Copyright Enforcement in the EU Review Plans in the Shade of CJEU Blooming Activism

Eleonora Rosati

Online Copyright + Enforcement = Happiness?London, 1 April 2014

Contents

• EU copyright (enforcement) reform debate

• Enforcement & the CJEU

• Where: (Apparent) extension of possibilities for acting in respect of alleged online infringements

• What: Filtering and blocking injunctions

• Who: A matter of exception?

Is EU enforcement framework about to change?

The past few years • 2011 IPR Blueprint• Forthcoming review of Enforcement Directive

(Spring 2012)

• 2012 Communication on Content in the Digital Single Market• Decision in 2014 whether to table reform

proposals on enforcement

• 2013 Public Consultation on the Review of EU Copyright Rules• Should the civil enforcement system in the EU

be rendered more efficient for infringements of copyright committed with a commercial purpose?

• (Barnier: White Paper before summer to identify solutions based on problems where there are and if there are)

Overall: not so easy (and not just about enforcement)

• Borderless infringements of territorial rights• What to sue for? Different scope of protection in MSs, notably

exceptions & limitations

• Where to sue and what to seek? Jurisdiction and damages

• Many fundamental (Charter) rights involved when it comes to remedies• Property and effective remedy

• Private life & data protection and freedom of expression

• Freedom to conduct a business

Enforcement & the CJEU

WhereJurisdiction in

Online Infringement Cases

Problem question

You are a UK copyright holder (former progressive rock legend) domiciled in France and happen to discover that an Austrian company has unlawfully reproduced your work in Austria, and UK companies have sold unlawful copies via a website also accessible from France.

You want to sue the Austrian company for “infringement committed by placing content online” (is this the case? Anyway …)

Where do you go?

Brussels I time!

• General rule: MS of domicile of the defendant (Austria)

• Special rule: MS where the harmful event occurred or may occuri. MS where the damage occurred

ii. MS where the event giving rise to it occurred (UK? Austria?)

Can France be the place where the damage occurred just because website accessible from there or do you need “intention to target” the public or other specific connecting factor in that MS?

Case C-170/12 Pinckney: accessibility suffices but …

• Copyright holder can sue before courts of each MS where content placed online is protected and is or has been accessible (AG Jääskinen: “multiplication of courts”) • Cf Case C-441/13 Pez Ejduk (pending) which asks whether jurisdiction only subsists in:

• MS of establishment of alleged infringer, and• MS to which website, according to its content, is directed

• Copyright more akin to a personality right than a trade mark. But:

• Courts jurisdiction only in respect of damage caused in the territory of that MS (cfeDate)• CJEU does not say but diverging AG Opinion suggested that general rule allows you to seek

compensation for all damage suffered

WhatThe Role of ISPs

Filtering and blocking injunctions

• Cases C-70/10 Scarlet and C-360/10 Netlog actually prohibited very specific filtering

(1) all electronic communications passing via ISP’s services; (2) applying indiscriminately to all its customers; (3) as a preventive measure; (4) exclusively at ISP’s expense; and (5) for an unlimited period

• Case C-314/12 Telekabel• When several fundamental rights at stake balance needed• Blocking injunctions are compatible with EU law, even if not specific• Up to ISPs to choose how

• Then prove taken all reasonable measures• Measures must be targeted so to respect users’ freedom of information (liability?)

• A possible paradox: ISPs might infringe users’ fundamental rights!

WhoActing against individuals:

A matter of exception?

Case C-435/12 ACI Adam

• Is Dutch law that allows reproductions from unlawful sources to fall within the scope of the private copying exception (+ private copying levies) compatible with EU law?

• AG Cruz Villalón (and AG Trstenjak in Padawan): NO • Exceptions must be interpreted strictly (Painer)

• 3-step test: “do not conflict with a normal exploitation of the work”

• Dutch law indirectly favours massive diffusion of unlawful copies

Enforcement is not just about enforcement (CJEU knows it)

• Borderless infringements vs territorial rights (still?) and responses (still)

• Role of ISPs: between a rock and a hard place?

• Trite, but don’t forget that only what is protectable is enforceable• What falls within exclusive rights?

• How far-reaching are exclusive rights?

• How far-reaching can exceptions and limitations be?

Thank you for your attention!

eleonora@e-lawnora.com

@eLAWnora