Copyright Notes

THE RIGHT OF COMMUNICATION TO THE PUBLIC IN THE EU

Individual assessment which must take into account a number of complementary, interdependent factors:

1. Nature and effect of the communication
2. Knowledge of the consequences of the communication
3. Whether the work has communicated using different technical means
4. Whether it was communicated to a "new" public
5. The profit-making nature of a communication

THE US LAW: PUBLIC PERFORMANCE AND PUBLIC DISPLAY

17 U.S. Code § 106 – Exclusive rights in C works

In the US jurisdiction, public performance includes what is called "public communication" (transmission) in international treaties and in EU law. 16

The definition of "in public" >> 17 U.S. Code § 101 – Definitions

To perform or display a work "publicly" means 2 things:

1. To perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal

1. A circle of a family and its social acquaintances is gathered.

2. To transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

   2 rights:

   1. PUBLIC DISPLAY (§ 106(5)) > broadly defined as "to show a copy of (the work), either directly or by means of a film, slide, television image, or any other device or process...". It does not apply to motion pictures (only to individual images). Finally, its application is severely limited by § 109(c) which says that once the C owner has sold a copy of the work, the purchaser may display the copy in public.

   2. PUBLIC PERFORMANCE (§ 106(4)) > it applies to all categories of works but not to sound recordings. It includes BOTH performance to a live

audience AND transmission of the performance to a distant audience (§ 101(2): right to "transmit or otherwise communicate a performance... of the copyrighted work... to the public"). Finally, both linear and interactive transmission (§ 102(2): "whether the members of the public... receive it in the same place or in separate places and at the same time or at different times").

COMPARE THESE DEFINITIONS WITH ART. 8 WCT AND ART. 3.2 INFOSOC DIRECTIVE!!!

Case law: American Broadcasting Companies v. Aereo, Inc. 134 S.Ct. 2498 (2014)

Technology is something that combines VCAST and TVCatchup.

Aereo is an internet company that provides customers with TV signal on any device that is connected to the internet, including time-shifting recording. The explanation of the system is the following: 17

Interesting point: to see the way in which technology is embedded into the law!

Argument of Aereo: "We are just providing antennas to use. We are not performing the work".

Does Aereo perform the TV programs publicly? If it is the user who performs the work, then it is not a public performance (as the definition of "in public" says). The 2 Circuit agreed with this construal and said that there was no public performance, because it does not transmit "to the public". Rather, each time Aereo streams a program to a subscriber, it sends a private transmission that is available only to that subscriber.

Supreme court said "Yes, there is public performance because Aereo is not just an equipment provider but it provides users with a "viewer experience" (not just a technical facility). Individual transmission is still transmission to the public: analogy with cable transmission (the fact that the transmission reaches one user at a time, does not mean that there is no public.

transmission). An entity that transmits a performance to individuals in their capacities as owners or possessors does not perform to the "public"; whereas an entity like Aereo that transmits to large numbers of paying subscribers who lack any prior relationship to the works does so perform.

INT. COPYRIGHT > TOPIC 8 > 15 April 2021

"Permitted uses of copyright works: the international framework"

Permitted uses > international framework: Berne Convention – Article 9(2): "3 step test" > it shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Berne Convention – Article 10 >> Quotations; Illustrations for teaching; Indication of source and author.

Art. 1 mandates MSs to have an exception for

quotations > every Member of the Berne Union must recognize the right to quote from another work (not an option!) > it is mandatory!!

18The 3 step test > provision that sets certain limits as to the freedom of national legislation to introduce exemptions, limitations to exclusive rights of the author. This test was first introduced in the Berne Convention in 1971 revision and then it made its way in other legislations (not only international), like the TRIPs and WIPO!

Berne Convention, 9(2) > it says “it shall be a matter…”; “prejudice the legitimate interests of the author” + it refers to reproduction only!

