on the CJEU

Report
XVth ANNUAL CONFERENCE ON
COPYRIGHT AND RELATED RIGHTS
organized by the CROATIAN COPYRIGHT SOCIETY – ALAI CROATIA
in co-operation with
Faculty of Law, University of Zagreb and
the State Intellectual Property Office of the Republic of Croatia
Zagreb, 21 November 2014
RECENT CJEU COPYRIGHT DECISIONS – NEW TRENDS
(IN THE HOPE OF EVEN NEWER TRENDS)
Dr. Mihály Ficsor,
Member of the Board and Hon. President of the Hungarian Copyright Council
Former Assistant Directore General of WIPO
I. INTRODUCTION
M. Ficsor, Zagreb, 21 November 2014
2
Poetic disclaimer
JÓZSEF Attila: Érted haragszom, nem
ellened
Érted haragszom én, nem ellened;
nosza szoritsd meg a kezem,
mellyel magosra tartalak álmaimban,
erősitsen az én haragom,
dehogy is bántson, kedves.
Attila JÓZSEF, Hungarian poet
(1905 – 1937)
Attila JÓZSEF: Angry for and not against
you (translation: Katalin N. Ullrich)
I am angry for and not against you;
come on, grasp my hands holding you high
in my dreams,
my anger should make you stronger,
by no means hurt you, dear.
M. Ficsor, Zagreb, 21 November 2014
3
Introduction and theses
1. No judicial activism!
2. Respect for Montesquieu!
3. Freedom for Sisyphus!
4. Healthy hierarchy!
5. No service for stupid questions!
6. Don’t trust an RH negative Guide!
7. Don’t try to reinvent the wheel!
8. No „veterinary horses” !
9. No Frankenstein!
10. No Russian roulette!
M. Ficsor, Zagreb, 21 November 2014
4
II. EXAGGERATED CRITICISMS (?)
AND REAL PROBLEMS
M. Ficsor, Zagreb, 21 November 2014
5
Exaggerated criticisms ? (1)
Opinion of an academic specialized in constitutional law:
The…fundamental Court of Justice’s task, when ensuring that in the
interpretation and application of the Treaties the law is observed,… is to
provide national courts with authoritative guidance. However, to be able to
speak with authority, the Court must speak clearly and persuasively. This
cannot be done if it pulverizes its authority into hundreds of (sometimes)
contradictory and (often) insufficiently reasoned answers. The current
system of preliminary reference, which undermines national judicial
structures by allowing the lowest parts of the judicial pyramid to talk
directly to the ultimate interpretative authority, has negative effects both
for the national judicial process and for the Court of Justice’s mission.
Jan Komárek: „In the Court(s) We Trust? – On the need for hierarchy and
differentiation in the preliminary ruling procedure”, to be found at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=982529.
M. Ficsor, Zagreb, 21 November 2014
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Exaggerated criticisms? (2)
Opinion of an academic specialized in copyright.
„Consitututional” problems:
 Conflicts with el TFEU on the competence of Member States:
“[T]he ECJ used legal lacunae to seize new powers and delve into areas that
Member States considered to be their own exclusive realm”.
 Conflicts with Montesquieu’s principle on the
separation of powers; de facto amendmenst of
the existing legislative norms by „preliminary
rulings”.
Lionel Bently: „Harmonization by Stealth – Copyright and
the ECJ”; to be found
Fordhamipconference.com/wp-content/uploads/
2010/08/Bentley_Harmonization.pdf.
M. Ficsor, Zagreb, 21 November 2014
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Exaggerated criticisms? (3)
Opinion of the President of an important European NGO of practicing laywers in
the field of intellectual property.
Declaraction of Jochem Pagenberg, President of the European Patent Lawyers
Association (EPLA) on the idea (in the meantimem rejected) to choose the CJEU
as the judicial forum of the unitary patent system of the EU:
„If one wants a really unattractive, inefficient, unpredictable and probably
extremely expensive patent court system, then we will get it; one must only
give the ECJ a chance to receive as many referrals in patent law as possible.
If one wants to see substantive patent law in Europe to be decided by
judges without any solid knowledge and experience in this field, then one
must involve the ECJ whenever possible. And if somebody intended to lay a
solid ground for failure of this - at some time very promising - project, then he
will probably succeed.”
(To be found at www.eplaw.org/Downloads/President’s%Report.pdf.)
M. Ficsor, Zagreb, 21 November 2014
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Exaggerated criticisms? (4)
Opinion of one of the ex-Presidents of the economically most important
Member State of the E.U. Roman Herzog, ex-President of Germany (an
outstanding constitutional lawyer) on the CJEU:
„The cases described show that the ECJ deliberately and systematically
ignores fundamental principles of the Western interpretation of law, that
its decisions are based on sloppy argumentation that it ignores the will
of the legislator, or even turns it into its opposite, and invents legal
principles serving as grounds for later judgments.”
