8th Internet, Law and Politics Congress (III). Copyright

Notes from the 8th Internet, Law and Politics Congress: Challenges and Opportunities of Online Entertainment, organized by the Open University of Catalonia, School of Law and Political Science, and held in Barcelona, Spain, on 9-10 July 2012. More notes on this event: idp2012.

Communications on copyright
Chairs: Raquel Xalabarder. Professor of Intellectual Property. Universitat Oberta de Catalunya.

Copyright infringing content available online.
Federica Casarosa, European University Institute, Department of Law, Florence (Italy)

There are new actors that have entered the supply chain: citizens/users and intermediaries; new models for content distribution; an increased role for ISP: they collect content from users, they deliver content online; there are blurring boundaries from the different actors, etc.

ISP liability is a sine-qua-non condition for copyright infringement. Thus, ISP have to be noticed of content infringing copyright.

In France, the notice is a set of specific items defined by law, while in Italy it is a case-by-case evaluation of sufficient level of detail in order to recognise the infringing content.

As per monitoring obligations, in France there is an obligation to monitor further infringements with the collaboration of copyright owners; while in Italy there is no ex ante filtering activity (also in case of previous notice on similar content).

There is a crucial difference in the definition of what a hosting provider is between France and Italy. While in Italy there is a distinction between an active and a passive host, in France there is no such a distinction.

Thus, there is a need for harmonization at the European level.

Emulation is the Most Sincere Form of Flattery: Retro Videogames, ROM Distribution and Copyright.
Benjamin Farrand, Lecturer in Intellectual Property Law, The University of Strathclyde (UK).

What is the balance from accessing copyrighted works and the right of access to cultural works.

In consoles, you need some hardware to be able to run a specific software. Emulators get rid of this necessity, by making it possible to use software (the emulator) instead of the hardware (the console). This, indeed, also enables the copy of ROM files aside from cartridges. But, is it legal to create emulators themselves?

Usually, reverse engineering (the process behind the creation of emulators) is legal, but the industry claims that emulators damage their sales/revenues. A criticism against this industry claim is that emulators usually come very much later than consoles, and thus only release old games that do not really compete with the current ones. On the other hand, newer consoles do not usually feature legacy games as they are not perceived as being economically viable or profitable, but they do appear on emulators.

Should thus videogames be considered cultural heritage/ public domain after 15-20 years? Should we consider a ‘use it or lose it’ approach to videogames?

The Digital Cloud Recorder: Modern VCR or New Intermediary?
Robin Kerremans, consultant with Deloitte in Diegem, Brussels (Belgium); Geert Somers, Lawyer, Partner at time.lex, (Brussels), Affiliated Researcher ICRI-KULeuven (Belgium).

We have moved from the video-cassette recorder (VCR), to digital recorders and, now, to digital cloud recorders (DCR): there are no more boundaries of time that you can record, things you can record at the same time, disk space, etc. They normally provide format shifting, screen shifting, time shifting, live streaming, etc.

What is the legal status of the copy made by a DCR? Can we way that it is the private copy you would have done with a VCR? Is it the same concept of ‘reproduction’ in the sense of Belgian copyright law? According to law, they access legally disclosed source and audiovisual content, so DCR and VCR so far are the same thing. Notwithstanding, copies have to be made within the family circle and used therein. The question being: who is actually making the copy in the cloud, who is the ‘copier’? There surely is a distinction between who is the technical copier and who is the maker of the copy.

Besides, in Belgium exceptions to personal copies include “any medium”, which includes “the cloud”.

The three step (advertising, time of storage, remuneration) is somewhat unclear. Is the copy a temporary technical copy? Is stream-back public communication?

Collective Licensing of On Line Music and the Recent Initiatives in the EU.
Enrico Bonadio, Lecturer in IP law – City University London (UK).

Collective licensing is a system under which copyright holders authorise collecting societies (CS) to license their copyright to users: CS grant users licenses covering foreign repertoires, there are reciprocal representation agreements, multi-repertoire licenses (but not multi-territorial licenses, as there sometimes are territorial restrictions as stated in specific clauses), etc.

The traditional licensing system requires authorizations for each country where music is to be licensed, especially in a changing environment where supports are multiple and new ones appearing every now and then.

Maybe a EU-wide licensing would provide successful in making things easier for everyone. Some criticism arises in the fact that it may still be costly for certain commercial users that still require an extended repertoire, that multi-repertoire blanket licences may still have “market appeal”, that there would be a loss of the usual single point of reference, and, somehow, there might be a “repertoire fragmentation”. On the other hand, there could be a possible “race to the bottom”, a detriment to right holders, low-quality management of their works, and, sometimes, even low remuneration.

Some initiatives: CELAS initiative 2007 (Centralised European Licensing and Administrative Service), Pan-European Digital Licensing Initiative (PEDL) 2006, ARMONIA Initiative 2007.

Cloud-Based cyberlocker services for music: other incoming battles in the endless war between copyright and technology?
Aura Bertoni, Research Fellow in Intellectual Property Law, Bocconi University (Italy); Maria Lillà Montagnani, Assistant Professor of Commercial Law, Bocconi University (Italy).

What changes are taking place in online music distribution with the advent of cloud computing?

A first problem arises with the very same definition of cloud computing, as it changes depending on what the point of view (technological, economical, etc.) is and what kind of computing services are we looking at (SaaS, PaaS, IaaS). Cloud computing is more an economic model than a specific technology.

iTunes, Spotify or Google’s Music Beta are different initiatives of cloud computing for music, and they already represent an evolution from the former to the latter: the former contemplates consumption as happening offline, while Spotify and Google’s Music contemplate online consumption of music, the latter with an ‘individual public cloud’, very different to Spotify’s.

Spotify is a cloud-based music service; Google Music is a music locker service (MLS) requiring every user to upload every song; MP3tunes is an MLS with single storage method that requires requiring to upload only songs not included in its library; last, iCloud is another MLS with single storage method and songs upgrade.

We have shifted from device-centric to information-centric music distribution.

We have thus to modernise copyright law to accommodate the new reality of music distribution: from the right to exclude to the right to have a fair remuneration; reforming the private copy regulation (what is a digital copy?); defining clear rules for online intermediary liability.

8th Internet, Law and Politics Conference (2012)

If you need to cite this article in a formal way (i.e. for bibliographical purposes) I dare suggest:

Peña-López, I. (2012) “8th Internet, Law and Politics Congress (III). Copyright” In ICTlogy, #106, July 2012. Barcelona: ICTlogy.
Retrieved month dd, yyyy from http://ictlogy.net/review/?p=3968

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