CJEU Judgment Will Help Rightsholders Create New Services for Consumers and Protect Their Content Online

by Chris Marcich 02/13/2014 07:54 (UTC-08:00) Pacific Time (US & Canada)

Today, the Court of Justice of the European Union (CJEU) handed down a significant judgment in the Svensson case confirming that linking to protected content that is made available without consent, or made available on a restricted access basis, for example on legal video steaming platforms, infringes copyright.

This is an important judgment because it clarifies the concept of what constitutes an act of communication to the public with regard to linking.  More importantly though, it reinforces the legal framework to develop legitimate online services for  consumers.  Today, Europeans have access to more legal sites on a variety of devices than ever before, including over 3,000 on demand video services.

The movie industry is working every day to develop new, innovative and consumer-friendly legitimate platforms to deliver the shows and movies audiences want.  The harsh reality is that the growth of the legal market is constantly hindered by sites that provide protected content without permission free of charge.  With this judgment, the CJEU confirms that the rightsholders have the power to define what public their protected work is intended for.  Any link that would create other than the originally intended public constitutes an unauthorized act of communication to the public and thereby infringes copyright.

In the Nils Svensson and Others v Retriever Sverige AB verdict, the court states that if the rightsholder makes available a work without restrictions on the Internet, any linking to that content would not create a new public and is therefore authorized.

We have always defended the fact that if there are creators who wish to offer their work to the public at no cost and without any restrictions - they have every right to do so.  But for those who create content for a living, they should not have to accept a world in which their content can be highjacked, for example through illegal linking and torrent sites, without consequences.  Today's judgment reconfirms this fundamental fact and will push pirate sites further into the dark shadows of the Internet.

Today's judgment further supports the view that the EU's copyright regime is fit for purpose.  The CJEU and national courts can provide important interpretations as and when needed.

Another Important Milestone in Russia in Building an Online Creative Marketplace

by Chris Marcich 12/18/2013 12:50 (UTC-08:00) Pacific Time (US & Canada)

Russia is an important and growing market for both its own domestic and international film and television industry with an active national creative community that supports thousands of jobs, including people who work in production, post-production, theatres, video shops and online legal services.  In 2012, Russia had the ninth largest international box office market, with $1.2 billion in ticket sales.  

The Russian government took an important step in August to bolster the copyright protection that is at heart of this industry and approved its new anti-piracy law.  This was a clear recognition of the fact that creativity, cultural content and expression are vital to any society, and if a country cannot protect the creative ideas of its people, the country loses not only the economic benefits, but the ability to market itself to the world.

In another important step forward, rights-holders and a number of user-generated-content (UGC) sites signed a Memorandum of Understanding yesterday, which will help both Russian and international film, television and Internet companies further develop the rapidly growing legal online marketplace.  This milestone was spearheaded by the Federal Service for Supervision of Communications, Information Technology and Communications.  The MOU takes effect in early 2014 and will include a voluntary commitment to take preventative measures against piracy including a system involving fast track notice and take down of infringing content that is placed on their sites.

This important initiative highlights that responsible actors within the Internet ecosystem can take meaningful steps toward a shared, voluntary effort that will curb copyright infringement online and lead to more high-quality, legitimate choices.

We must all play by the same rules.  No one should be allowed to profit off of others’ hard work and original ideas.  It will take a shared, voluntary effort from all involved to institute better rules of the road, which will help foster creativity and innovation.  And in Russia, those responsible players who signed the MOU have shown us that this is possible. 

ISPs and Search Engines must play by the same rules - French court ruling in the ‘Allostreaming’ case sets a precedent

by Chris Marcich 12/04/2013 11:29 (UTC-08:00) Pacific Time (US & Canada)

On 28 November, the Paris Regional Court paved the way toward a more responsible Internet by requiring greater involvement of ISPs and search engines in the fight against piracy online. The proceedings were initiated by the French theatrical distributors (FNDF), the French video distributors (SEVN) and the local producers association (APC) against ISPs to block access to the pirate streaming websites "Allostreaming.com", "AlloshowTV.com", "Alloshare.com" and "Allomovies.com", as well as search engines to stop indexing these sites.

In terms of blocking access to sites that are manifestly and substantially pirate, this case confirms the practices obtained in other EU Member States in dealing with rogue sites in a balanced and proportionate way by using procedures sanctioned by EU legislation. The unique aspect of this decision is that all major search engines active in France are ordered to effectively de-index the 16 copyright infringing sites. That is a worldwide precedent.

We have long called for more responsible involvement from search engines. For all rightholders, the decision in France reinforces what we have long known to be a fact: search engines are the gateway to the Internet and as such have a special responsibility in ensuring that consumers are led to the multitude of legal platforms and services rather than to illegal money-making sites.