(To be found at
http://www.cep.eu/fileadmin/user_upload/Preseemappe/CEP_in_dem_Medien/Herzog
-EuGH-Website_eng.pdf.)
M. Ficsor, Zagreb, 21 November 2014
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Yes, exaggerated (1)
Exaggerated because there are a number of judgments of the CJEU that may
be welcome, such as
•
•
•
•
•
Pro Musicae (C-275/06)
Infopaq (C-302/10)
Google Spain (C-131/12)
Innoweb (C-202/12)
UPC Telekabel (C-314/12)
•
•
•
•
•
L’Oréal v. eBay (C-324/09)
Nintendo (C-355/12)
CISAC (T-442/08)
OSA (C-351/12)
Deckmyn (C-201/13)
M. Ficsor, Zagreb, 21 November 2014
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Yes, exaggerated (2)
•
•
•
•
•
•
Exaggerated because even in some of the cases against which criticism is justified
(such as in the SGAE and TvCatchup cases leading to Swenson – see below), the
intention of the CJEU was honest…
… and even the results of the judgments were not necessarily negative in the
given concrete cases (just the contrary, for example, from this viewpoint, the
SGAE judgment can only be warmly praised).
The problem is that those judgments were based on erroneous interpretation of
the existing norms and wrong legal constructions with detrimental subsequent
consequences.
However, it would not be correct to blame the judges of the CJEU for such
errors committed in spite of their honest intentions and efforts.
The explanation of such errors may be found in the inadequate regulation of the
competence and procedural rules of the Court.
This objective of this presentation is to outline how such errors may be avoided.
M. Ficsor, Zagreb, 21 November 2014
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Problems that do exist (1)
The basic source of the problems: Article 267 of the TFEU:
„The Court of Justice of the European Union shall have jurisdiction to give
preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or
agencies of the Union;
Where such a question is raised before any court or tribunal of a Member
State, that court or tribunal may, if it considers that a decision on the
question is necessary to enable it to give judgment, request the Court to give
a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal
of a Member State against whose decisions there is no judicial remedy under
national law, that court or tribunal shall bring the matter before the Court.”
(Emphasis added.)
M. Ficsor, Zagreb, 21 November 2014
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Problems that do exist (2)
• The judicial system of the E.U. is much more centralized and federalist
than the judicial system of the U.S.A. which is a federal state (although
the E.U. – fortunately – is not a federation).
• The CJEU also functions as first-instance court – but without the
possibility of appeal. At the same time, the judgment of the CJEU has
the effect of res iudicata in all the Member States of the E.U. There is no
healthy judicial hierarchy.
• The first-instance courts quite frequently ask questions from the CJEU
that a duly prepared judge – or even a university student with good
chance to pass an exam – would have to be able to answer adequately
(and which would certainly be answered by higher courts in the Member
State without any difficulty) or simply stupid questions.
M. Ficsor, Zagreb, 21 November 2014
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Problems that do exist (3)
• As a result of the fact that the CJEU functions (i) as first instance court,
(ii) as second-instance court, and time and again rarely (iii) as a real
supreme judicial forum of the E.U., it is inundated by a drastically big
amount of preliminary questions and it is constrained to make constant
Sisyphean efforts.
• It is very rare that the Supreme Court of the U.S.A. intervenes in
copyright cases (once in two or three years). In contrast, the CJEU adopts
copyright judgments very frequently; nearly every month.
• The numerous and frequent cases to deal with increases the danger of
badly prepared and contradictory rulings.
M. Ficsor, Zagreb, 21 November 2014
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Problems that do exist (4)
Alarming statistical comparison of the cases accepted by the U.S. Supreme
Court and the CJEU:
• In 2013, the CJEU completed 701 cases, which meant significant increase
compared with 2012 when only 595 cases were completed. At the same
time, 699 new cases were referred to the CJEU, representing further 10%
increase. (Source: press release No. 34/14 del TJUE).
• In contrast, the adoption of writs of certiorari by the U.S. Supreme Court
is very rare. From 30 June 2011 to 2 July 2012, the Court received no less
than 7.654 submissions and only adopted 63 writs (less than 0.9%!)
(source: http//dailywrit.com/2013/01/likelyhood-of-a-petition-beinggranted/).
M. Ficsor, Zagreb, 21 November 2014
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Problems that do exist (5)
• Due to the present unfortunate rules of the preliminary ruling system, the
CJEU has to deal with cases in which the legal issues have not been
sufficiently debated and – as a consequence – the underlining legal
constructions have not been duly developed (as it takes place in a healthy
judicial structure).
