of music, images and films by PC.
This decision makes Germany, which already imposes a levy on
analogue copying devices such as blank video and audio cassettes,
the first European country to impose a copyright levy on PCs. VG
Wort plans to apply the decision to all German PC vendors. However,
Fujitsu Siemens has said that it is considering appealing against
the decision and is also petitioning the German government (which is
currently debating the country’s copyright law) to review the role
of VG Wort in the new digital environment.
It should be noted that this levy is not a licence to infringe –
private users will still be infringing copyright if they use their
PCs to make illicit reproductions.
5. Spain, Portugal and Ireland Before the European Court of Justice Over The Public Lending Right
In December 2004, the European Commission decided to refer Spain, Ireland and Portugal to the ECJ for their failure to properly implement Council Directive 92/100/EEC (on rental rights, lending rights and certain rights related to copyright in the field of intellectual property).
The Directive aims to balance the Internal Market with the needs
of Member States to promote their own cultural objectives (see IP/02/1302). Failure to properly implement the Directive is liable
to cause discriminatory protection of the authors’ works within the
European Union.
Articles 1 and 2 of the Directive grant rights holders exclusive
rental and public lending rights. Article 5 introduces the
remuneration right and grants the Member States the flexibility to
determine the level of remuneration to be paid for the public
lending right. It also allows them to exempt some categories of
lending institutions from both the exclusive lending right and
remuneration right. The Commission found that Spain, Ireland and
Portugal had not applied Article 5 of the Directive and had exempted
all public lending institutions from paying any remuneration for
public lending.
In a similar case (C-433/02), the ECJ ruled against Belgium who, as a result, implemented the 1994 law on the public lending right. France implemented the public lending right when it was referred to the ECJ. Italy and Luxembourg have also been spared for the moment as they take measures to align their national laws with the Directive. Sweden and Finland have also received notices from the Commission as they have applied the provisions selectively (the right of remuneration is only applied to works written in Swedish and Finnish respectively). Portugal has also failed to properly implement the rental right by including a new category of right holders to the exhaustive list provided by Article 2 of the Directive.
The action by the Commission is important as it emphasises the need to harmonise the laws in the field of copyright and related rights, especially with regard to public lending and rental rights. With the ECJ decision against Belgium, the pending cases against Spain, Portugal and Ireland, and the formal notices against Sweden and Finland, the Member States who have not fully or properly implemented the Directive will be next in the Commission’s firing line.
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