Copyright. 2014 Results. World and Russian Trends

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    Today, on the 2015 anniversary of the birth of Jesus of Nazareth, I would like to recall the “miracle of five loaves and two fish” described in the Gospel of John. According to the legend, taking bread and fish, looking up to heaven, Jesus offered thanks, then broke bread and gave food to the disciples, and they gave it to people. So, in fact, Jesus Christ violated the Creator's exclusive right to the objects of the material world by feeding a hungry crowd with multiplied food. Obviously, in the 21st century, the Internet and p2p technologies can fulfill the miracle once created by the Savior, satisfying the information hunger of millions of people all over the planet, striving for the achievements of science and culture through the means of their computers and smartphones. That's just despite the tremendous power that is in the technology of the global network, there are many who want to take the Internet up at Calvary,

    In early 2014, we announced that it was time to change copyright . Perhaps the whole world agrees with this, trying one way or anotherchange copyright laws lagging behind public relations. However, by the end of 2014, the laws governing copyright remained as imperfect as it was in 2013. Throughout the year, many countries tried to patch up the holes in their copyright laws in order to somehow solve their own problems at the dawn of the heyday of the digital age, caused by the lag of legal norms from dynamically developing online services and file sharing technologies. Everyone did it differently. This review presents the main laws, bills and judicial precedents from around the world that allow us to understand the direction that media lobbyists, lawmakers and courts will take when addressing difficult issues related to the consumption, distribution, processing of copyrighted works in the global network The Internet.

    EUROPE


    In the UK , the country in which the laws on the rights of authors and publishers first appeared, realizing the need for copyright reform, over the past decade, a comprehensive study has been made of issues related to the enforcement of copyright laws in the digital environment. However, despite this, a large number of recommendations from the latest study have not been taken into account. Nevertheless, they were reflected in the new copyright textbooks as a legal doctrine, and some provisions of the UK Copyright Act were nevertheless amended and entered into force on June 01, 2014. These include provisions that facilitate the use of copyrighted works , students, researchers, teachers, libraries and people with disabilities.

    Meanwhile,amendments to Spanish copyright law(Ley De Propiedad Intelectual), which should come into force in January 2015, turned out to be much less liberal. They criminalize information intermediaries for refusing to remove links to proprietary content. In addition, the law seriously hit news aggregators, who are obliged to pay royalties for the use of information fragments of works, rights to which belong to third parties, along with links to such content from the new year. Even reasonable expert arguments that copyright holders and publishers will lose more on traffic because of their greedy desire to receive part of Google’s revenues did not help. Let me remind you that similar provisions were already contained in the scandalous laws of SOPA and PIPA, which at one time failed in the United States under pressure from the general public.the closure of the Spanish version of Google News .

    And in neighboring Italy , despite widespread public discussion, as well as serious opposition from the scientific legal community and civil activists, the Italian analogue of Roskomnadzor (AGCOM) approved its regulatory mechanismto ensure copyright protection on the network. The outgoing chairman of the authorized body a few days before taking up the new head in a hurry approved the procedure for regulating copyrighted content on the network. The new rules, which entered into force on March 31, 2014, allow AGCOM to administratively influence information intermediaries in connection with copyright infringement. According to the accepted procedure, copyright holders have the right to file complaints about copyright infringement on the network through the online form on the AGCOM website. The specified mechanism does not provide for prosecution of users themselves who consume pirated content, and the fulfillment by them of a number of duties specified by law. It is aimed at OSP (service providers), as well as individuals who have uploaded controversial works to the network and website operators, which contains such content. Relevant persons are informed that an administrative procedure has been instituted against them. After that, they are required to remove or block access to content posted in violation of copyright. If the person who received the notification does not comply with the request of the person who has claimed his rights, he is obliged to send counter-notification within 5 days from the receipt of the notification from AGCOM (other terms may apply if AGCOM considers the case particularly difficult). If the expert group at AGCOM concludes that there has been a copyright violation, and the party to which the notification was sent ignored the requirement to remove or block the material, without sending counter-notification, AGCOM is authorized to take the following measures to further prevent the violation:
    1. If the website, on which the violation is completely hosted, is hosted on a server in Italy, the hosting provider will be instructed to remove the copyright infringing content, and in case of massive copyright infringement on the website, it may be ordered to restrict access to the entire site with counterfeit works, instead of point removal;
    2. If the website, on which there is a complete violation, is hosted on a server outside Italy, then the ISP will be ordered to restrict access to such a site;
    3. When restricting access to content or a site, information intermediaries (including hosting providers and ISPs) are obliged to redirect the user who has accessed the blocked page or site to the information page specified in accordance with the instructions of AGCOM.

