The Copyright guide provides expert legal commentary on key issues for businesses. The guide covers the important developments in the most significant jurisdictions.
Last Updated February 18, 2019
One of the hottest topics in copyright remains the question relating to the rules of liability that should be applied in the Internet world. While the proposal for an EU directive on copyright in the Digital Single Market is still pending (COM(2016) 593 final, with a difficult future ahead), national courts and the CJEU are continuously confronted with actions brought by rights-holders against various kinds of ISPs. One of the most interesting cases currently pending before the CJEU (case C-682/18) concerns whether the activity of a hosting provider constitutes an act of 'communication' if the service offers free storage space, creates a link that is made available to the uploader, and the latter can then share this link to enable downloading by third parties. Another issue is whether the ISP is liable under rules of knowledge only if it has received prior information relating to specific illegal activities, and whether a court order can be obtained on condition that an infringement occurs again, after a clear infringement has been pointed out. What is evident is the need for clarity on ISPs’ liability rules, almost 20 years on from the Electronic Commerce Directive, whether this be through a new piece of legislation or specific European case law.
Another interesting development concerns the growing importance of artificial intelligence and its impact on copyright rules. Machines are no longer just an instrument but are (at least potentially) capable of generating their own creative content. The question that arises is whether it is possible and appropriate to qualify such creative content as protectable, and to whom the related rights should be attributed. Here one should bear in mind that a fundamental obstacle exists, ie, the traditional interpretative position according to which only a natural person can realise a creative act, and therefore acquire the original right of copyright. However, there are legal systems in which there is a tendency to attribute legal subjectivity to artificial intelligence, and others in which the notion of protection of the work realised with the assistance of a computer has already been established. In this context it is necessary to consider that artificial intelligence will certainly be a prevailing way to produce works of art in the near future, and it is therefore probably equally necessary to try and conceive a way to grant copyright – or allied – protection to such works (in order to safeguard the relating investments), possibly enhancing the principle according to which rights may be granted provided that the results of the activity of artificial intelligence depend in some way on the choices and inputs of a human being.
Many other issues are regularly dealt with by courts, such as which items may qualify for copyright protection (cheese is not on this list, according to the CEJU case Levola Hengelo C-310/17, but dance movements might be – we will know better from the development of the Fortnite lawsuit), what exceptions are admissible under European law (vis-à-vis the fair-use doctrine – see CJEU Spiegel Online, C-516/17), what rules should apply to collective licensing in relation to the principle of transparency and fair competition, and so on.
It is confirmed that copyright practitioners must continue in a tiring but also exciting study of the regulatory and jurisprudential evolutions that follow the technological and commercial development of the sector, with an ever-increasing attention to the comparison with other national and EC laws. It is also key to be able to provide strategic advice in enhancing as well as defending rights, taking a holistic approach towards the entire life of assets from their creation to their licensing (in and out), as well as in possible litigation. Here, practitioners should not only be able to compare and evaluate different achievable results depending on the available jurisdictions, but also manage alternative and/or cumulative litigating strategies made up of possible choices among the civil, the criminal or the administrative routes.