Archive for the ‘making available right’ category

Mihály Ficsor on Svensson and communications to the public

May 11th, 2014

The Svensson opinion of the CJEU has gained considerable attention. The focus has primarily been on the controversial topic of whether hyperlinks to a work on the Internet should be considered as making the work available and hence be part of the author’s right of communication to the public. However, the opinion also further extends precedents of the CJEU how to determine whether communications are “to the public”. In a seminal paper, Dr. Ficsor the former Deputy Director General of WIPO carefully examines these precedents and points out errors in the opinions. A summary of his paper is below.

Blocking orders against ISPs legal in the EU: UPC Telekabel Wien

March 30th, 2014

European courts have ordered ISPs to block access to pirate file sharing sites in other countries for years. The jurisdiction for doing so is Article 8(3) of the EU Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001) which is transposed into the laws of EU Member States. The courts have considered these orders to represent a reasonable balance between the interests of copyright holders, intermediaries, and end users. See, Keeping The Pirate Bays at Bay.

Aereo infringes says international associations and copyright scholars to SCOTUS

March 3rd, 2014

Earlier today, a number of international and foreign associations and copyright scholars filed an Amicus brief in the Supreme Court of the United States in the ABC, Inc. et al v. Aereo, Inc case. The brief brings to the attention of the SCOTUS a number of international treaties and trade agreements respecting copyright that impose obligations on the United States to provide copyright holders with a broad technologically neutral communication to the public right that would cover all aspects of Aereo’s service and make its service infringing.

When hyperlinks infringe copyright: Svensson v Retriever Sverige

February 13th, 2014

Earlier today, the CJEU released an important decision on whether the making available right gives copyright holders a right to authorize the use of hyperlinks to copyright content. In Case C-466/12 Svensson v Retriever Sverige AB, (13 February 2014) the CJEU ruled that an ordinary “clickable” hyperlink makes a work available to the public. However, if the link is to a publically available portion of a website used by the rights holder to make work available to the same public as the link, it is not made available to a new public and the right is not infringed.

Copyright law 2012: the year in review in Canada and around the world

January 11th, 2013

Yesterday, I gave a talk at the Law Society of Upper Canada’s 17h Annual Intellectual Property Law: The Year in Review program. My talk canvassed developments in copyright in Canada and around the world in 2012. My slides are shown below. The associated paper prepared in collaboration with Glen Bloom, with the help of others, is available here.

The following copyright cases from Canada, the USA, UK and Ireland, Australia, and  Europe are dealt with in the paper and slides.

Canada

Adobe Systems Incorporated v. Dale Thompson DBAAppletree Solutions, 2012 FC 1219

Aga Khan v. Tajdin, 2012 FCA 12

Change and the Copyright Modernization Act

November 7th, 2012

Bill C-11, the Copyright Modernization Act, with a few exceptions, is now law with the publication of the Governor General Order in Council. The fourth attempt to amend the Copyright Act since 2005 succeeded where Bills C-60 (2005), C-61 (2008), and C-32 (2010) did not.

A lot has changed since 2005 when Bill C-60 was first introduced. That Bill would have made a limited, but important, set of amendments. Its summary reminds us that it would have amended the “Copyright Act to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, to clarify the liability of network service providers, to facilitate technology-enhanced learning and interlibrary loans, and to update certain other provisions of the Act.”  Bill C-11 addresses far more than this.

Understanding Flava Works v myVidster: does inline linking infringe copyright?

August 8th, 2012

Last week, the U.S. Seventh Circuit Court of Appeals released its opinion in the  Flava Works, Inc, v Gunter dba myVidster 2012 WL 3124826 (7th.Cir. Aug 2, 2012) case. The central issue was whether Flava Works, the owner of copyrights in videos, was entitled to a preliminary injunction against the social video bookmarking service myVidster. The injunction which had been granted by the District Court was vacated.

The Supreme Court rules on copyright

July 12th, 2012

Earlier today, the Supreme Court released reasons in the five copyright appeals heard back to back on December 6 and 7, 2011 in the following cases:[i]

Keeping The Pirate Bays at Bay

February 22nd, 2012

The UK High Court appears likely to order UK ISPs to block the notorious BitTorrent site, The Pirate Bay. In the just released opinion in the Dramatico Entertainment Ltd & Ors v British Sky Broadcasting Ltd & Ors [2012] EWHC 268 (Ch) (20 February 2012) case, Justice Arnold ruled that users of the site as well as its operators infringe copyright. Users who download copies of sound recordings violate the right of reproduction. Users who make sound recordings available for downloading make them available to the public and are liable for communicating the sound recordings to the public. The Pirate Bay is liable for authorizing the infringement of its users. It is also liable for infringement based on the accessorial liability theories of joint infringement and inducement.

Do linking sites infringe copyright?

January 18th, 2012

A UK judged ruled on Friday that the 23 year operator of the TVShack.net linking website could be extradited to the US to face a trial for alleged criminal copyright infringement. In rendering the decision the UK court made some important findings about the scope of UK copyright law. They included the ruling that organizing and providing hyperlinks to infringing content from a linking website can infringe the making available right.