CONTROVERSIAL DRAFT COPYRIGHT LEGISLATION PUBLISHED - IT'S NO "SOPA"

The Minister for Jobs, Enterprise and Innovation has this afternoon published controversial draft Regulations to address the perceived lacuna in Irish Copyright law, originally flagged by Mr. Justice Charlton in the case of EMI v UPC (also see Davinia Brennan's blog below for another take on this!). The draft Regulations provide for that copyright owners may seek injunctions against intermediaries (which would include internet service providers). Subsection 5A(a) to be inserted at Section 40 of the Copyright and Related Rights Act 2000, would provide as follows:

        “The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001[1] on the harmonisation of certain aspects of copyright and related rights in the information society applies” 

The draft legislation is unspecific as regards the precise nature or scope of injunction which a court might be entitled to grant as against an intermediary service provider. However, as I have previously blogged, the European Court of Justice has already stated that injunctions of the sort which oblige service providers to filter and block internet sites which are permitting unlawful downloads may not be permissible under European law.

 

The only guidance offered for a court in the draft Regulation is in subsection 5A(b) which states that:

             "In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the court shall give such directions (including, where appropriate, a direction requiring a person be notified of the application) as the court considers appropriate in all of the circumstances 

It would appear therefore that where an injunction is sought either the individual who will be affected or the website, company or business that may be affected by the application could be notified of the injunction application and the court would have to consider the rights of those persons more generally when making a determination.  

These new Regulations are a long way from being as wide reaching as SOPA legislation in the US. In effect the Regulations would hand back the job of defining the limits of Irish copyright law, in relation to online piracy, to the Courts. Therefore, realistically there will still be a lack of certainty surrounding the scope of this legislation, should it be passed into law, until a case comes along that will tests its limits.

Minister publishes draft Copyright legislation

Minister Sherlock has, today, published the draft European Union (Copyright and Related Rights) Regulations 2012, which are expected to be signed imminently. Minister Sherlock has strenuously denied claims that the proposed legislation mirrors the Stop Online Piracy Act (SOPA) in the United States, stating that such claims “are not based on fact”.

The draft Regulations are, in fact, brief and to the point. They amend the Copyright and Related Rights Act 2000 (the 2000) Act), by explicitly providing for the right of a copyright owner to apply to the High Court for an injunction against an intermediary whose services are used by a third party to infringe their copyright or related right. 

This right is already available in all other Member States of the EU, as two EU directives (the Copyright Directive 2001/29/EC and the Enforcement Directive 2000/31/EC) specifically require that copyright holders are in a position to apply for such injunctions.

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European Commission publishes its legislative proposals for reform of the Data Protection Directive

The European Commission has published its proposals to reform the EU's Data Protection Directive (95/46/EC).

The proposed Regulation, unlike the 1995 Data Protection Directive, which gives Member States a wide discretion in respect of its implementation, will be directly applicable once implemented. The Vice President of the European Commission, Viviane Reding, has said that the implementation of a single set of rules on data protection, valid across the EU, law will do away with the current fragmentation and costly administrative burdens. 

Under the new proposals, multinational companies will be regulated in a ‘one-stop shop’. Companies will only have to deal with a single national data protection authority in the EU country where they have their main establishment. At the moment, businesses are supervised by a different authority in each Member State in which they carry out data processing activities.

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CJEU confirms IP addresses are "Personal Data"

As we reported recently, the CJEU held in Scarlet Extended SA (“Scarlet”) v Societe belge des auteurs, compositeurs et editeurs (“SABAM”), Case C-70/10 that an order requiring a Belgian internet service provider to filter certain peer to peer files is not permissible under EU law. The CJEU found that any national measures to protect copyright must “strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures”.


This case is also noteworthy for its landmark decision that internet protocol addresses constitute “protected personal data”.  The CJEU held that the injunction sought, requiring installation of the contested filtering system, “would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.”
 

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The Top 11 of 2011

A rundown of our top eleven IP & Technology stories of 2011:

ICANN's Move to Allow For New Domain Names

On 20 June, the Internet Corporation for Assigned Numbers and Names (ICANN), the organisation that oversees Internet domain names, voted overwhelmingly in favour of one of the biggest changes in the web’s history, allowing a major expansion in the range of web suffixes available for registration.

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Clarification of ISP responsibility for Internet File Sharing

The ECJ has, in a judgment released today (Scarlet Extended SA (“Scarlet”) v Societe belge des auteurs, compositeurs et editeurs (“SABAM”), Case C-70/10), indicated that an order requiring a Belgian internet service provider to filter certain peer to peer files is not permissible under EU law.

