October 2009 - The Reguligence Weblog

30 October 2009

German Constitutional Court backs the private copying exception

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In a very current decision, the German Constitutional Court

Rejected the Constitutional Complaint

of several phonogram producing companies. The companies in question demanded changes to section 53 (1) of the German copyright act that was amended as recently as of 1 January 2008. Section 53 is part of chapter 6 of the act which deals with limitations to copyright. In particular, section 53 provides that reproductions are permitted for the purpose of individual uses (that is, the use by the person making the copy).

The complainants asserted that section 53 (1) interfered with their constitutionally guaranteed right on property.

The Court rejected the complaint, however, on the grounds of late filing.
Apart from that,

The Court Affirmed That Private Copying Applied to Digital Works

since the 2003 amendments to the copyright act.
Seemingly, the Court opined, the legislator did not intend to undertake changes thereto in the course of the recent 2008 amendments.

The Court further advised on the obligation of manufacturers of copying devices to pay levies (eventually paid by consumers of such devices) that forms a balance to the private copying use.

All in all an important clarification for nowadays’ use of copyright works.

29 October 2009

Commission steps up UK legal action over privacy and personal data protection

The European Commission has moved to the second phase of an infringement proceeding over the UK to provide its citizens with the full protection of EU rules on privacy and personal data protection when using electronic communications. European laws state that EU countries must ensure the confidentiality of people’s electronic communications like email or internet browsing by prohibiting their unlawful interception and surveillance without the user’s consent. As these rules have not been fully put in place in the national law of the UK, the Commission today said that it will send the UK a reasoned opinion.

Specifically, the Commission has identified

Three Gaps In the Existing UK Rules

governing the confidentiality of electronic communications, namely:

No Independent National Authority

to supervise interception of communications, although the establishment of such authority is required under the ePrivacy and Data Protection Directives, in particular to hear complaints regarding interception of communications;

No Need To Grant Explicit Consent

The current UK law the Regulation of Investigatory Powers Act 2000 (RIPA) authorises interception of communications not only where the persons concerned have consented to interception but also when the person intercepting the communications has ‘reasonable grounds for believing’ that consent to do so has been given. These UK law provisions do not comply with EU rules defining consent as freely given specific and informed indication of a person’s wishes;

No Sanctions Against Unlawful Interception

The RIPA provisions prohibiting and providing sanctions in case of unlawful interception are limited to ‘intentional’ interception only, whereas the EU law requires Members States to prohibit and to ensure sanctions against any unlawful interception regardless of whether committed intentionally or not.

The UK has two months to reply to this second stage of the infringement proceeding. If the Commission receives no reply, or if the response presented by the UK is not satisfactory, the Commission may refer the case to the European Court of Justice.

To me, this is a clear signal that data protection and privacy are considered highly valuable achievements that need to be protected within the European dimension.

27 October 2009

Making ringtones available to customers does not infringe public performance right

This is the outcome of an opinion & order issued by the District Court for the Southern District of New York in Verizon v. American Society of Composers, Authors, and Publishers (ASCAP).

ASCAP is a membership association of more than 360,000 U.S. composers, songwriters, lyricists, and music publishers of every kind of music. ASCAP licenses the public performance right in musical works established in 17 U.S.C. § 106(4).

ASCAP argued that

Verizon Engaged in Public Performances

of musical works when it made ringtones available to its customers. ASCAP contended that Verizon’s transmission of a ringtone to a customer’s cellular telephone was a public performance and thus required a public performance license. In addition, ASCAP argued that Verizon was both directly and secondarily liable for public performances of musical works when customers played ringtones on their telephones.

With respect to the transmission of ringtones to customers, the court found that even while the customer could listen to the download as it was being received, and contemporaneously perceive it as the musical work, that would not constitute a public performance. Regarding Verizon’s liability for its customers’ behaviour, the court opined that, besides the lack of a connection between Verizon’s sales and customers’ use of ringtones,

ASCAP Had Failed

to show any infringement of its members’ rights by the playing of ringtones in public from Verizon’s customers’ telephones. Thus the customers were not liable for copyright infringement, and neither was Verizon.

This court’s order & opinion is of interest and importance when dealing with digitised works. They make fine distinctions in terms of exercising exclusive rights under copyright law and set boundaries for the infringement thereof.

In my view a very good guidance to practitioners.

17 October 2009

New and freely available database on copyright

Recently I received an email informing me about a newly launched service that is available free of charge and that provides a good knowledge in terms of copyright.

The service in question is KB:Law, where users can find answers to numerous questions dealing with copyright and related rights, mainly arising from the jurisdictions of Austria and Germany. Users will, however, find some matters of interest also from the realms of UK, US and Spanish law.

Obviously, the makers of this database desire to propagate copyright acknowledge among laymen as well as to ease legal practitioners’ access to useful information for their research.

A good example to follow!

2 October 2009

Even communist prapaganda films pirated in China

Yes, it may sound a bit strange and it definitely is – not even propaganda films are safe from being unlawfully reproduced in the reign of the dragon.

As Associated Press reports, police in China are hunting down illegal copies of two new propaganda films made in honor of the nation’s 60th anniversary. These are the historical epic “The Founding of a Republic” and the World War II-era drama “The Message” that are currently being sold as fakes.

Is this going to be the last straw to break the Chinese law enforcement camel’s back?

We will see.

The Reguligence Weblog

German Constitutional Court backs the private copying exception

Rejected the Constitutional Complaint

The Court Affirmed That Private Copying Applied to Digital Works

Commission steps up UK legal action over privacy and personal data protection

Three Gaps In the Existing UK Rules

No Independent National Authority

No Need To Grant Explicit Consent

No Sanctions Against Unlawful Interception

Making ringtones available to customers does not infringe public performance right

Verizon Engaged in Public Performances

ASCAP Had Failed

New and freely available database on copyright

Even communist prapaganda films pirated in China

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