Conflict of the Canadian legislation and case law on fair dealing for educational purposes with the international norms, in particular with the three-step test
By Mihály J. Ficsor
This paper was uploaded originally on August 23, 2018. At a hacker attack, it was removed; it is now uploaded again. In 2000, within about four months, two WTO panels interpreted the three-step test – as provided in Article 13 (for copyright) and in Article 30 (for patent rights) of the TRIPs Agreement – in accordance with the provisions of the Vienna Convention on the Law of Treaties (which also binds Canada); the first panel, where the author of this paper was a member, in a patent case between the European Communities and Canada and then a second one in a copyright case between the European Communities and the United States of America. The two panels agreed on the basic aspects of interpretation; inter alia, on that the three conditions apply on a cumulative basis; thus, failure to comply with any of them results in an exception being disallowed. As the copyright panel has confirmed it, “Article 13 cannot have more than a narrow or limited operation. Its tenor… discloses that it was not intended to provide for exceptions or limitations except for those of a limited nature.” In contrast with the WTO panels, the Supreme Court of Canada (SCC) has not analyzed the provisions of the treaties at all; it has only based its „user rights” doctrine (for the application of fair dealing) on certain comments in a book of a Canadian academic quoting two US academics. The Court has interpreted the doctrine – in the CCH case – in a special way combining it with three elements: (i) the understanding that „user rights” does not only mean that the performance of certain acts are permitted, it also means that those “rights” are at least on an equal level but rather even superior to author’s rights; (ii) the principle of „large and liberal” interpretation of fair dealing and other exceptions (although the adjectives „large” and „liberal” are just the antonyms of the criteria of the three-step test according to which exceptions may only be applied in limited, confined, special cases); (iii) six factors to be taken into account to find fair dealing, all suggesting the superiority of „user rights” (among them the impact of fair dealing on the market (normal exploitations) of works, which also is only to be taken into account; a conflict with such exploitations – in contrast with the three-step text – is not supposed to be an obstacle to find fair dealing). The paper discusses in detail why and how the Canadian copyright law has got into conflict with the international treaties due to this pro-user case law – which became particularly conspicuous when applied in the Alberta (Education) case. By the 2012 Copyright Modernization Act, amending the Canadian Copyright Act (CCA), adopted nearly in parallel with Alberta (Education), the allowable fair dealing purposes have been extended to education in general without any specification whatsoever. This differs from the provisions of the international treaties (in particular Article 10(2) of the Berne Convention) and the national laws of Canada’s main trading partners where educational exceptions are limited to special cases, and – combined with the principle of „large and liberal” interpretation of fair dealing – has the potential of getting into even more serious conflict with the three-step test. The York decision of the Federal Court has raised the hope for reestablishing the concordance of the Canadian copyright law with the international treaties. It seems, however, that for this it would also be necessary to amend the CCA by limiting the application of educational fair dealing to special cases in accordance with the three-step test. The copyright laws of Canada’s key trading partners offer appropriate examples how this may be achieved.
Comments on Atresmedia -- what rights of performers are, or are not, applicable in case of embodiment of phonograms in audiovisual works
By Mihály F. Ficsor
In its Atresmedia judgment (Case C-147/19; ECLI:EU:C:2020:935), the Court of Justice of the E.U. (CJEU) has found that, when a phonogram is incorporated into an audiovisual work, it loses its quality of phonogram. Consequently, the rights in the phonogram cease to be applicable (although the phonogram regains its quality when published later separately). The Court has deduced from this finding that, as long as a phonogram is embodied in an audiovisual work, the right of performers and producers of phonograms to a single equitable remuneration provided in Article 8(2) of the E.U.’s Rental, Lending and Related Rights Directive (Directive 2006/115/EC) is not applicable. The CJEU has based this finding on a specific interpretation of the agreed statement adopted by the 1996 Diplomatic Conference concerning the definition of “phonogram” under Article 2(b) of the WIPO Performances and Phonograms Treaty (WPPT) – inter alia, with reference to a comment made by the author of this paper in the Guide to the Copyright and Related Rights Treaties Administered by WIPO. In the present paper, the view is expressed that it is not justified to interpret the agreed statement in a way that the right of performers and producers of phonograms to a single equitable remuneration is not applicable as long as the phonogram are embodied in audiovisual works. It is pointed out that no such interpretation may be deduced from the comment quoted by the Court from the WIPO Guide. Reference is made to the overlap between the definitions of “phonogram” under Article 2(b) of the WPPT and “audiovisual fixation” under Article 2(b) of the Beijing Treaty on Audiovisual Performances (BTAP), which is eliminated in favor of the definition of “phonogram”. On the basis of an analysis of the relevant provisions of the WPPT and the BTAP, a possible alternative option is outlined for the protection of the rights of performers in case of incorporation of phonograms in audiovisual fixations (= audiovisual works) – in their “performances fixed in audiovisual fixations The author acknowledges and thanks Pál Tomori, Director of the Hungarian Bureau for the Protection of Performers Rights (EJI), as well as José Luis Sevillano, Managing Director, Álvaro Hernandez-Pinzón García, Director of Legal Department and Paloma López Paláez, International Area Director of the Spanish Society of Performers (AIE) for their comments and suggestions.
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.