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Ireland Implements New E-Privacy Laws on the Use of Web Cookies

Ireland has transposed the new E-Privacy Directive 2009/136/EC. The Directive amends the E-Privacy Directive 2002/58/EC and has attracted much attention due to the new rules it imposes in relation to the use of internet cookies.

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Challenges facing the Copyright Review Process

I have been mulling over the review of Irish copyright law recently announced by the Minister for Jobs, Enterprise and Innovation Richard Bruton. This is a commendable initiative and it is reassuring to see that that it has been staffed by a review committee (chaired by Dr. Eoin O’Dell, a lecturer at Trinity College Dublin and blogger) with expertise in the copyright field.

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Data Protection - The Article 29 Working Party issues Opinion on the definition of "consent"

The EU's Article 29 Working Party has issued an Opinion on the definition of "consent" in which it examines the individual elements and requirements for consent to be valid under the Data Protection Directive (95/46/EC) and the e-Privacy Directive (2002/58/EC). The Opinion also includes recommendations for improving the concept of consent in the context of the ongoing review of the Data Protection Directive.

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BRENNANS - CONFUSING BROWN BREAD!

For the later part of this year, I have been watching with great interest (partly due to a fondness for the subject matter) the passing off case involving bread makers McCambridge’s and Brennans. McCambridge’s sued Brennans claiming deliberate copying of its brown bread packaging which would cause confusion within the market.

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CJEU Rules that Unified Patent Litigation System is Incompatible with EU Treaties

You might recall that last April we wrote about the long awaited opinion from the Court of Justice of the European Union (CJEU) on the European Council’s draft agreement establishing a new European and Community Patent Court (Patent Court). That opinion was finally issued in March with the CJEC ruling that the draft international agreement put forward by the Council is incompatible with EU Treaties.

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Reform of the EU's Data Protection Directive expected in early 2012

The Vice President of the European Commission and EU Justice Commissioner, Viviane Reding, recently issued a statement regarding the proposed reform of the Data Protection Directive (95/46/EC), indicating the proposal will be published in early 2012.

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Copyright in Sound Recordings Extended to 70 Years

A new EU Directive extending the term of copyright protection in sound recordings from 50 years to 70 years has been recently passed. The ultimate aim of the new Directive is to help bridge the gap between the level of copyright protection given to authors and composers (70 years after their death) and that previously afforded to performers (50 years after the date of the initial performance). Colloquially it has been referred to as “Cliff Richard’s Law” because of this promise to ensure veteran rockers continue to earn royalties into their old age.

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Clarification from the ECJ on IP Infringement Control in E-Commerce

A recent ruling by the European Court of Justice (ECJ) on 12 July 2011 in the L'Oreal v. eBay case is an interesting one as it goes some way toward clarifying the law with regard to IP infringement control in the area of e-commerce.

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Report on Data Breach Notifications in the EU

The E-Privacy Directive (2009/136/EC), which formed part of the EU telecommunications regulation reform package passed in November 2009, makes it mandatory for public communications providers (i.e. ISPs and telcos) to inform national authorities of any data security breaches. Member States have until 25 May 2011 to transpose this Directive.

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Latest evolutions in the EU and US Patent Systems

After 30 years of negotiations, the Council of the European Union and the European Parliament agreed on vital elements of a European unitary system of patent protection this year.

The proposal, allowing for the creation of a unitary patent protection, will give rise to two regulations (one of which will deal with the controversial issue of translations) and one international agreement creating the European patent court. A statute for the unified patent court is also in draft form currently.

The proposal aims to reduce the costs and uncertainty of enforcing patents across national borders. The unified court will have exclusive jurisdiction over civil litigation related to infringement and validity for both the "classical" European patents and the European patents with unitary effect, with the main objectives of reducing costs relating to multiple litigations in several countries and preventing conflicting judgments. The court will also be able to request preliminary rulings on points of law from the EU courts in the same way that any Member State court can.

However one notable sticking-point remains.

The cities of Munich, London and Paris are all vying to be the seat of the new patent court. It is expected that the European Parliament will vote on the proposal in the beginning of next year.

After many years of debate, on 16 September 2011, the United States has adopted the Leahy-Smith America Invents Act (AIA), which moves the US patent system closer to the European one.

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Legislating for a Copyright "Loophole" in 2012

The Department of Jobs, Enterprise and Innovation has indicated that a new piece of legislation will be published early in the new year to address the perceived loophole in Irish Copyright Law which was said to exist in the wake of the EMI v UPC case (reported at : www.bailii.org/ie/cases/IEHC/2010/H377.html.

It is surprising that this move appears to come before the release of the much anticipated Copyright Law Review Group report, which was a Government born initiative.

