Special digital uses of copyright works

Question 1

Explain the US Server Test

Answer 1

In a nutshell, the server test holds that a website operator can only directly infringe a copyright owner’s rights if it hosts and transmits the copyrighted material from its own server. The test is premised upon the technical difference between a website that displays a copy of an image hosted on the site’s own server and a site that uses HTML instructions to direct a user’s browser to another server that stores the image. Providing these HTML instructions, per the server test, isn’t equivalent to displaying a “copy” of the image. Therefore, there’s no direct infringement.

The Server Test has been found inapplicable in cases of embedding E.g. Goldman v. Breitbart News Network, LLC, 302 F.Supp.3d 585 (SDNY 2018): third party embedding
a tweet displaying a copyrighted photograph

Question 2

Talk about the hyperlinking, framing and embedding in the EU

Answer 2

Permissible hyperlinking is construed as an internal limitation to the right of communication to the public

Svensson v Retriever, Case C-466/12 [2014]
Provision of clickable links to newspaper articles made available on the claimant’s website
* It must be regarded as an act of making available (and hence communication)
* However, it is not an infringement if the work was initially made available by the rightholder to the whole internet public, without technical restrictions to its access (not a communication to a “new public”).

Embedding of a claimant’s YouTube video on the defendant’s website
* The fact that embedding gives the “appearance” that the video belongs to the defendant does not authorize a different interpretation than the one given in Svensson.

Provision of clickable links to photographs made freely available on another website without authorization
* Linking to the work is an infringement only if there is knowledge (actual or constructive) that the content was not authorized.
* Due consideration must also be paid to the profit- or nonprofit-making nature of the act of linking.

Question 3

What about data mining in the EU?

Answer 3

Legal uncertainty until 2020
Two-tier exception introduced by the DSM Copyright Directive (2019/790)
Art. 3: TDM for non-commercial research
Art. 4: General TDM exception, subject to “reserve” by the rightholders

Question 4

What are orphan and out-of-commerce works? Why is it a problem?

Answer 4

Orphan works = Works in which copyright may still subsist, but where the copyright owner is either unknown or cannot be located.
Out-of-commerce works = Works that have been “abandoned” by their copyright owner and are no longer available in commerce
Why is it a problem?
* New and potentially valuable uses made possible by digital technology are undermined (e.g. digitization of library and archive collections)
* Permission cannot be presumed or implied (no ‘silent consent’ rule)
* Exhaustion of rights only applicable to distribution of (physical) copies

Question 5

What are orphan and out-of-commerce works? Why is it a problem?

Answer 5

Orphan works = Works in which copyright may still subsist, but where the copyright owner is either unknown or cannot be located.
Out-of-commerce works = Works that have been “abandoned” by their copyright owner and are no longer available in commerce
Why is it a problem?
* New and potentially valuable uses made possible by digital technology are undermined (e.g. digitization of library and archive collections)
* Permission cannot be presumed or implied (no ‘silent consent’ rule)
* Exhaustion of rights only applicable to distribution of (physical) copies

Can I use these works?
* Well, you can do it but at your own risk… Permission cannot be presumed or implied (no ‘silent
consent’ rule in copyright!)

Why are there orphan works?
✓ No formal registration system for copyright (Berne Convention, art. 5.2), nor
for transfer of ownership
✓ Low threshold for protection – ‘unintentional authorship’

Question 6

What do the US and the EU do to orphan works?

Answer 6

❑ USA: no statutory solution, but fair use likely to apply in many circumstances:
* E.g. non-commercial uses by memory institutions
(Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir.2014)
* Uses by libraries and digital archive in general → e.g. the Internet Archive
❑ EU: Orphan Works Directive (2012/28/EU)
* Exception for certain uses of OW by cultural institutions
* Subject to the requirement of “diligent search” of the rightsholders
* Extremely burdensome and impractical