    In fact, the AGCOM-introduced administrative process for responding to copyright infringement in the digital space is the first and only one of its kind in Europe. This is of concern to many human rights defenders in Italy for several reasons. First of all, the constitutionality of such an approach raises doubts. Italian lawyers have repeatedly noted that legislative decree 44/10 of 03.15.2010 cannot impose on the AGCOM such a degree of law enforcement powers that could violate the constitutional rights of users. According to criticism within Italy, AGCOM is trying to apply rules that, apparently, it does not have the right to apply, and empowers itself with powers that cannot be delegated to the executive body. As soon as the Parliament has the right to adopt new regulations,

    At the same time, AGCOM de facto deprives users of the right to judicial review of disputes related to copyright infringement on the network. Undoubtedly, for rightholders, a preferable way to protect rights is to initiate administrative procedures using AGCOM than to file lawsuits in court to obtain legal protection. Despite the fact that the adopted procedure provides that all administrative procedures are terminated if any of the parties involved initiates proceedings in court, it does not seem that the service providers and website owners independently went to court. In this regard, users are deprived of the opportunity to maintain a balance of “opposed fundamental rights”, which the European Court of Justice drew attention to in the case of the claim of the copyright holder against ISP about blocking the website kino.to. According to the decision, measures to block the site should be proportionate, and such actions should not violate European law.

    Currently, the Consumers Association and a number of other organizations are contesting the approved administrative procedure for the work of AGCOM in the administrative tribunal and raises a question before the Constitutional Court about the legality of this approach.

    Awareness of the need to reform copyright laws came in general to the European Union , which, until March 5, 2014, had been gathering opinionsusers and experts regarding changes to certain provisions of union copyright laws that limited citizens' rights in the information age. As a result of lengthy public consultations, a thorough report was prepared on the most significant socio-economic problems of the application of copyright law. However, despite such a positive in-depth study of the problem initiated by the European Commission, some official documents were merged into the network, from which it follows that the measures taken in the near future in the EU will not be aimed at liberalizing the current legislation on copyright, but at more stringent regulation of civil-law circulation of content on the network. According to these proposals, the emphasis is on increasing the responsibility of information intermediaries, as well as on the distribution of user content (UGC) through licensing, instead of a more appropriate method based on expanding the legal basis for limiting the protection of exclusive rights ( fair use ).

    It would seem that all copyright regulation comes from media lobbyists and legislators who want to keep the unshakable exclusive monopoly of the author or other copyright holder on copying, distributing and modifying content in global and local networks, as was once laid down by the Berne Convention. But, not only lawmakers are trying to amend existing legislation to balance the interests of different parties. The courts themselves are equally eager for the casual interpretation of copyright rules when it comes to the Internet.

    Among the most important court decisions related to copyright this year were the decisions of the European Court of Justice, in one of which the court ruled in favor of the legality of the embedded hyperlinksin a lawsuit against Retriever’s media analytics service, and in another he explained that libraries have the right to freely digitize their collections. At the same time, the European Court of Justice narrowed down the legal grounds for copyright fees , which most Europeans paid for using copy machines and the media, supposedly in order to compensate for the loss of copyright holders for piracy.