You may recall that in the EMI v UPC case, Justice Charlton in the High Court held that Irish copyright law did not provide for any kind of injunctive relief which permitted the blocking or filtering of websites on the Internet.

 

Accordingly, internet service providers could not be obliged by the Courts to block sites like “The Pirate Bay” where users can use file sharing software to unlawfully download copyright materials.  

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"Counterfeit Goods" - Just Passing Through

Council Regulation 1383/2003 (the Regulation) permits customs authorities to take certain actions where goods entering the European Union (the EU) from non-member states are suspected of infringing intellectual property rights recognised in the EU. This includes suspending release of, or detaining the goods. Under the Regulation, such goods include, amongst others, counterfeit goods (goods infringing a trade mark right), pirated goods (goods infringing copyright or related right or design rights) and goods which infringe a patent under the law of the member state whose customs authorities are seeking to take action.

The Court of Justice of the European Union (the CJEU) has recently ruled that goods which are imitations of goods protected by a trade mark right, copies of goods protected by copyright or a design under EU or Member State law and which have originated from a non-member state cannot be classified as “counterfeit goods” or “pirated goods” under the Regulation merely on the basis that they have been temporarily imported into the EU while en route to another non-member state. Such goods will be classified as “counterfeit goods” or pirated goods” only where it is proven that they are intended to be put on sale in the EU.

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BRENNANS - CONFUSING BROWN BREAD!

For the later part of this year, I have been watching with great interest (partly due to a fondness for the subject matter) the passing off case involving bread makers McCambridge’s and Brennans. McCambridge’s sued Brennans claiming deliberate copying of its brown bread packaging which would cause confusion within the market. You might wonder what sparked such action. The matter seems to have arisen after Brennans changed the design and colour of its packaging in January 2011, adopting a transparent, resealable packaging with a dark green rectangle on the front of the packaging and McCambridges’ claimed that this re-branding would result in confusion amongst its own customers.  Would you be confused, see for yourself:

                             

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Intellectual Property Rights Protection, China

The modern Intellectual Property Rights (IPR) law system was born out of China’s need to develop its market economy in the early 1980s. Within the past three decades China has built up a relatively comprehensive and advanced Intellectual Property Laws and enforcement procedures.

General Legal Frame

To date, China has introduced and enacted legislation in the following areas:

1. Trade Marks: PRC Trademark Law (implemented as of 1 March 1983, last amendment in 2001);

2. Patents: PRC Patent Law (implemented as of 1 April 1985, last amendment in 2008);

3. Copyright: PRC copyright Law (implemented as of 1 June 1991, last amendment in 2010)

4. Software: Regulations on the Protection of Computer Software (implemented as of 1991);

5. Unfair Competition: Anti-unfair Competition Law (implemented as of 1993);

6. Customs: Intellectual Property Customs Protection Regulations (implemented as of 1995);

7. Integrated Circuits: Regulations on Protection of Integrated Circuit Layout Design (implemented as of 1995);

8. Plant Varieties: Regulations of Protection of New Plant Varieties (implemented as of 1997); and

9. IP Offences: Introducing Crimes of Infringing upon Intellectual Property Rights into PRC Criminal Law (implemented as of 1997).

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Commission Invites Views on Technology Transfer Regulations

The Commission has invited interested parties to make submissions to it regarding EU competition law rules for the assessment of technology transfer agreements, i.e. patent, know-how and software licensing. The current regime consists of a block exemption regulation ("TTBER") that create a safe harbour for certain agreements, as well as on the assessment of agreements that fall outside the TTBER. The current TTBER exempts certain agreements that are considered to be non-problematic from a competition law perspective under European law. To qualify for an exemption, agreements need (i) to produce positive effects which outweigh the restrictions inherent in the agreement and (ii) be concluded either between rivals who have less than 20% market share or between non-competitors who have less than 30% market share. The TTBER also defines certain hardcore restrictions, which never qualify for an exemption, such as fixing of prices charged to third parties.

The current TTBER will expire in April 2014 and the Commission is seeking input on the proposal for assessing technology transfer agreements after this date.

The Commission has published a questionnaire to facilitate initial engagement with relevant interested parties.  It is crucial that Irish industry players, particularly in the technology and pharmaceutical sectors, engage in this process in order to ensure their interests are represented at a European level and in order to share their unique experiences in the technology transfer arena.