Equally gratifying was the opinion issued by the Advocate General Cruz Villalon on 26 November in the kino.to case that the Austrian Supreme Court referred to the Court of Justice of the EU (CJEU). The AG states that blocking access to substantially infringing websites that refuse to legitimise their approach is a proportionate and valid measure to be implemented by ISPs. In his opinion, he also refers to the role of search engines in finding illegal content online.

All of us in the internet ecosystem share a responsibility to take meaningful steps to curb copyright infringement online. We are fully aware of our responsibility and have been working hard to develop innovative, legitimate and consumer-friendly platforms. Online options are booming and more than ever, consumers can view shows and movies when they want them, wherever they want them. The legal precedent set in France last week, reaffirms that search engines bear a responsibility, too, and must take real action to stop directing consumers to infringing sites. 

Study shows European citizens view IP positively

by Chris Marcich 11/26/2013 08:14 (UTC-08:00) Pacific Time (US & Canada)

That IP-intensive industries are drivers of innovation, growth and jobs shouldn’t come as a surprise to anyone.  Certainly it is something that the creative industry has been championing for a number of years.  The study undertaken by the Office of Harmonization in the Internal Market (OHIM) and the European Patent Office (EPO) that was presented at the end of September, strongly confirms this claim and actually shows the IP-intensive industries overall contribute 26% of employment and 39% of GDP in the EU.  Within this, the core copyright-intensive industries generate 9.9 million jobs, contribute approximately EUR 230 billion and generate a trade surplus.

Yesterday, the OHIM released another important study, one which shows that European citizens view intellectual property and its social and economic contributions positively.  This is certainly very encouraging, especially when one looks at the overwhelming majority with which Europeans believe that IP is important.  This EU-wide study found that 86% agree that protecting IP contributes to improving the quality of products and services. And 69% of those questioned value IP because they believe it contributes to the creation of jobs and economic well-being. As a result, they condemn IP infringements.

But the study also clearly points to a gap between words and actions and shows that the EU faces a challenge in ensuring that its citizens understand what these values mean in practice when they enjoy films, TV shows and other creative works.  And so as online content offers in the EU are booming and the movie industry continues to provide sustainable legal platforms and services for all Europeans, the challenge we now face is to educate citizens about what it takes to make a movie and that the impact of piracy is not just on companies and stars but also on the hundreds of people involved in the movie-making process.  Whether we know them personally or not, they are citizens, neighbors, parents, and friends.  We love what they make and should respect and reward their creativity and originality.

Launching the Creativity Works! coalition

by Chris Marcich 10/21/2013 10:24 (UTC-08:00) Pacific Time (US & Canada)

More than 150 creators, creative sector organizations and EU policy-makers came together this past week to celebrate the launch of Europe’s new Creativity Works! Coalition.  This new alliance of directors, publishers, designers, broadcasters, and creators of all kinds is seeking to promote an open-minded and inclusive debate among politicians, decision-makers and other important stakeholders about the importance of creativity in the digital age.

The creative community stands as a vital component of both current and future economic growth across the European Union. More than 14 million people make up Europe’s creative community.  IP-intensive industries contribute 26% of employment and 39% of EU GDP, within which the copyright-intensive industries play an important part. Europe’s cultural and creative sectors also make a significant social contribution, communicating cultural and social values, creating shared experiences throughout and beyond Europe’s diverse population.

Bringing together such a diverse group of people to champion creativity is a worthy endeavor.  Listening at the event to the various contributions made by creatives from different sectors, it’s clear we are all united by the one challenge we face: how to build an online world where artists can flourish; where the brightest ideas become winners; where content and the platforms that deliver it are equally important; and above all, where consumers have a stake in the process. This is the best contribution the creative sectors can make to cultural diversity, growth, jobs and ultimately the strength of the European Union itself.

 

A Step Closer to an Internet that Values Freedom of Expression, Freedom of Information and the Freedom to Protect the Things We Create and Own

by Chris Marcich 03/18/2013 05:08 (UTC-08:00) Pacific Time (US & Canada)

This past Thursday's decision by the European Court of Human Rights to reject the application of The Pirate Bay founders Frederik Neij and Peter Sunde clearly draws a line in the sand and demonstrates that criminal conduct should result in appropriate and proportionate punishment.  Last year, Mr. Sunde and Mr. Neij filed a complaint with the EU Court of Human Rights on the basis that their criminal conviction (for operating TPB) violated their rights of freedom of expression under the Article 10 of the Convention.  The EU Court of Human Rights did not see it that way and concluded that the application was “manifestly ill-founded”.
 
What we have seen in the past is that the term “freedom of expression” has been hijacked by those who operate and provide Internet access to illegal sites under the pretext of doing so for the greater good of society.  And the entertainment industry has too often been accused of oppressing freedom of speech because it is trying to protect the artists and creators who have invested time, their creative talent and money in developing films and shows.
 
