Maduro´s neutrality condition critisism

As i´ve pointed out last week, i never got the neutrality condition proposed by GA Maduro. As much as our opinions coinceded on the trademark issue, i couldn´t help to disagree with his reasonig on the hosting exemption. General Advocate stated that hosting exemption does not apply to AdWords, because of not meeting essential neutrality condition (which nobody heard of before..). Thanks to IPkat, i could read the Spanish paper named "The liability of service providers in the information society. Reflections about the Opinion of the Advocate General delivered on 22 September 2009 in joined cases C-236 to 238 /08 Google v. Louis Vuitton and others before the ECJ" co-authored by Manuel Lobato and Fidel Porcuna, today (English translation). To my suprise it´s a great criticism on neutrality condition intrepreted by Maduro. Apparently, we do share points of view on the entire case. Basically it says - YES to GA´s trademark opinion (the opinion isn´t analyzed in the paper), NO to GA´s hosting interpretation. ECJ fortunately still does have a time to address this issue properly in both concerning cases (C-236/08 and C-323/09). It´s really important since these two cases in conjunction with another pending C-324/09 (dealing with general duty of care, individual (ad hoc) duty of care and injunction against intermediary), could provide strong interpretation of the scope of recent safe harbours.

Copyright protection of the Graphic User Interface

Yesterday, i´ve recieved the entire judgement (33 pages in Czech) of the City court of Prague which relate to case C-393/09 - BSA vs. Ministry of Culture of the CR pending before ECJ (see below). It deals with copyright protection of graphic user interface (GUI), collective administration of some economic rights to computer programs, possible broadcasting of computer program and other more local-importance (national law) issues. As blog 1709, i´ve been also wondering how this question appeared before some administrative court. Well, long story (beginning in 2001) and really intricate. So what happened in Czech republic ? (..shortened by me with some references to Czech Copyright Act - English version of which could be found here - doesn´t include some relevant amendments)

Back in 2001, Security Software Association (BSA) applied for authorization to execute collective administration pursuant to article 98 of Czech Copyright Act in two distinctive fields :

Mandatory administrated rights

- the right to use by cable retransmission of works, the live performances and performances fixed on phonogram ... the right to the use by cable retransmission of audiovisual fixations and phonograms other than those published for commercial purposes (Article 96 (1) (c)).

Voluntarily administrated rights

- right of rental of the original or a copy of the work, (Article 12 (4) (c))

- right of communication of the work to the public, (Article 12 (4) (f)) namely

1. the right of performing live or from a fixation, and the right of transmitting the performance of the work,

2. the right of broadcasting the work,

3. the right of rebroadcasting and retransmitting of the broadcast of the work,

4. the right of performing of the broadcast of the work.

Grating of the authorization has been rejected (not going into deep details) on the following grounds :

The right to use computer program by cable retransmission was found unlikely (absurd), because as such could be performed only by cable retransmitting of source code or machine code to the public. Pursuant to this interpretation isn´t GUI protected as form of computer program, but could be, if satisfy more strict requirements (unique vs. original), as the other work of art. GUI is creation (potentially copyrightable work) different from computer program which it constitutes. Ministry´s opinion is strongly based on the survey carried by Dr. Jiří Čermák (well-known Czech IT&IP scholar) who was authorized to provide his opinion on the issue by Ministry of Culture of CR.

Authorization for voluntarily administered economic rights has been rejected due to lack of effective execution of collective administration. I don´t want to get to the details. However worth mentioning is that computer programs are allegedly not collectively administrated in any Member state yet (Ministry of Culture claimed). There are also some good thoughts on right of rental of the computer program and communication to public rights, but it is out of scope of this post.

BSA appealed against decision to the City Court of Prague. They argued that computer programs are protected in any manner, meaning also in form of Graphic User Interface. Source code and machine code are both expressions of computer program in objectively percievable manner which user don´t understand. Indeed, user understands computer program in form of GUI, claimed plaintiff. Therefore pursuant to "any manner", not only source code and machine code but also communication of computer program to user shall be recognized as copyright protected (in computer program regime). Hence the authorization for collective administration of the right to use by cable retransmission of works shall be granted. Court clearly upheld Ministry´s decision adding some own reasoning.

- Subject to copyright infringement is only the source code or machine code of the computer program.

- Computer program is a work which interconnects with other computer program and result of this connection shall be subject to regime different from copyright.

- Pure look at computer program shall not be considered as use of computer program. This would mean that computer program is used in terms of law without enjoying the function of computer program which is absurd.

In my opinion this is really important, because private use exception (free use) does not apply to computer programs. Noteworthy is also the fact, that neither "press and TV licence" apply to making available to public (see article 66(7) with connection to article 34).