Reform of the EU's Data Protection Directive expected in early 2012

The Vice President of the European Commission and EU Justice Commissioner, Viviane Reding, recently issued a statement regarding the proposed reform of the Data Protection Directive (95/46/EC), indicating the proposal will be published in early 2012. The proposals contained in the new legislative package, which is intended to fix weaknesses in the current data protection framework, include:

·         A 'one-stop-shop' for businesses and consumers when it comes to data protection matters - one law and one single data protection authority for each business; that of the Member State in which they have their main establishment. Under the current data protection regime, companies that operate in several Member States must comply with different laws and different decisions taken by data protection authorities in 27 Member States. A non-European company operating in the European Union has to abide by 27 different interpretations of the EU law on data protection. 

·         Making the binding corporate rules simpler to use, with a single point of contact for companies amongst the European data protection authorities. Once the binding corporate rules are approved by one data protection authority, they should be recognised by all European data protection authorities, without the need for additional national authorisation in case of further transfers.

·         Cutting red tape by eliminating unnecessary costs and administrative burdens to create a more business-friendly regulatory environment. This means doing away with the general requirement to notify data processing to data protection authorities.

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Social Media Contracts

A recent decision (Ardis Health LLC et al. v. Nankivell)of the U.S. District Court for the Southern District of New York dated 19 October 2011, provides a good insight into the best practices for parties contracting in the social media space.

 

“Social media” refers to any online medium that includes community features such as user-generated content, the ability to form groups and the ability to recommend, comment on, and share the content of others. Examples include Facebook and Twitter.

The plaintiffs in the proceedings were three companies that market online herbal and beauty products. The three plaintiffs are wholly owned and collaboratively operated by Jordan Finger. The defendant was hired by one of the plaintiffs, CYC, as a “Video and Social Media Producer”. The defendant signed a Work Product Agreement that provides that work created and developed by the defendant “shall be the sole and exclusive property of CYC, in whatever stage of development or completion”, and that it ”will be prepared as ‘work-for-hire’ within the meaning of the Copyright Act”. The agreement also provided that the defendant return all confidential information to the plaintiffs upon request, and that “actual or threatened breach of the agreement will cause irreparable injury and damage”.

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Commission Proposal to Establish a European On-Line Dispute Resolution Platform

The European Commission published today a package of legislative proposals in a bid to ensure that all EU consumers can resolve disputes with traders without recourse to the courts. The proposal envisages that the European Parliament and the EU Council will adopt a Directive which requires Member States to ensure that competent alternative dispute resolution entities (“ADR entities”)will be available throughout EU to which consumers may refer any contractual dispute with a trader.

The package also includes a proposal for a Regulation to establish an EU-wide online platform to facilitate the resolution of disputes related to the cross-border online sale of goods or provision of services between a consumer and a trader. It is proposed that this online platform will automatically send the consumer’s complaint to the competent national ADR entity and facilitate the resolution of the dispute within 30 days.

In support of the new proposals, John Dalli, the Commissioner for Health and Consumers stated “Once adopted, the proposals that I am putting forward today, will help European consumers to use easy, quick and inexpensive ways to sort out their problems, wherever and however they purchase a product or service in the EU”.

The European Parliament and the EU Council have committed to adopting the package by the end of 2012 and it is anticipated that Member States will have taken measures to ensure competent ADR entities are in place by mid 2014, with the single EU-wide platform for online dispute resolution becoming fully operational six months later.

Clarification of ISP responsibility for Internet File Sharing

The ECJ has, in a judgment released today (Scarlet Extended SA (“Scarlet”) v Societe belge des auteurs, compositeurs et editeurs (“SABAM”), Case C-70/10), indicated that an order requiring a Belgian internet service provider to filter certain peer to peer files is not permissible under EU law.

The cour d’appel de Bruxelles referred questions to the ECJ following an appeal from a decision of the Tribunel de premiere instance in which Scarlet was ordered to implement filtering technology to prevent unlawful file sharing on its network. The question referred to the ECJ was, in particular, relevant to the interpretation of the Directive 2000/31/EC (the “E-Commerce Directive”), Directive 2001/29/EC (“the InfoSoc Directive) and Directive 2004/48/EC (“the Enforcement Directive”) and whether the provisions of these Directives permit Member States to authorise national courts to “issue injunctions against intermediaries whose services are used by a third party to infringe a copyright or related right”.

Both the InfoSoc Directive and the Enforcement Directive provide that intellectual property rights holders may apply for an injunction against intermediaries such as ISPs whose services are being used by a third party to infringe their rights. The ECJ held that it was a natural corollary of this that national courts could order ISPs to prevent future infringement. However, the Court held that any implementation of the InfoSoc Directive and Enforcement Directive should not affect the provisions of the E-Commerce Directive and more particularly the provisions of that Directive that relate to the “mere-conduit”, “caching” and “hosting” defences which can be relied on by Internet Service Providers and furthermore, the provisions of Article 15 which state that no general internet network monitoring obligations can be imposed on ISPs. 

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