• It is a dangerous source of erroneous judgments that the non-specialized
judges of the CJEU are not adequatly informed. Sometimes „they try to
reinvent the wheel” in the sense that they try to solve legal issues
through improvised theories based on what they consider appropriate
from the viewpoint of some general principles of equity and rationality –
when, in fact, the solutions are available in a ready-made manner in the
existing norms that they are obligated to apply.
M. Ficsor, Zagreb, 21 November 2014
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Problems that do exist (6)
• This is aggravated by the fact that the rules of the prejudicial questions
do not guarantee sufficiently participatory and transparent procedures.
• Only the parties concerned, the Commission, the Advocate General and
some governments present legal arguments.
• The procedural institution of amici curiae – which is an important
guarantee in the U.S.A. for duly informed rulings by the Supreme Court –
is missing.
M. Ficsor, Zagreb, 21 November 2014
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Problems that do exist (7)
•
For example, in the American Broadcasting Companies, Inc., et al., v. Aereo, Inc.,
case – in which the U.S. Supreme Court ruled on 25 June 2014 that Aereo had
infringed the right of communication to the public – more than 10 amici curiae
documents had been submitted. And just one of the more than 10 was presented,
among others, by a number of interested organizations, such as
 CISAC, FIM, FIA, SCAPR, IFPI, FIAPF, Australian Copyright Council, British
Copyright Council and various national societies and NGOs,
and specialized experts of the topic such as
 Jay Dougherty, Mihály Ficsor, Ysolde Gendreau, Justin Hughes, Marshall Leafer,
Silke von Lewinski, Victor Nabhan and Barry Sookman.
•
In the absence of sufficient sources of information and throrough legal analysis, it
is in a way programmed that the non-specialized and badly informed judges of
the CJEU may adopt erroneous judgments. This is like a Russian roulette
sometimes with unfortunate victims.
M. Ficsor, Zagreb, 21 November 2014
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III. USEDSOFT OR THE
„TERMINATOR JUDGMENT” –
AN EXAMPLE OF THE CJEU’S
EXCURSION IN THE LAND OF
LEGISLATORS
M. Ficsor, Zagreb, 21 November 2014
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The CJEU legislataing through UsedSoft (1)
In UsedSoft v. Oracle, the subject matter of the dispute was Oracle’s
programs covered by an end-user license agreement (EULA). The EULA
contained a term forbidding the licensee to transfer the computer program to
a third party. UsedSoft, a company based in Germany, allowing its costumers
to “resell” through its online system, programs covered by the licenses.
The CJEU held that the exhaustion of the right of distribution is also
applicable for copies of computer programs made through online
transmissions (CJEU case C-128/11). The CJEU erred for several reasons and
adopted new law by practically amending the existing EU norms (to which
its competence does not extend under the EU Treaty).
M. Ficsor, Zagreb, 21 November 2014
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The CJEU legislataing through UsedSoft (2)
The CJEU has quoted Recital (29) and Article 3(3) of the Information Society
(Copyright) Directive but it has adopted a ruling which is in conflict with
them:
Recital (29): „The question of exhaustion does not arise in the case of
services and on-line services in particular. This also applies with regard to a
material copy of a work or other subject-matter made by a user of such a
service with the consent of the rightholder. .. Unlike CD-ROM or CD-I, where
the intellectual property is incorporated in a material medium, namely an
item of goods, every on-line service is in fact an act which should be subject
to authorisation where the copyright or related right so provides.
Article 3(3): The rights referred to in paragraphs 1 (the right of reproduction)
and 2 (the right of communication to the public, including making available
to the public) shall not be exhausted by any act of communication to the
public or making available to the public as set out in this Article.
M. Ficsor, Zagreb, 21 November 2014
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The CJEU legislataing through UsedSoft (3)
When a „used” program is uploaded to the UsedSoft system, a new
copy is made which is covered by right of reproduction.
The right of reproduction cannot be „exhausted” under the
international treaties and the „acquis communautaire.” The acts of
making copies through transmission may be characterized as „sale”
or „distribution.” This is not the real issue; this is in accordance with
the principle of „relative freedom of legal characterization” of acts
covered by protected rights mentioned above. However, a specific
legal characterization cannot change the nature and the level of
protection of the rights involved (with possible limitations allowed or
not allowed), in this case the right of reproduction – and of course the
right of making available to the public which is also covered by the
overall charcterization as „distribution.”
M. Ficsor, Zagreb, 21 November 2014
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The CJEU legislataing through UsedSoft (4)
In spite of this, The CJEU ruled that the right of making available
characterized by it as „distribution” and the right of reproduction in
respect of making copies through online transmission is exhausted by
making making a copy through transmission – an act covered by the
right of making available under bot the WIPO Treaties and the
Directive.