I did also find one short reference to decision of District court of Dusseldorf, stating the very same as Ministry of Culture. Anybody could provide it ? Unfortunately they didn´t state case number.

BSA appealed to Supreme Administrative Court which referred these questions to ECJ in C-393/09 :

- Should Article 1(2) of Council Directive 91/250/EEC 1 of 14 May 1991 on the legal protection of computer programs be interpreted as meaning that, for the purposes of the copyright protection of a computer program as a work under that directive, the phrase 'the expression in any form of a computer program' also includes the graphic user interface of the computer program or part thereof?

- If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of Article 3(1) of European Parliament and Council Directive 2001/29/EC 2 of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?

It´s your move, dear Court of Justice of European Union :)

BSA vs. Ministry of Culture CR

European Commission on information location tools

I encourage you to read latest post on ACTA by EFF. And also leaked comments of European Commission (EC) to US proposal of ACTA provisions. What i´ve found (inter alia) interesting is a part of this document, which relates to information location tools liability regime. EC provided it´s short opinion on safe harbour provisions in Electronic Commerce Directive in regard to it´s appliance to linking and search engines.

It reads :

Referring or linking to an online location – refers, according to US, to "search engines". As regards "non-commercial" hyperlinks, these could, in our view, be accepted as an extension of "hosting" (ECD, Article 14). Such hyperlinks are not explicitly regulated by the ECD. The liability of providers for hyperlinks and location tool services has been deliberately left out from the scope of the ECD. However, we believe that non-commercial hyperlinks could be treated as a hosting activity under Article 14 ECD.

How did they came up with this idea (commercial vs. non-commercial)? By saying "believe it ... could be", do they mean by extensive interpretation or per analogy from current legislation? It makes me wonder, because as i read from first report on possible revision of the electronic commerce directive, it was EC who was reluctant enough to propose new safe harbour for information location tools as search engines and hyperlinks. And it´s not the case when lot of scholars haven´t proposed. Indeed plenty of them critised this "deliberate left out". I reckon there should be strong debate on enacting proper approach for search engines and hyperlinks, as it´s not only about selecting "austrian" (mere conduit) or "spanish" (hosting) approach. It goes far beyond (economic, social implications). Maybe General Advocate´s opinion in AdWords in footnote 72 could be suggestive as well :

In my view, it would be consistent with the aim of Directive 2000/31 for Google’s search engine to be covered by a liability exemption. Arguably Google’s search engine does not fall under Article 14 of that directive, as it does not store information (the natural results) at the request of the sites that provide it. Nevertheless, I believe that those sites can be regarded as the recipients of a (free) service provided by Google, namely of making the information about them accessible to internet users, which means that Google’s search engine may fall under the liability exemption provided in respect of ‘caching’ in Article 13 of that directive. If necessary, the underlying aim of Directive 2000/31 would also allow an application by analogy of the liability exemption provided in Articles 12 to 14 thereof.

Please note that AdWords isn´t case about natural results, but sponsored one. Maduro goes beyond case merits by leaving this comment. However, on the other hand Maduro made some reference to condition of neutrality for intermediary, which i didn´t get really for now.

Some other good points to read in comments on ACTA.

• contributory liability,
• notice-and-take down procedures,
• altered and new safe harbours,
• filtering / three strikes provisions,
• technical protecting measures,

Search Engines and Copyright

As out-law.com informed, Lord Lucas proposed new amendment to Digital Economy Bill (DEB). There are two significant copyright issues. One refers to organic search, whereas the second to copyright exceptions legislative power. So, let´s first get on the organic search. There are few (real) copyright issues in there.

• Indexing copies

Made when search engine (SE) crawls the web. SE inserts them into it´s large database. Even though it´s just a technical (invisible) use of copyrighted material, consent of copyright owner should be obtained unless some statutory limitation apply. Indexing is a use under copyright doctrine (compare to Google´s arguments in GBS ).

• Internal copies

SE makes a lot of other copies from those first copies, because it needs to evaluate the relevance and other highly technical operations. This operation falls into use concept as well.

• Search engine´s cache

I.e. Google presents it´s results with an option to consult entire cached copies of the indexed websites. Google engage itself in two copyright uses. Making another copy in order to enable presentation of own cache and communicating those cached copies to public.

• Snippets in results

There is no way to draw up any rule for creation of "snippet content" (as far as i know..). However, sometimes SEs use part of website´s content to present the website within it´s results. Therefore the snippet is usually so short that it could be copyrightable just in the exceptional cases. Considering ECJ ruling in Infopaq C-5/08, this could happen even with less than 11 words (ECJ used qualitative instead of quantitative approach to define copyright protected part of the work - nothing new in SR/CR legislation). If there is no copyrightable material, there could be no use (compare to copyrightablity of Google Books Search´s snippets).