    In June 2014, the UK Supreme Court considered a rather interesting case in a lawsuit filed by the Association of PR consultants for the Publisher Licensing Agency (NLA), better known in the legal profession as the “Meltwater Case”. UK Supreme Court resolving merits, asked the European Court of Justice with a question whether end users who browse the web on their computers without subsequent downloading or printing violate exclusive copyrights in the absence of a copyright holder’s license.

    In particular, the British Supreme Court asked the European Court whether such copies are (i) temporary (ii) transitory or random and (iii) an integral essential part of the technological process within the meaning of Art. 5 (1) of EU Directive No. 2001/29 / EC1, provided that:
    (1) the end user only has access to online viewing of the page on the Internet, without the possibility of downloading, printing any other means of copying materials;
    (2) copies of web pages are automatically created on the screen and stored in the cache on the end user's hard drive;
    (3) making copies is a prerequisite for the technical process associated with the correct and effective web surfing;
    (4) the on-screen copy is stored on the monitor screen until the end user leaves the relevant web page, after which the page disappears from the computer;
    (5) the cached instance remains in the cache until it is overwritten with other material that the end user views while further surfing the subsequent web pages;
    (6) copies of pages are retained for a short amount of time.

    In other words, the question concerned the exclusion of this case from the general right of reproduction, for which it is necessary to obtain a license.

    The Supreme Court overturned the decisions of lower courts, and the European Court of Justice ultimately concluded that web surfing, i.e. browsing the web, in the absence of a license, does not entail a violation and is absolutely legal.

    The issue regarding aggregation services in case No.C-466/12 turned out to be somewhat more complicated.Nils Svensson, in which the European Court of Justice was asked to answer the following question: is the provision of a hyperlink to a copyrighted work a special case of bringing the work to the public, which is one way of disposing of the exclusive right. To date, a decision of the European Court in this case has not been issued.

    Particular activityin the fight against online piracy in 2014, not only the courts, but also the English Police Division for Intellectual Property Crimes (PIPCU) are showing. Police officers confiscate domain names and attempt to pressure advertisers of sites suspected of massive copyright infringement, as well as cutting off funding sources for such portals. Of course, first of all, resources based on p2p technology came under attack. It seems that Operation Creative, launched by the security forces with the participation of a number of large British associations of copyright holders and advertisers, is now aimed at a global scale.

    In 2015, it will be quite interesting to observe the development of the EU copyright reform initiative in the digital age mentioned above.

    ProjectFix Copyright states that the European Union copyright rules are out of sync with reality and leave too many opportunities for free interpretation, which can be used for judicial trolling of Internet users and information intermediaries.

    While there are no borders in cyberspace, the EU has so far failed to create a single digital market, where the same rules apply for all countries. This makes the European digital market unattractive for companies aimed at providing a wide range of different services, depriving citizens in some member states of access to services that are available elsewhere in the EU, and complicating international cooperation. All this puts Europe at a competitive disadvantage compared to other economies.

    USA


    After the complete failure in 2012 of SOPA and PIPA under pressure from the general public, human rights defenders, Internet companies and users of the American segment of the Internet, there were no new attempts to publicly discuss and adopt copyright laws in the digital age in the United States. However, after committing a hacker attack on Sony, it turned outthat the MPAA (American Film Producers Association) does not abandon its plans to push through a law introducing censorship on the Internet, allowing you to block any site that restricts freedom of speech and the potential for Internet development. As it became known from the documents merged into the network, the six largest American film companies used corrupt schemes to lobby for their own interests and prepared a large campaign against Google under the code name “Goliath”. And this despite the fact that last year Google at the request of copyright holders removed more than 345 million copyright-infringing links. In addition, the US continues to negotiate with various countries over the conclusion of a secret agreement on the Trans-Pacific Partnership (TPP), an economic bloc to counter the growing influence of China and Russia. The draft agreement contains provisions that allow online monitoring of the consumption of various content by users, personal searches of individual devices (including smartphones and laptops) for counterfeit content at the border, as well as other equally odious proposals to strengthen state regulation of civil law traffic digital content.