This is in conflict with the international norms and the acquis
communautaire.
M. Ficsor, Zagreb, 21 November 2014
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The CJEU legislataing through UsedSoft (5)
• The CJEU has tried to defend its ruling on the basis that the Computer
Program Directive (adopted in 1991; consolidated in 2009) is lex specialis
in relation to the Information Society (Copyright) Directive and that its
position is based on specific provisions of the Computer Programs
Directive differing from the general provisions of the Information Society
(Copyright) Directive.
• This argument cannot stand any serious scrutiny. It is really true that,
under Article 1(2) of the Information Society (Copyright) Directive, it
leaves intact and no way affects the provisions of the previously adopted
five copyright directives, including the Computer Programs Directive.
However, this does not mean that, where there is is no specific rule (lex
specialis) not the lex generalis of the Information Society (Copyright)
Treaty would apply in accordance with the WIPO treaties.
• There is no specific provision in the Computer Programs Directive – zero
– which would serve as a basis for the CJEU’ preliminary ruling.
M. Ficsor, Zagreb, 21 November 2014
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The CJEU legislataing through UsedSoft (6)
In the UsedSoft case, the CJEU judges tried to play Terminators
going back to the past to change it in order to transform the
presence the way they wanted to see it. Arnold Schwarzenegger
succeded in such a role; they have failed.
M. Ficsor, Zagreb, 21 November 2014
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The CJEU legislataing through UsedSoft (7)
For more details on the „Terminator judgment”, see M. Ficsor:
„Relevance of Exhaustion of Rights in the Digital Environment”
to be found at
www.alaicartagena2013.com/index/php/congress/papers.
M. Ficsor, Zagreb, 21 November 2014
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IV. AN EXAMPLE OF BAD
QUESTIONS AND, THUS,
MISLEADING (IDEOLOGY-BASED)
ANSWERS: THE SABAM
JUDGMENTS
M. Ficsor, Zagreb, 21 November 2014
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The right ruling forgotten: L’Oréal
L’Oréal and others v. eBay and others (case C-324/01)
 In order for an internet service [hosting] provider to fall within the scope
of Article 14 of Directive 2000/31, it is essential that the provider be an
intermediary provider within the meaning intended by the legislature in
the context of Section 4 of Chapter II of that directive.
 This is not the case where the service provider, instead of confining itself
to providing that service neutrally by a merely technical and automatic
processing of the data provided by its customers, plays an active role of
such a kind as to give it knowledge of, or control over, those data
 Since the operator has provided assistance which entails, in particular,
optimising the presentation of the offers in question or promoting those
offers, it must be considered not to have taken a neutral position, but to
have played an active role of such a kind as to give it knowledge of, or
control over, the data. It cannot then rely, in the case of those data, on
the exemption from liability referred to in Article 14(1) of Directive
2000/31.
M. Ficsor, Zagreb, 21 November 2014
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Scarlet (1)
SABAM v. Scarlet (case C-70/10)
Scarlet qualified as access provider rather than hosting provider.
The issue: filtering (as described in the referral)
 all electronic communications passing via its services, in particular those
involving the use of peer-to-peer software;
 which applies indiscriminately to all customers;
 as a preventive measure;
 exclusively at the service provider’s expense; and
 for an unlimited period.
M. Ficsor, Zagreb, 21 November 2014
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Scarlet (2)
SABAM v. Scarlet (contd.)
• „serious infringement of the freedom of the ISP concerned to conduct its
business since it would require that ISP to install a complicated, costly, permanent
computer system at its own expense”;
 The business involved was based, to a great extent, on (i) illegal making available
of works by a huge number of customers of the business, (ii) increasing by this
the number of visitors of the website, and, (iii) as a result of this sort of
popularity, obtaining income from advertisers. What about the business of those
whose creations and productions were used illegally, and without which the
business could not have had chance to succeed?
 The filtering system proposed was qualified too complicated and too costly
(without any real analysis or calculation why it should be regarded so). What
about possible filtering systems that would be simpler and less costly or that is
not “permanent”?
 Would not it have been justified to consider that the ISP might have to bear the
cost of a reasonable filtering system from its income indirectly derived from the
infringements taking place through its system?
M. Ficsor, Zagreb, 21 November 2014
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Scarlet (3)
SABAM v. Scarlet (contd.) The outlined filtering system
 „may also infringe the fundamental rights of that ISP’s customers, namely
their right to protection of their personal data and their freedom to receive
or impart information”;
 Insubstantiated, slogan-based sweeping statement which could hardly stand
any serious scrutiny .
