RAAP: the obvious, the missing, the regrettable and the desirable
By Mihály J. Ficsor
In this article, a tentative analysis is made of the RAAP v. PPI judgment of the Court of Justice of the European Union (CJEU) (hereinafter: RAAP). Tentative because the Court’s rulings are very complex; so much that the commentator has also to cross a mine field of questions where great caution is needed; such as whether the Court has erred concerning certain key aspects of the case and that it even has stepped through the limits of the borderline between EU and Member States competences. The article contains four substantive titles. The titles are construed in a way that they also sum up the key findings. In this way they, with some comments, may also serve together as a kind of “abstract”. The first title is this: “Certain rulings in RAAP are responses to preliminary questions that boil down to asking the Court whether or not the text of the relevant international, EU and national norms truly read in the way they obviously do” (“the obvious”). This is reference to point 1 (if it is read alone), and in particular to point 3, of the rulings. The second title reads as follows: “There are certain conflicts of the Irish law and the PPI’s practice with the international and EU norms that are not touched upon either in the preliminary questions or in the CJEU judgment” (“the missing”). The most basic conflict of the Irish Copyright and Related Rights Act (CRRA) with the international and EU norms is that, while – under both Article 15 of the WPPT and Article 8 of the Rental, Lending and Related Rights Directive (Directive 2006/115/EC) – the right to a single equitable remuneration of performers and producers of phonograms to be paid by the users, Article 208(1) of the CRRA provides that “[a] performer has a right to equitable remuneration from the owner of the copyright in a sound recording.” PPI seemed to base its practice on this provision to reduce the role of RAAP to a mere counter to pay the remuneration to those performers to whom PPI had distributed it. It is the third title where the commentator needs great caution to address certain delicate issues. Nevertheless, under this title, this opinion is presented: “With due respect, it is regrettable that it seems that the CJEU’s ruling on the obligation to apply the right provided in Article 8 of Directive 2006/115/EC to performances and phonograms of nationals of States that are not members of the EEA and are not protected under the WPPT is not well-founded; one cannot speak about the non-application of a non-existing right as a ‘limitation’ of a right; such performances and phonograms are outside the contours of copyright and related rights (which is adequately clarified in the existing laws of the EU Member States) (“the regrettable”). It is regrettable that the Court has derived its ruling from Article 52(1) of the Charter of Fundamental Rights of the European Union which is about the general criteria of applying limitations of IP rights, because there are no right to limit in the case of not-protected subject matter; that it has intervened (and not in a fortunate way) into the regulation of a system which had been adequately established and applied by the Member States without any problem whatsoever; and that in this way it has created unexpected disruptions in well-functioning national systems to support creativity and protect cultural diversity. The fourth and last title is this: “It is desirable to make it clear in the EU law that no remuneration is due for the uses of performances and phonograms not protected in the EU; nevertheless, where a lump-sum paid by the users is still calculated to also cover such uses, (i) in the absence of EU legislative norms, the corresponding remuneration may be transferred to the foreigners on the basis of reciprocity; (ii) it may be transferred to foreigners without reciprocity; and (iii) it (as not-for-distribution remuneration) may be used in the same way as non-distributable fees, for cultural and social purposes” (“the desirable”). Both measures are necessary; that is, reestablishing the limits of international obligations and eliminating the unexpected disruption of the well-functioning forms of using not-for-distributable remuneration in certain Member States the same way as non-distributable remuneration.