    AUSTRALIA


    A large-scale study of copyright law began in Australia in 2012 as well. An opinion on the results of the study was submitted to Parliament in February 2014 for further discussion and final decision. The key recommendation of the expert opinion was that Australia should pass a series of changes to national copyright laws governing exclusions of protection for the fair use of works. However, time has shown that the priorities of the Government under the pressure of certain media lobbyists differ significantly from the priorities of experts and the IT community. Instead of promoting the speedy adoption of proposed norms, the Attorney General of Australiain every possible way delayed the publication of the report, and in the end declared that the implementation of the provisions on “3 warnings” (similar to the American CAS system providing for “6 warnings” ), and also adoption of standards that strengthen the protection of copyright holders and allow blocking offending sites.

    ASIA


    In the meantime, the EU has been slowly analyzing the results of a large-scale public survey, Hong Kong has already begun to act, proposing solutions on how to bring copyright laws in step with the technologies that Internet users are offering today. In June 2014, the Hong Kong Government introduced amendments to copyright law. One of the key proposals under the proposed bill was the creation of “safe havens” for service providers (OSP). According to Article 50 of the draft draft, the liability of the service provider for infringement of exclusive copyrights on the proposed online service may be limited if OSP has fulfilled a number of conditions, including has taken the necessary steps to limit access to controversial content or to stop copyright infringement after it has been notified. As a spokesperson saidThe Hong Kong Government, a legislative proposal aims to protect copyrights in the digital space, as well as simplifying the fight against a large number of cases of digital piracy, given the delicate balance of interests between copyright holders and users. However, despite the fact that the amendments are designed to establish a fair balance that is conducive to a culture of remixes, according to professor at Drake University Peter YuThe revised copyright bill is still bad for most users who believe that the bill is not able to solve their current needs. And all because the prepared version of the amendments takes into account a very limited amount of exceptions for the “fair use” of works for non-commercial purposes, despite the fact that earlier, as a result of public consultations, much more such cases were agreed.

    Meanwhile, a bill similar to the scandalous US SOPA law was proposed in Taiwan. The author of the bill was the authorized federal agency for regulating the turnover of intellectual property (TIPO). In accordance with the project, TIPO proposes to give itself the authority to restrict access to foreign sites, which, by TIPO’s sole decision, are “resources intended for massive copyright infringement of third parties”. The bill was recalled due to serious opposition from the Internet community and significant media coverage.
    Another bill, the so-called “telecommunications law”, under which telecommunications companies are required to remove content if the administrative authority (not the court!) Considers that the content posted violates the law (including copyright and defamation law), and its elimination is technically feasible, was temporarily frozen, but most likely in the near future will again go to Congress.

    In Singapore, from 7 to 21 April 2014, public consultations were also held on the reform of copyright law. As a result, Singapore lawmakers went even further in the fight against piracy by adopting a law amending national copyright laws.. According to this act, national authorities have the right to block access to resources such as The Pirate Bay or KickAssTorrent , which flagrantly violate copyright laws. The law entered into force in August 2014 and allowed copyright holders to file applications with the Supreme Court with a view to further forwarding the order to the ISP to restrict accessto malicious intruder sites, as follows from Art. 193A of the Copyright Act. Thus, in accordance with the new law, the Supreme Court of Singapore has the right to determine whether one or another website is used on the Internet for constant gross violation of copyright of third parties. The court draws conclusions about the site’s activities based on several factors: (1) whether the main purpose of the site is copyright infringement; (2) whether the site contains directories, indexes or categories of works that infringe copyright; (3) whether the owner or operator of the site disregards the protection of exclusive copyrights; (4) whether access to the site was restricted in accordance with the decisions of courts of other foreign jurisdictions for violation of exclusive copyrights; (5) whether the site contains any instructions and description of tools to restore access to the site; (6) the amount of traffic to the site. This list is not exhaustive, and the court may consider other conditions for taking measures to block the Internet resource. If the Supreme Court gives a green light, copyright holders have the opportunity to remove controversial content or block website hosting for eight weeks.