 Why would a filtering system violate the protection of customers’ personal
data if it only consisted in the identification of illegal materials (not of the
customer) and in their removal? In particular, why would it be so if an
automatic system were involved and it functioned only in the relation
between the ISPs and their customers ?
 Did the court see it an approriate position according to which free
unauthorized making available of , e,g., freshly released films to the tiny
internet population is a matter of freedom of receiving and imparting
information.
M. Ficsor, Zagreb, 21 November 2014
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Scarlet (4)
SABAM v. Scarlet (contd.) The outlined filtering system
 ”could potentially undermine freedom of information since that system might not
distinguish adequately between unlawful content and lawful content;”
 It can be easily proved how huge exaggerations this unsubstantiated statement
contains and how much it is poorly founded. It is sufficient to refer to the successful
operation of the filtering system applied by YouTube in accordance with the crossindustry agreement published on www.ugcprinciples.com.
 It is still a major understatement if it is stated that, in the extremely overwhelming
majority of cases, the “matches” found by the filter are unequivocally infringing
copies.
 The same UGC principles take into account and take care of the overly exceptional
situations which form only a microscopic tiny fraction of the enormous number of
cases.
 Is does not seem a right solution to throw out the baby not just along with the bath
water but her alone merely because one of her fingers is still somewhat wet? Why
not to try finding a means to dry that small spot?
M. Ficsor, Zagreb, 21 November 2014
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Scarlet (5)
SABAM v. Scarlet (contd.) (If the application of filtering system were ordered)
 „the national court concerned would not be respecting the requirement
that a fair balance be struck between the right to intellectual property,
on the one hand, and the freedom to conduct business, the right to
protection of personal data and the freedom to receive or impart
information, on the other.”
 In the concrete situation with the concrete details, this may have been
true.
 However, it seems quite sure that the CJEU, in this case, no matter how
good intention it may have had, has fulfilled this requirement even less;
the preliminary ruling is largely unbalanced to the detriment of copyright
owners.
M. Ficsor, Zagreb, 21 November 2014
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Scarlet (6)
SABAM v. Scarlet (contd.) Further unanswered questions:
 What does it mean in Recital (45) of the E-Commerce Directive that injunctions may
consist in orders to require not only the termination but also prevention of
infringements? How filtering infringing copies to prevent their making available to the
public as a means of prevention rather than post festam termination of infringements
should be considered from this viewpoint? Are there at present any realistically
available effective means to prevent the inclusion of infringing materials in an online
system other than filtering? What would be the meaning and value of this recital if,
although orders to prevent online infringements are possible, their only effective
application would not be allowed?
 What does the prohibition of general obligation to monitor the information that ISPs
transmit or store mean and what kind of non-general obligations to monitor may be
ordered, in particular in the light of the clarification in Recital (47) which reads as
follows: “Member States are prevented from imposing a monitoring obligation on
service providers only with respect to obligations of a general nature; this does not
concern monitoring obligations in a specific case and, in particular, does not affect
orders by national authorities in accordance with national legislation.”? (Emphasis
added.)
M. Ficsor, Zagreb, 21 November 2014
34
Netlog
SABAM v. Netlog (case C-360/10) (Netlog: a social networking platform
qualifying as hosting provider)
 The court completely disregarded that, contrary to Scarlet, a hosting
provider was involved to which stricter rules apply under Article 14 of the
Electronic Commerce Directive.
 It repoduced practically in a copy-and-past verbatim manner the Scarlet
findings on the freedom of conducting business and the alleged conflicts
with the protection of personal data and the freedom of information.
 It did not pay attention to L’Oréal, although the application of the
principles and criteria laid down in that case would have been justified.
M. Ficsor, Zagreb, 21 November 2014
35
National courts have offered the complete and
correct response (1)
Obligation of non-general monitoring (filtering) and of preventing future
infringements: what is taken down must stay down
GEMA v. YouTube (Hamburg Regional Court (G Hamburg) 310 O 461/10).
YouTube has intermediary “disturber” liability (“Störerhaftung”) by providing
its platform and thus contributing to the infringing acts.
 When notified of an infringement, YouTube has the obligation not only to
remove or block access to the video without delay but also to take
measures to prevent further infringements. (This duty does not extend to
those videos that had already been uploaded to the platform.)
 No disproportionate duties may be imposed on YouTube. Nevertheless,
it is a reasonably proportionate obligation to prevent future illegal
uploads of the same musical works on the same recording by using
filtering software. YouTube should use the software itself and could not
leave this to its users.
