Category Domestic Policy

Justices Display Concern About Monopolization and Disruption in Google v. Oracle Argument

In yesterday’s oral argument in Google v. Oracle, several Justices expressed serious concerns that an Oracle victory could lead to legal monopolies over de facto standards and serious disruption of settled expectations in the software industry... Significantly, all the Justices understood that the case concerned only the lawfulness of Google’s use of the declarations in the Java application programming interface (“API”), as opposed to the copyrightability of computer programs more generally.

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms

[Martin Husovec and João Quintais] Abstract: Article 17 of the Copyright in the Digital Single Market Directive is a major Internet policy experiment of our decade. The provision fundamentally changes copyright regulation of certain digital platforms. However, the precise nature of art. 17 is far from clear. How does it fit the existing structure of EU copyright law and doctrine? How can the Member States implement it? These are the questions at the heart of this article.

The New Related Right for Press Publishers: What Way Forward?

[Silvia Scalzini] Abstract: Following the entry into force of Directive 2019/790/EU, a new related right has been added to the EU catalogue (Article 15). Indeed, a new right has been introduced in favour of press publishers for the reproduction and making available to the public of press publications in respect of online uses by information society service providers. The main aim of the EU reform is to support the sustainability of the press by creating a level playing field between digital services and press publishers, where the latter may find a way to recoup a return on their investments. This objective is clearly reflected in the construction of the right, which is inherently unbalanced regarding opposing rights and interests, thus risking to (further) fragmenting the consistency of EU copyright and related rights system.

Civil Society letter on the Article 17 implementation guidance

Earlier today 27 (update 16-09-2020: 30) civil society organisations sent a joint letter to Commissioner Breton summarising our responses to the Article 17 guidance consultation that closed last week... The letter expresses concerns that the proposed Article 17 guidance endorses the use of automated content blocking by online services even though it is clear that this will lead to the violation of fundamental rights. It also warns that implementations of Article 17 based on the proposed guidance will violate established principles of EU law.

Commission consultation on Article 17 guidance: User rights must be protected at upload

[Paul Keller] At the end of July the Commission published a long awaited “targeted consultation addressed to the participants to the stakeholder dialogue on Article 17 of the CDSM Directive“. With this consultation the Commission makes good on its (pre-covid) promise to “share initial views on the content of the Article 17 guidance” with the participants of the stakeholder dialogue. Nestled in-between 18 questions, the consultation document provides a detailed outline of what the Commission’s guidance could look like once it is finalised. While we have been rather sceptical after the end of the six meetings of the stakeholder dialogue meetings, we are pleased to see that the initial views shared by the Commission express a genuine attempt to find a balance between the protection of user rights and the interests of creators and other rightholders, which reflects the complex balance of the provisions introduced by Article 17 after a long legislative fight.

An Open Letter to the Government of South Africa on the Need to Protect Human Rights in Copyright

[Cory Doctorow] Five years ago, South Africa embarked upon a long-overdue overhaul of its copyright system, and, as part of that process, the country incorporated some of the best elements of both U.S. and European copyright. From the U.S.A., South Africa imported the flexible idea of fair use -- a set of tests for when it's okay to use others' copyrighted work without permission. From the E.U., South Africa imported the idea of specific, enumerated exemptions for libraries, galleries, archives, museums, and researchers. Both systems are important for preserving core human rights, including free expression, privacy, education, and access to knowledge; as well as important cultural and economic priorities such as the ability to build U.S.- and European-style industries that rely on flexibilities in copyright.

SOUTH AFRICA’S COPYRIGHT AMENDMENT BILL – 5 YEARS ON

[Denise Nicholson] ... On 16 June 2020, the President elected to refer the Bill back to Parliament on the grounds of “constitutional concerns”. What is very disappointing and surprising is that the President ignored a Senior Counsel’s Opinion on the Bill, sent to his office, as well as hundreds of submissions, letters, messages, and public presentations in favour of these exceptions throughout the legislative process. Instead, and perhaps under pressure, he sent the Bill back based purely on one submission to Parliament made by a Senior Counsel on behalf of his client, the Copyright Coalition of South Africa. He failed to give his own presidential reasons or opinion as to why issues raised were likely to be "unconstitutional”.

South Africa Parliament Moves Up Copyright Hearing to Tuesday, August 18

[Sean Flynn] South Africa’s Portfolio Committee on Trade and Industry, (National Assembly), announced to stakeholders today that it is moving the scheduled briefing on the Copyright and the Performers’ Protection Amendment Bills to Tuesday August 18 at 9:00-12:00, via a virtual meeting platform. The meeting is scheduled to include briefings by the Department of Trade, Industry and Competition and by the Parliamentary Legal Advisor on the remitted Copyright and of the Performers’ Protection Amendment Bills. According to the Portfolio Comittee’s announcement, the presentations will discuss “the constitutionality of specific clauses and procedural deficiencies and on the process forward.”

ON A KNIFE EDGE? SOUTH AFRICA’S NEW COPYRIGHT LAW

[EIFL] The Copyright Amendment Bill [B13B - 2017] had been sitting on the desk of President Cyril Ramaphosa for over a year waiting to be signed into law. In June 2020, when Blind South Africa issued a legal challenge over the delay, the President acted. But instead of signing the Bill that had been approved by the legislature, the President used his prerogative to return it to parliament citing constitutional concerns with certain aspects, including new exceptions for libraries, education and persons with disabilities. The President’s rejection of the Bill is widely seen as the result of pressure by copyright industries, and the threat of trade sanctions and reduced future investment from the United States and the European Union.

European Commission Trade Policy Review Includes a Request for Comments on The Digital Transition and Technological Development

Thanks to Ante Wessels for calling to my attention to an EU Trade Policy Review, which aims "to build a consensus around a fresh medium-term direction for EU trade policy, responding to a variety of new global challenges and taking into account the lessons learned from the coronavirus crisis." The review includes a request for comments from the public, with submissions due September 15.