TRIPs, Art. 13 > it says “MSs shall confine limitations or exceptions…” > it is more prescriptive than the Berne Convention (expansionist treaty); “prejudice of the legitimate interests of the right holder” > this notion is broader than “author” (includes the performer, the

broadcastingorganization ecc…) >> both natural persons + corporations! > refers to all the exclusive rightsgranted by TRIPs agreement and Berne Convention (distribution, public performance ecc…)
➢ WIPO © Treaty, Art. 10(2)

How restrictive is the 3 step test? > question addressed once to the WTO level!
➢ WTO Panel Decision re US © - § 105(5) (exemption for the broadcasting of music in public places):“business exemption” for broadcast of music in public places violates art. 13/”homestyleexemption” can stay!!

1. “Certain” = well-defined (as a matter of legal certainty > legislator should not leave uncertainty asto the scope of the exemption), “special” = exceptional, narrow (but no question on underlyinglegitimacy)
2. “No conflict with normal exploitation” = no economic competition
3. “Unreasonable prejudice” = normative considerations: certain amount of prejudice may be

justified by the purpose of the exception

➢ Are open-ended exceptions compatible with the 3 step test (like fair use)? General argument: yes, it is!

➢ Exceptions with "equitable remuneration" > steps 2 and 3 of the test! 19

International level > open-ended VS closed systems of exceptions:

1. US "fair use" defense (open-ended exception) - 17 U.S.C. §107
   • A judicially-created defense (originated with Folsom v. Marsh), codified in the Copyright Act 1976
   • Exemplary list of permissible uses ("such as...") coupled with a four-factor analysis to be applied on a case-by-case basis
   • The doctrine has been applied to a number of non-codified creative uses (like parody, mash-up, sampling) and technological uses (thumbnails, linking, digitization).
2. EU system of exceptions and limitations - InfoSoc Directive, art. 5 >> the legislator should specify what are the acts that are exempted.

Only uses statutorily exempted are permitted,

1. Like quotations, private use, education…
2. Limited scope for judicial analogical application
3. Some exceptions are remunerated (exemption from private copying)

Different legal approaches:

1. Enumerated list of exceptions and limitations (Italy, France, Belgium, Switzerland, Sweden, Spain)
2. Enumerated exceptions + “free utilization” (Germany)
3. “Fair dealing” (UK, Canada, Australia)
4. “Fair use” (USA)

Art. 5(5) InfoSoc Directive >> 3 step test, in France, is a direct applicable rule!

“The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right holder”.

FAIR USE is a general exemption born at common law and then was codified as §107 of the Copyright Act!

General notion of fair use, “for purposes such as…”

and a list of factors to be considered in order to determine whether the use is an infringement of © or is a fair use.

20Case law (Supreme Court):

The Sony-Betamax case (1 case of the Supreme Court) > Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)

When this device was marketed and advertised, the Hollywood Studios sued Sony Corporation for © infringement > question is whether the making of copies of whole TV programs at home, for later viewing, is © infringement or fair use. More important question is whether the supply of these devices was © infringement.

The Supreme Court held /by a five to four majority) that the making of individual copies of complete television shows for purposes of time-shifting (I record it now to watch it later) is fair use. This for 2 principal reasons:

1. Because time-shifting merely enabled viewers to see works which they had been invited to watch in their entirety free of charge, the fact that the entire work was reproduced,

did not militaterdagainst a finding of fair use >> the 3 factor is the substantiality and the amount of what is taken(in this case the whole of it).2. Because the plaintiffs had offered no convincing evidence of market harm, the non-commercial usethof the VCR by consumers should be considered fair use >> 4 factor!So, videorecording at home is fair use and not © infringement and then the supply of videocassetterecording machines is not contributory infringement!

Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)

This case is about a book by Gerard Ford (President that succeeded Nixon after the Watergate scandal), “ATime to Heal”, and the publisher licensed the Time Magazine to publish some exerts of the book beforerelease (UK and US happens). The Nation, a competing magazine, had access to the unpublished book fromundisclosed source and they published quotes and paraphrases of the book, which ruined the exclusivelicense of Time Magazine >> Time