M. Ficsor, Zagreb, 21 November 2014
36
National courts have offered the complete and
correct response (2)
Obligation of non-general monitoring (filtering) and of preventing future
infringements: what is taken down must stay down
In Atari v. RapidShare, the locker provider, first, seemed to be the winner. The
Regional Court (LG) of Düsseldorf found against it. However, the Higher Regional
Court in Düsseldorf (OLG) reversed the ruling in favor of RapidShare. The OLG did not
find it justified to obligate RapidShare, in addition to take down illegal copies when
duly notified, also to prevent, through a filtering system, repeated uploading of illegal
copies of the same works.
The German Federal Court of Justice (BGH) reversed the ruling of the Düsseldorf
OLG. (BGH, I ZR 18/11, LG Düsseldorf – 12 O 40/09). Although it stated that, in
principle, file hosting services are to be recognized as an appropriate business model,
they should duly cooperate with copyright owners not only by removing illegal
copies from their system but also by preventing their inclusion (that is, if illegal
copies of a work are taken down, they should stay down and not uploaded again). If
RapidShare does not apply a reasonable filtering system for this purpose, it will be
liable for the infringements.
M. Ficsor, Zagreb, 21 November 2014
37
V. AN EXAMPLE OF BADLY
INFORMED CJEU JUDGMENTS:
THE ERRONEOUS „NEW PUBLIC”
THEORY AND THE FURTHER
ERRORS MADE IN TRYING TO
CORRECT IT
M. Ficsor, Zagreb, 21 November 2014
38
The SGAE – TvCatchup – Svensson tryptich (1)
• In SGAE (case C-306/05), the CJEU invented the „new public” theory in
head-on crash with the Berne Convention and the WCT in which there is
no such criterion of the right of communication to the public and the right
of making available to the public and by this it also extended the theory of
exhaustion of rights in a way which is in conflict with the international
treaty.
• In TvCatchup (case C-607/11 ), the Court tried to correct it through the
invention of the „special technical means theory” which is also in crystalclear conflict with the plain language of the treaties.
• In Svensson (case C-466/12 ), the application of the „new public” theory
would have led to abolishment of the right of making available right for
any works which has been uploaded on the Internet; the CJEU tried to
avoid this and also to „save the Internet” through inventing the
„restricted access” theory in introducing by this a (prohibited) formality of
protection.
M. Ficsor, Zagreb, 21 November 2014
39
The SGAE – TvCatchup – Svensson tryptich (2)
• For details, see
 Ian Rosen presentation at this conference;
 the Opinion adopted by the ALAI Working Group and uploaded on
the www.alai.org; and
 M. Ficsor: „Svensson: honest attempt at establishing due balance
concerning the use of hyperlinks – spoiled by the erroneous ‚new
public’ theory”; paper to be found at www.copyrightseesaw.net.
• This presentation only deals with the source of the erroneous „new
public” theory as an alarming sign of how badly informed the CJEU
judges may be.
M. Ficsor, Zagreb, 21 November 2014
40
The source of the basic error (1)
End of May 1985: „retreat” at the Perle du Lac restaurant to determine
WIPO’s copyright agenda for the next decade. Participants: Arpad Bogsch,
Director General; Roger Harbin, Head of Cabinet; Claude Masouyé, Director
of Copyright Department; Mihály Ficsor, Director of Copyright Law Division.
M. Ficsor, Zagreb, 21 November 2014
41
The source of the error (2)
• The problem: WIPO did not have any reliable publication or other
documents that could have served as a guidance for the interpretation
and application of the Berne Convention .
• There was an old „Guide to the Berne Convention” published in 1978 but,
as its Foreword also stressed, it was only intended to be an introductory
publication for developing countries just in the process of establishing
their copyright system and, in accordance with this, it had been written is
a very simple style (by Claude Masouyé).
• For the „retreat”, Roger Harbin (abbreviation: RH!) had presented an
extremely critical analysis of the Guide full of penciled in remarks
pointing out how superficial it was and how many misleading statements
it contained. With reference to the „author” of the remarks and its
negative nature, it was later referred to as the „RH negative copy”.
M. Ficsor, Zagreb, 21 November 2014
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The source of the error (3)
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43
The source of the basic error (4)
Extremely critical comments in the „RH negative” copy
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The source of the basic error (5)
One of the great number of
„negative” criticisms by „R.H.”
concerned paragraph 11bis.12.
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The source of the basic error (6)
Paragraph 11bis.12 of the old Guide read as follows:
„11bis.12. … Just as in the case of a relay of a broadcast by wire, an
additional broadcast is created (paragraph (1) (ii)), so, in this case too,
the work is made perceptible to listeners (or perhaps viewers) other than
those contempleted by the author when his permission was given... [T]he
author thinks of his license to broadcast as covering only the direct
audience receiving the signal within the family circle. Once this reception
is done in order to entertain a wider circle,… an additional section of the
public is enabled to enjoy the work and it ceases to be merely a matter
of broadcasting. The author is given control over this new public
performance of his work.”