    After its adoption by the National Parliament, the law was approved by all rightholders around the world, however, some ISPs were asked about important practical aspects of law enforcement. So, it is not completely clear how the courts will describe ways to restrict access (by domain name or IP). At the same time, experts emphasize that the costs of such activities can vary significantly for Internet providers depending on the blocking mechanism chosen by the courts. It is possible that this law will shift the financial burden of protecting exclusive copyrights from copyright holders to Internet providers.

    RUSSIA


    The last quarter of the year showed Russian users and the whole world that Russia was not going to follow the path of liberalization of certain provisions of copyright laws in order to comply with the existing laws in the spirit of digital time. The Presidential Administration, the Government and the State Duma are making more and more attempts to further tighten the regime for the protection of exclusive rights, support opaque schemes for collecting and distributing royalties from OKUPs and holding violators and information intermediaries accountable.

    Since the conclusion of the agreement between the USA and the Russian Federation on December 21, 2012“On combating the violation of intellectual property rights on the Internet and agreeing on an action plan by the parties to improve the protection of rights,” much has changed in the relations of former partners. The sudden “cold trade and information war" of the two countries, it would seem, was supposed to completely bury the ambitious plans of the United States to implement anti-piracy legislation (SOPA and PIPA, which failed miserably at home), at the experimental site of the Russian Internet. However, despite the contradiction of the proposed amendments to the strategic interests of Russia, as well as aggressive attacks from abroad, with considerable support from the Ministry of Culture, media lobbyists and a number of influential deputies, the law was adopted by the State Duma on November 14, 2014, and signed by the President on November 25.

    Federal Law No. 364 will enter into force on May 01, 2015 and will allow, as a security measure, to block access not only to sites with unlicensed video content, but also to “pirated” copies of books, music and programs. The only exceptions are photos. In this case, not only the placement of the copyright object on the site, but also any placement of hyperlinks or other “information with which you can access” unauthorized copies of the works will be considered a violation. At the same time, the law provides for an eternal blocking of the site in case of repeated violation of copyright of third parties.

    Undoubtedly, the law poses great threats to the stable operation of the Russian Internet. Against the backdrop of recent events, the law passed for Russian citizens is almost not noticeable. There were no strikes, no waves of protests, or statements by large technology companies, as was the case when the first version of the anti-piracy law was adopted (No. 187-FZ ). Nevertheless, under the petition to repeal this legislative act , signatures are being collected for its further transfer to the President of the Russian Federation.

    At the end of 2014, a bill prepared by the RSP on a “global license” made quite a stir, which provides for a general collection for content that is proposed to be collected from users through ISP for the use of works for personal purposes via the Internet. Perhaps, not a single proposal of recent years in the field of copyright reform has caused such an abundant stream of criticism from all sides. The vast majority of representatives of both the Internet industry and government departments and ministries spoke sharply negatively regarding this proposal. Experts and users unanimously opposed the adoption of the law on the portal for posting information on draft documents being prepared , as well as on the site of the Public Chamber . The portal "ROI" is still ongoingcollection of signatures for the initiative "to abolish the implementation of the concept of the Russian Union of Copyright Holders on the introduction of anti-piracy fees on the Internet." However, even despite the general dissatisfaction with the proposed approach, which, according to the authors, does not replace the current "anti-piracy approach" associated with blocking Internet resources, but supplements it, the Ministry of Culture went even further . To implement this idea, the Ministry of Culture suggests obliging telecom operators to install special expensive technology for traffic analysis - Deep Packet Inspection (DPI), and block pirated sites and unlicensed copyright content in real time.