Comments on the German "Discussion Draft" for non-transposition of Article 17 of the DSM Directive as adopted
By Dr. Mihály J. Ficsor
After that Germany made a long declaration on the occasion of the adoption of the DSM Directive signaling that it would not implement Article 17 of the Directive as adopted, the Discussion Draft published by the German Ministry of Justice for the transposition, inter alia, of the Directive, has not come as a surprise. If the Draft is adopted, the scope of the online content-sharing service providers (OCSSPs) to which the obligations under Article 17 apply will be significantly reduced in comparison with the definition in the Directive; the obligation of OCSSPs to make „best efforts” to obtain authorization from the rightholders as determined in Article 3(1) and (2) of the InfoSoc Directive will be replaced by „every effort” to accept licenses when offered or otherwise are available (that is, practically, zero effort); rights to remuneration will be introduced in contrast with the exclusive rights of authorization to be recognized in accordance with Article 3(1) and (2) of the InfoSoc Directive as clarified in Article 17(1) and (4)(a) of the DSM Directive; the post-blocking complaint and redress mechanism available to users as foreseen in Article 17(9) will be replaced by a post-making-available mechanism that rightholders may use, and so on. However, the notes presented in the Draft go even further by suggesting the theory that, contrary to what is provided in Article 17(1) – namely that the acts performed by OCSSPs are acts of communication and making available to the public and „therefore” they are subject to the authorization of the owners of rights as provided in Article 3(1) and (2) of the InfoSoc Directive – are not covered by Article 3(1) and (2) of the Directive on those rights but by a sui generis right. The paper is mainly devoted to rebut all allegations in detail by which the drafters try to support this theory. It is submitted that the provisions and the notes presented in the Discussion Draft are in conflict not only with Article 17 of the DSM Directive, and not only with the French – German agreement through which both parties have contributed to a compromise to make the adoption of the Directive possible, but also with the InfoSoc Directive, the CJEU case law, the WPO Treaties and probably also with the TRIPs Agreement – in contrast with the French draft law to transpose the Directive which would faithfully transpose Article 17, also in accordance with the French-German compromise, the EU law and the international norms. (The paper was originally uploaded on August 7, 2020. In this version, some minor wording corrections have been made.)
Időzavarban fogant észrevételek a SatCab és a DSM Irányelvek átültetését szolgáló törvénytervezetre
By dr. Ficsor J. Mihály
Az írásban foglalt észrevételek csupán három dolgot érintenek a magas szintű törvényhozói munkát tükröző tervezetben. Az első a SatCab Irányelv szerinti, a „közvetlen betáplálásra” vonatkozó rendelkezéseknek az átültetése, a második bizonyos, a DSM Irányelv 17. Cikke (4) bekezdésében említett állítólagosan új típusú kivételeknek (sőt még kivételnek sem számító úgy nevezett „felhasználói jogoknak”) a kezelése az Irányelv 17. Cikke (7) és (9) bekezdésének alapján, a harmadik pedig – az utóbbi kérdéshez is kapcsolódóan – a paródia és a személyhez fűződő jogok összefüggéseinek a szabályozása. Az első két szabályozási kérdés vaskosabbnak és jelentősebb hatásúnak látszik (legalább is, a szerzői jogok tényleges értéke, és különösen a szerzők terhére tátongó „value gap” szűkítése szempontjából), mégis ezekre viszonylag rövidebb észrevételek találhatók az írásban. Az elsőre a SatCab Irányelv említett vonatkozását illetően elsősorban egy, a magyar érdekek (nemcsak szűkebb szerzői jogi, de legalább annyira nyomós kulturális és gazdasági érdekek) szempontjából döntő aspektusra kívánok utalni. A DSM Irányelv említett rendelkezéseit illetően pedig már részletesen kifejtettem álláspontomat – igaz, angol nyelven – egy, az ugyanezen a webhelyen (www.copyrightseesaw) közzétett írásban. Továbbá kifejezetten ezzel a témával foglalkozik egy, az ALAI Végrehajtó Bizottság által létrehozott munkacsoport véleménye is. Az írás ugyanakkor részletesebben foglalkozik a paródia és a személyhez fűződő jogok összefüggéseire vonatkozó szabályozás kérdéseivel.