M. Ficsor, Zagreb, 21 November 2014
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The source of the basic error (7)
• „R.H.” stressed that this comment may be understood as to suggest that
for the applicability of the right of communication to the public a „new
public” would be needed which would be in crystal-clear conflict both
with the text and with the negotiation history of the Convention as
reflected in the records of the Diplomatic Conferences – and Arpad Bogsch
agrred with it
• Claude Masouyé reponded that, of course, he did not intend to suggest
such kind of stupidity. Only an example was offered for the developing
country readers in the case of which the retransmission or the public
communication truly resulted in the extension of the audience. Even if,
with certain efforts, it could be misunderstood, it did not follow from the
text that a „new public” would be a condition. He added that this turned
out clearly from the last sentence which did not speak about
performance to a new public but about a new act of public performance.
M. Ficsor, Zagreb, 21 November 2014
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The source of the basic error (8)
•
•
•
•
At the end of the weekend „retreat”, Dr. Bogsch decided as follows:
 a series of committees of governmental experts should be convened to
interpret the WIPO-administered conventions;
 around the end of the 1980s or beginning of the 1990s, there should be two
end results of these meetings and parallel studies: (i) a WIPO Model Law on
Copyright and (ii) a new Guide to be written in an „academic style” suitable
to offer guidance for due interpretation.
The documents adopted by the committees made it clear that, for the application
of the right of communication to the public, there is no need for a „new public”.
At the end of the 1980s, a draft Model Law on Copyright had been discussed and
was in an advanced stage but, due to the TRIPS negotiations and the beginning of
the preparation of what became later the WCT and the WPPT, it was set aside and
finally abandoned.
The new Guide written in an academic style was only published in 2003 – and it
does not include any comment which could be misunderstood as the old Guide.
M. Ficsor, Zagreb, 21 November 2014
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M. Ficsor, Zagreb, 21 November 2014
49
The unfortunate error – the Russian
roulette produced a victim
•
•
•
•
In SGAE, the CJEU did not perform any interpretation of Article 11bis(1) of the
Berne Convention on the basis of its text and negotiation history (the so-called
„preparatory work”).
It based its interpretation exclusively on the old Guide, stressing that a WIPO
publication is to be recognized as a reliable source of interpretation.
They misunderstood the comments exactly the same way as Roger Harbin
visualized it in his „R.H. negative” remarks.
Apparently, there was nobody to warn the judges
 that it was just a misunderstanding;
 that, if they wanted to trust themselves to WIPO documents, they should
have made use of the documents adopted by the competent bodies of the
Berne Union, and
 that, if they still wanted to use only the WIPO Guide to the Berne
Convention, they should not have used the out-of-date one but the new
Guide published 25 years later.
M. Ficsor, Zagreb, 21 November 2014
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VI. THE DEL CORSO JUDGEMENT:
„THE VETERINARY HORSE”
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The legend of the „veterinary horse”
• There is an expression known and frequently used in the country of the
author of this presention: the „veterinary hourse”.
• The legend originates from the end of the XIX century. In a parliamentary
debate a well-known member of the Parliament, in order to stress that o
draft resolution is full if errors, showed a drawing from a textbook for
veterinaries on which all the possible and imaginable horse illnesses
were presented.
• The CJEU’s Del Corso judgment (case C-135/10 Societá Consortíle
Fonografici, SCF v. Marco Del Corso) is a kind of „veterinary horse”
illustrating all the typical problems of the „preliminary ruling” system.
M. Ficsor, Zagreb, 21 November 2014
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The veterinary hourse in way to Del Corse to make his last dent to be pulled out.
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The Del Corso judgment
The operative paragraph of the Del Corso judgment reads as follows:
„The concept of ‘communication to the public’ for the purposes of Article
8(2) of Directive 92/100 must be interpreted as meaning that it does not
cover the broadcasting, free of charge, of phonograms within private dental
practices engaged in professional economic activity, such as the one at issue
in the main proceedings, for the benefit of patients of those practices and
enjoyed by them without any active choice on their part. Therefore such an
act of transmission does not entitle the phonogram producers to the
payment of remuneration.”
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Conflict with the principles of attribution, subsidiarity
and proportinality (1)
The Del Corso judgment is in clear conflict with an earlier important
judgement of the CJEU in the Tobaco Advertising case (case C/376/98
Germany v. Parliament and Council).