    In the meantime, Russian officials, copyright experts and stakeholders are trying to figure out what to do next with the “anti-piracy law ver.2.0” and “global licenses”, the Russian daughter of the American film companies “RAPO” continues its march through the regions of the country, attracting users to the criminal responsibility for illegal file sharing in p2p, thereby intimidating consumers of free content on torrent networks. The most high-profile case of the past year was the criminal process against a resident of Tatarstan Alexei Semenov for 10 torrent files uploaded to the local network, the cost of which was estimated at 11 million rubles. Just as it was in the Lopukhov case, the cost of the violated rights was declared by the copyright holder themselves, and was not further verified by the investigation, the prosecutor's office, or the court. The initiator of the initiation of this case was the same RAPO. The employees of this organization appeared in the case as experts, and as evaluators, and as representatives of the victims of American film companies.

    Despite the fact that according to the investigation, Semenov participated in the p2p movie exchange for personal purposes, without any commercial gain, as well as many procedural violations committed during the preliminary investigation and trial, Alexey Semenov was found guilty of “copyright violation” by the court rights, that is, illegal use of objects of copyright or related rights, as well as the acquisition, storage of counterfeit works for marketing purposes, committed on a particularly large scale ”and sentenced to a fine of 4 0 thousand rubles in favor of the state. The verdict is currently being appealed.

    However, even in a series of negative laws and bills in 2014 there were positive developments. First of all, we are talking about “legalization of free licenses”that appeared in the 4th part of the Civil Code after the adoption of Federal Law No. 35-ФЗ dated March 12, 2014. Thus, from October 1, 2014, Art. 1286.1 of the Civil Code of the Russian Federation, providing for the possibility of issuing open licenses for works created to a wide range of users.

    Undoubtedly, amendments to the Civil Code create a legal opportunity to introduce into civilized civil circulation a huge array of so-called user generated content (UGC - Users generated content) and provide a legal opportunity for all authors to provide a wide range of individuals with the right to distribute / copy / process created works at their own discretion ( including for free and under Creative Commons licenses)
    In 2014, another rather important and useful legislative initiative for the Russian society wasbill of the Communist Party and PPR “on the transfer of the Soviet cultural heritage into the public domain”. Despite the understandability of many users and experts to the argument that the bill is aimed at establishing social justice and legal consolidation of the fact that works of science, literature and art created in the Soviet period at the request of the state for budget funds are essentially nationwide, that is, in the public domain, the further fate of the bill is currently undefined.

    As you can see, the problem of reforming copyright laws is today not only for Russian Internet users, but for the whole world. Attempts by major copyright holders and state authorities to control private communications of citizens, while placing the entire burden of responsibility on information intermediaries, are being undertaken in many countries. Only a consolidated position and joint actions of users, legal practitioners, civil activists and global global online services can change the emerging approach, aimed at expanding the forms and degree of responsibility of users and information intermediaries for copyright infringement. The application of this approach can only aggravate the confrontation between the Internet community and the media business, but it does not solve the problem in essence.

    Will there be any constructive attempts in 2015 to prudently revise national laws and whether a step has been taken towards the adoption of a new international copyright convention , or will priority still be given to the good old idealist war against piracy, which has already plagued the whole world ? It is hoped that the mind will finally prevail over the greed of some cultural figures outdated in their business models.

    The review was made as part of the annual study of the project “Time to change copyright” on the status of copyright legislation in the world and in Russia. “Time to Change Copyright” is a nonprofit IPA and PPR projectsupported by donations from Runet users. If you like what we do, join our campaign and help us protect freedom of speech, privacy and innovation.

    The review was prepared for the project “Time to Change Copyright” . 2015. CC0. You can download it here . The review used materials EFF , C4C , FFTF , CDT , CIS .

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