Il est plus qu'un bémol; das ist eine völlig andere Music: comments on a resolution adopted by a group of European academics to suggest a special way of implementing Article 17 of the DSM Directive
By Dr. Mihály J. Ficsor
[This is substantially the same as, but corrected and slightly modified version of, the paper originally uploaded on February 21, 2020] 1) The paper, of the great number of issues of interpretation of the provisions of Article 17 of the DSM Directive, only deals with three, mainly in reaction to a Recommendation adopted by a group of European academics; namely the questions of (i) whether or not the authorization to be obtained by the OCSSPs under Article 17(1) of the Directive may also take the form of legal licenses; (ii) whether or not the pre-blocking procedure proposed in the Recommendations would be in accordance with Article 17(9) of the Directive providing for a post-blocking effective and expeditious complaint and redress mechanism, and (iii) whether or not the second subparagraph of Article 17(7) read together with Article 17(9) and recital (70) might be understood in a way that a special category of exceptions and limitations has been established as “users’ rights” to be applied „broadly”. The Recommendations have given affirmative answers to the three questions. The paper presents the reasons for which these answers are not well justified. 2) Article 17(1) of the Directive obligates OSSCPs to obtain authorization from the rightsholders. The Recommendations suggest that it may also take the form of statutory licensing. This would be in conflict with the letter, context and objectives of the provision, since it is obviously not an authorization to be obtained from the rightholders and would not be in accordance with the unmistakably clear statement in recital (61): „righsholders should not be obliged to give an authorisation or to conclude a licensing agreement”. 3) Article 17(9) of the Directive provides for an effective and expeditious complaint and redress mechanism available to users in case of preventive blocking by virtue of Article 17(4)(b) and (c). The Recommendations suggest the replacement of this mechanism with a pre-blocking preliminary procedure to be applied by the OCSSPs when their users claim the applicability of exceptions. The works or other protected materials concerned would remain available until the rightholders succeed to prove infringements. According to the Recommendations, Article 17(4)(b) and (c) and (9) might only be applied without the need for such pre-blocking approval procedure where fully complete works or other protected materials are uploaded. The paper points out that, for reducing the scope of „over-blocking”, there is no need for such a solution in conflict with the letter, context and objectives of the provisions of the Directive. The rightsholders may (and certainly will, because the workability of the regulation is in their interests too) give instructions to exclude from the blocking those cases where the probability of exceptions is high (in particular due to the very small volume of the uses). For the identification of such cases, software solutions might also be used. Where still some „over-blocking” happened, de-blocking could be accelerated through due cooperation between the OCSSPs and the rightholders – in the framework of an expeditious complaint and redress mechanism, or even without any complaint – in a way that the freedom of expression would not be prejudiced. 4) Although the second subparagraph of Article 17(7) of the DSM Directive makes the application of certain exceptions mandatory, it does not introduce a new category of “users’ rights” to be applied “broadly”. Those exceptions, as any others, are to be applied in a balanced way – neither broadly nor narrowly – as required by the three-step test.
The rights of communication and making available to the public: key issues of implementation and application
By Dr. Mihály J. Ficsor
In 2017, my website www.copyrightseesaw.net – due to a mistake of the company which maintained it – disappeared from the Internet. It was only in July 2018 that a new company was able to regain the majority of lost data and reconstructed the site. On 26 June 2018, a number of writings previously published were uploaded again (it is the reasons for which this date appears in connection with several papers). This study was not uploaded again. However, before the collapse of the website, it had been made available – in manuscript form – to several colleagues from whom time and again I receive inquiries where it is available as a “quotable” source. Therefore, now I upload it again. It was prepared on 13 December 2016 and offers a review of the interpretation and application of the rights of communication and making available to the public as it stated at that time, with special attention to the case law of the CJEU. Inter alia, it covers the issues of the unfortunate “new public” theory and the Court’s attempts to avoid its untenable consequences from SGAE through TvCatchup to Svensson, with BestWater as an anachronism and with certain corrections in GS Media; the concept of “public”; the problem of introducing commercial gain as a condition and the mixed success to correct the error in the light of the SCF (Del Corso) - Reha Training tandem; the question of so-called online exhaustion dealt with in contra legem manner in UsedSoft and Stichting Leenrecht and correctly in ReDigi; communications where different actors play roles as in the cases of Airfield and SBS Belgium; aspects related to the application of cloud technology offering “one-by-one” access, with reference to Aereo; and the role of online intermediaries as well as “false intermediaries” performing acts of making available to the public and the way this was addressed in the draft Directive of Copyright in the Digital Single Market. The study also contains an overview on how the right of interactive making available to the public has been implemented in various countries.