So what does the current EU legislation says about this matter ? There is no copyright limitation dealing explicitly with SE´s use of works. So the theories are as follows:

1. implied licence without any royalty,

The website owner is aware of presence of SE in the online world. Publishing the content online is an act of giving a licence to the SE under this theory. However it could not be extended to caching function of SE.

2. copyright exemption,

The only by far not ideal but a bit similar could be the exception for temporary and transient copies. Some scholars proposed that this exception could be applied by analogy or extensive interpretation. Nonetheless, there is a problem with current doctrine of restrictive interpretation of any limitations to copyright laws (at least in SR/CR).

3. non-use,

Some people don´t see any copyright issues in SE, while under their opinion there is no use of copyright material. These opinions are really infrequent and do not reflect current interpretation of copyright laws by courts and scholars in Europe.

Possible solutions de lege ferenda :

• copyright exemption,

This could appear in two modalities (1) without any royalty and (2) with some royalty (the one Rupert Murdoch would like to see probably).

• implied licence presumed by law

This is approach proposed by Lord Lucas (here as number 292) is fixing the current practice in black letter law. SE would acquire presumed implied licence for searching services by the law. The presumption should be rebutted by explicit evidence that such a licence was not granted (robots.txt file). I encourage you to read the details.

• "orphan works approach"

Search engine´s function isn´t that much different from recent problem with Google Book Search service. This approach would mean that use by search engine could be "covered" in two modalities again: (1) without any royalty and (2) with some royalty. There are infinite legal constructions for orphan works problem like (a) extensive collective licencing, (b) statutory exception, (c) court-granted licence (as in patents).

When looking at the aforementioned solutions, one should notice that not all of them are suitable for the search engine´s function in society - to localize the information for the user.

On the other hand DEB comes with another unique approach for legislating copyright limitations. It wants to grant legislative power in this field to government. This opens up a lot of problems. Maybe get on that latter.

Attachment - proposed amendment has a following reading :

Protection of search engines from liability for copyright infringement

(1) Every provider of a publicly accessible website shall be presumed to give a standing and non-exclusive license to providers of search engine services to make a copy of some or all of the content of that website, for the purpose only of providing said search engine services.

(2) The presumption referred to in subsection (1) may be rebutted by explicit evidence that such a licence was not granted.

(3) Such explicit evidence shall be found only in the form of statements in a machine-readable file to be placed on the website and accessible to providers of search engine services.

(4) A provider of search engine services who acts in accordance with this section shall not be liable for any breach of copyright in respect of the actions described in subsection (1).

Hutko´s reading list

Well, the year just began and we can see plenty of proposals, legal studies or interesting news getting around. Sort of problem to absorb all that stuff when one have to plough through his exam schedule at the same time. So i´ve decided to sum up in the brief way, the most relevant of them. Those i want to read after this "peak period". Steps are as follows :

1. Clean up my Reader

My Google Reader is getting stuffed in these days (more than 200 articles). Don´t count the general news :) Afterwards...

2. OHIM´s new study on CTMs

Contribution to the study on the overall functioning of the trade mark system in Europe. Proposing some amendments to CTMs.

3. Slovak Information Security Bill

Ministry of Finance proposed new bill regarding information security dealing especially with public sector security matters. It´s in the state of an legislative intent. Get to more details later.

4. Copyright in the Knowledge Economy

This paper is an communication from the Commission COM(2009) 532 final. It basically relates to the same named green paper COM(2008) 466/3. It´s from 2009, but it includes some good thoughts on copyright and is strongly connected to pending copyright reform (i.e. the one for orphan works).

5. Prof. Hugenholtz et al. on private copying

No Place Like Home for Making a Copy: Private Copying in European Copyright Law and Consumer Law. This dates back to 2007. Recommended by Institute of Law an Technology in Brno.

New Year´s Resolution

I´ve started my blog two years ago. Encoutered some interest, but also dissinterest in IT&IP law since then. However i´ve learnt a lot. Not just by composing the posts, but also "absorbing" reactions in the online or the offline world. While blogging in Slovak is much easier (not just because of language), on the other hand it limits the reachable audience. Audience is crucial for any blogger. Because it means discussion and discussion leads to more knowledge. That´s the reason why i decided to switch to English at this point. It doesn´t mean that any future Slovak posts are over, i just feel a need to change up to another level. I´ll keep writing some posts in Slovak as well, but the substantial amount will be published in English (depends on the nature of the post). I made this announcement because of two reasons :

• it´ll oblige me to do so :) as it´s New Year´s resolution,
• and i appreciate all my readers, so i want them know why :)

And as you can see i´ve also changed my design. It just make me feel brand-new and fresh (out of stereotype).