Digital Technology and Intellectual Property Rights Flashcards
How fast is the digital technology sector growing?
Tech nation report - expanding 2.6% faster than the rest of the UK economy.
Shetland Times v Wills (FACTS)
Hyperlink Case
- Publishers of newspaper the Shetland Times sought an interim interdict agains Wills (director of Shetland News)
- The Shetland News were attaching hyperlinks to Times’ stories directly - this bypassed the homepage of the Times’ website which contained advertising.
- Times’ claimed their headlines were literary works and argued copying them on to another website was infringement of copyright under s.20 of CDPA 1988.
- Times further argued that Will’s activities constituted infringement under s,17 by copying in the form of storying electronically, Times’ work.
Shetland Times v Wills (Judgement)
No legal issues determined.
- interim interdict allowed
- Lord Hamilton accepted that the Times’ articles were ‘cable programmes’ within the meaning of the 1988 Act
- LH also accepted that the headlines were capable of being literary works
How well did Lord Hamilton do in relation to the development of IP in the digital age using the 1988 Act?
- Lord Hamilton made assessment that were available to him such as deeming headlines to be cable tv programmes and therefore being communicated to the public by electronic transmission.
However it is an example of how outdated aspects of the 1988 Act are in dealing with something as basic as a hyperlink.
What was James Connolly’s commentary on the Shetland case?
- That legislation should specifically deal with the issue of copyright and links.
- Technology of the internet is unique and does not fit easily on to existing copyright structure
What was the purpose of Article 3(1) of the Information Society Directive?
- To confer rights on to IP holders which are more fit for purpose within the digital age.
- Adopted by the CDPA 1988, s.20 - show that legislation as moving in the right direction by modernising law to reflect rights that are effective in the digital age.
Svensson v Retriever Sverige AB (FACTS)
REFERENCE TO NEW ART.3(1)
- Retriever’s company operated their own website where users received hyperlinks to articles on other without the permission of the respective authors.
- Svensson and others wrote articles for a particular newspaper which was published on the newspapers website - on this site articles were freely available to the public.
- Claimed actions by Retriever constituted communication to the public within the meaning of Art.3(1) of the Info. Society Directive.
Svensson v Retriever Sverige AB (JUDGEMENT)
LANDMARK DECISION OF THE CJEU.
- Provision of hyperlinks to copyrighted works DOES CONSTITUTE communication as the links must be considered to making works available
- Freely available website aimed at large numbers of people constituted a public.
HELD - The origin of the articles came from a website with no other restrictions and therefore could be said to target all potential internet users.
- Links did not in this instance make articles available to a NEW PUBLIC - therefore no need for consent.
What is the key aspect of the decision in Svensson and compare it to the case of Shetland.
- That in this case the key element was that the hyperlinks were providing links to works which were already publicly available to everyone.
- Case does not demonstrate that there is free reign to hyperlink anything and everything - likely if the facts in Shetland were applied here the court may have found infringement because in that case hyperlinking was bypassing advertisements.
How has Svensson operated in dealing with a case of up to date technology?
- Very well
- Applied law which was directly made to tackle the problems of modernised technology.
- Gave a reasoned and sensible judgement.
What was the decision in Bestwater?
That use of framing technology to make third parties work available on ones own website does not in itself constitute infringement under Art.3 of the Info Society Directive per the decision in Svensson
GS Media v Sanoma Media Netherland 2016
HYPERLINK TO ILLEGALLY PUBLISHED WORK IS A COMMUNICATION TO THE PUBLIC
- In this case a clickable link was posted online to illegally published work.
- The court held this was a “communication to the public” and therefore infringement.
- Links posted by not for profit individual who does not know, or cannot reasonably know whether the work was published without consent would not constitute communication to the public.
- In contrast, where the person knew or ought to have known that the link provided access to a work published illegally online (for example if they have been put on notice) this would constitute communication the public.
- There is a presumption of knowledge when a hyperlink is published in view of profit to illegally published work.
What was Midelieva’s commentary in regard to GS Media?
- That hyperlinks which which are published to unauthorised content as a copyright infringement is unsatisfactory.
- It allows a presumption of knowledge of illegality to override lack of indispensability.
- Creates legal uncertainty for internet users - balance tilts in favour of rights holders.
What does she propose? - That hyperlinks should only be deemed a “communication to the public” where they play an indispensable role in enabling access to content.
This would improve certainty amongst users and strike a balance between the two stake holders.
Provide an overall summing up of hyperlinking in the digital climate.
- Info. Directive certainly dealt with the challenges present in regard to hyperlinking prior to it’s implementation e.g. the wording was outdated and unfit pre Shetland.
- Interpretation of hyperlinking in Svensson provided clear guidance as to what types of links will be protected under the Info. Directive.
- GS Media: CJEU stopped short of finding that web links are not a communication to the public at all, thus seeking to protect rights holders against their use to circumvent access restrictions or to provide access to pirated or other unauthorised content.
What contrast did the IPO make between legitimate streaming sites and streaming sites which infringe copyright?
- Legit sites like Netflix and Spotify have helped keep online infringement in check through innovative new ways of live streaming
- However, around 7 million people are streaming illegal material which infringes copyright therefore having a direct effect on those who hold IPRs.