It is gratifying to see that the EU Court of Human Rights was not receptive to such an argument and rather focused on the fact that the activity both Sunde and Neij had been convicted for – the distribution of materials most of which protected by copyright – could actually not be equaled to “political expression and debate”.
 
The concept of “freedom of expression” and what it stands for is far too important to be bantered around and used as a smoke-screen for irresponsible and sometimes even illegal activity on the Internet.  And it is certainly not the case that the entertainment industry is seeking to censor the Internet or to stifle free speech.  Free expression is the cornerstone of our industry and we would not exist without it.
 
The Internet is a central part of our lives.  Citizens across the world, particularly young people, care about it passionately.  So do we.  We just want to ensure the Internet works for everyone.  We want an Internet where the creative property of artists and creators is protected along with the privacy and security of all users.  An Internet where the values society holds dear in the offline world, shape how we interact online.  And yes, these include freedom of expression, freedom of information and the freedom to protect the things we create and own.
 
Today, we are one step closer to achieving such an Internet.
 

ACTA Important for Consumers, Workers

by Chris Marcich 07/03/2012 05:17 (UTC-08:00) Pacific Time (US & Canada)

On July 4th, the European Parliament will vote on the Anti-Counterfeiting Trade Agreement – a treaty that should be supported. This treaty would reward the millions of hours of hard work and creativity put into Europe’s cultural and manufacturing sectors while also allowing for consumers to receive reliable, high-quality, and safe products.

ACTA is a useful and important step towards attaining a more balanced and ordered system for trade in IP-based goods and services. Unfortunately, there are rampant negative rumors about the treaty that are causing widespread misconceptions about its scope and intent. Some points of clarification about the most prominent falsehoods. First, the treaty will protect the rights of hard-working individuals in countless industries rather than just assist the entertainment industry as opponents have claimed. Second, the treaty will not restrict the rights of anyone nor will it “break the internet”. Far from being a secret internet censorship police force, the treaty will simply work to ensure the limitation of merchandise, both physical and digital, making its way illegally across international borders.

Measures like those contemplated by ACTA are necessary to ensure the future growth and sustainable development of the general economy and society in Europe. If we hope to continue to be seen as a place of innovation, creativity, and quality we must take part in the move into the future. This international agreement will follow all EU laws while protecting the hard-work of EU right holders in foreign markets and improving the safety and quality of the market for consumers. Such a development would allow for the strengthening of job positions for the approximately 120 million people already employed in IP-reliant fields throughout Europe while also permitting the sectors to improve prospects for the creation of new jobs.

If clarifications are needed to confirm the facts, let them be provided. If lessons need to be taken about the handling of future international trade negotiations to improve transparency, let them be learned and applied prospectively. But let us not sacrifice a good agreement that is itself innocent of the nefarious charges against it simply to make a point. It is too high a price to pay for those whose livelihoods depend on IP and for future economic growth in Europe.

Agreements like ACTA are the economic necessities of the future and we urge a considered, responsible, and informed decision at its plenary vote.

Another Win for the Creative Sector - Illegal Website Newzbin2 will be Blocked by UK’s Largest ISP

by Chris Marcich 10/26/2011 16:52 (UTC-08:00) Pacific Time (US & Canada)

In a landmark ruling, BT, Britain’s largest internet service provider, has been ordered by the High Court in London to block access to the illegal website Newzbin2 within 14 days.  This is the first time a website has been blocked by an ISP in the UK under copyright law and sets an important legal precedent going forward.

Newzbin2 features stolen content on their website, providing unlawful copies of film, television, games, music, and other creative material.

In March 2010, Newsbin 2’s predecessor Newzbin was found to be infringing copyright and was ordered by the High Court to filter out the illegal content. The site did not comply with the order and re-launched itself as “Newzbin2”. The new site is based outside of the UK and its owners are operating anonymously.

After Newzbin refused to filter infringing content, the MPA had no option but to ask Britain’s largest ISP to block the site. The High Court ordered BT to block the site in July and the details on the implementation of that blocking order were released today.

Today’s news has been widely welcomed across the UK’s creative industries.  Newzbin has profited to the tune of over £1 million per year from wholesale content theft and this injunction will go a long way in stopping their unlawful profit stream.

Lord Puttnam CBE, President of the Film Distributors' Association, had the following to say: “This is a very significant day for the UK’s creative industries.  The law is clear. Industrial online piracy is illegal and can be stopped.”  

Today’s ruling was also welcomed by BT.  A spokesman for the telecom giant called the ruling "helpful” because of the “clarity that it brings." The block will also apply to any variations of the Newzbin site to prevent operators of Newzbin from circumventing the law.

In the future, content creators and distributors should be able to secure greater cooperation from ISPs to address sites that are focused on wholesale copyright theft.

This precedent is essential because the growth of the legal download market is thwarted by sites such as Newzbin 2, which offers stolen content and destroy jobs for honest citizens.   


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