The TFEU does not attribute a competence the EU bodies to harmonize all
the laws in Europe. The decisive provision – Article 114 of the Treaty – links
legislative harmonization to the objective of establishment and functioning
of the internal market. In Tobaco Advertising, the Court declared that the
Treaty does not authorize the EU to harmonize when there may be only an
incidental effect on the internal market. The EU may intervene to resolve the
problems of the differences between national laws only where such
differences are prejudicial to the internal market in conflict with the free
movement of goods, persons, services and capitals.
Therefore, the Court anulled Directive 98/34 on tobaco adverstising .
M. Ficsor, Zagreb, 21 November 2014
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Conflict with the principles of attribution, subsidiarity
and proportinality (2)
• The principles of attribution, subsidiarity and proportionality correctly
applied in the Tobacco Advertising judgments also bind the CJEU.
• The adoption of a judgment on the question of wheter dentists in the
center of Turin, in a suburb of Prague, in a small village of Scotland or in a
resort at the Adriatic Sea have to or do not have to pay a small amount of
money for the use of broadcast music in their waiting rooms hardly has
anything to do with the free movement of goods, persons, services and
capitals in the internal market and thus, it is in conflict with the
principles of attribution, subsidiarity and proportionality.
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Martin Schulz against
a „Frankenstein Europe”
Regulating at EU level the question of whether or not dentists have to pay the value
of the price of a cup of coffee per month for the music used in their waiting rooms is a
phenomenon about which Martin Schulz, the President of the European Parliament,
said this:
"National sovereignty in Europe is based on a model of separation of powers… What
we are doing now is that we are taking bits and pieces of this framework and
transferring them to the EU level….The result is what I call 'Frankenstein Europe'."
"There are developments… that only alienate people. There are two schools of
thought - one that doesn't rest until it privatises even the last local cemetery, and the
other is not satisfied until we have an EU regulation for burials."
See
euroobserver.com/political/
119284
M. Ficsor, Zagreb, 21 November 2014
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A typical example of ignorant questions addressed to
the CJEU by a first-instance court (1)
• In the Del Corso case, an Italian first-instance court submitted, inter alia,
the following „prejudicial question”:
„Does the broadcasting [sic!], free of charge, of phonograms within private
dental practices engaged in professional economic activity, for the benefit of
patients of those practices and enjoyed by them without any active choice
on their part, constitute “communication to the public” or “making available
to the public” for the purposes of the application of Article 3(2)(b) of
Directive 2001/29?”
• It would be difficult to find a more obvious example to show by what
kinds of extremely low quality questions the CJEU is inundated due to
the unfortunate Article 267 of the TFEU.
• If a university student revealed such tragic ignorance about copyright as
what is shown in this question, he definetely would have to fail and to be
sent away to learn and come back later better prepared.
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A typical example of ignorant questions addressed to
the CJEU by a first-instance court (2)
• Normally, in an adequate judicial hierarchy, it is not necessary that the
highest court occupy with such questions derived from brutal ignorance
of a first-instance judge.
• It is Article 267 of the TFEU has created this disfunctional anachronism.
• In its judgment the CJEU clarified that using broadcast phonograms in
dentists’ waiting rooms has nothing to do with the right of online making
available to the public and that not Directive 2001/29 but Directive
92/100 applies to such acts.
• At the same time it is somewhat alarming that the Court has not
corrected the characterization of the dentists’ use of broadcast
phonograms as an act of broadcasting (dentists as broadcasting
organizations!).
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The surprising (and erroneous) response
by the CJEU
The CJEU has given the following weird answer to the weird question:
„ The concept of ‘communication to the public’ for the purposes of Article
8(2) of Directive 92/100 must be interpreted as meaning that it does not
cover the broadcasting, free of charge, of phonograms within private dental
practices engaged in professional economic activity, such as the one at issue
in the main proceedings, for the benefit of patients of those practices and
enjoyed by them without any active choice on their part. Therefore such an
act of transmission does not entitle the phonogram producers to the
payment of remuneration.”
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60
Lucrative objective of the communication as a
criterion of communication to the public? (1)
• This is the most fundamental and most dangerous error of the CJEU.
• There is no provision whatsoever in the international treaties and/or in
the EU directives on such a criterion of the concept of communication to
the public (and/or making available to the public).
• It is a completely different matter that the absence of lucrative purpose
may serve as a basis for certain exceptions or limitations or may have an
effect on the level of remuneration.
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Lucrative objective of the communication as a
criterion of communication to the public? (2)
Extract from Article 5 of Directive 2001/29:
„Member States may provide for exceptions or limitations to the rights provided for
in Articles 2 and 3 [on the rights of reproduction and communication to the public] in
the following cases:
(a) use for the sole purpose of illustration for teaching or scientific research, as long as
the source, including the author's name, is indicated, unless this turns out to be
impossible and to the extent justified by the non-commercial purpose to be achieved;
(b) uses, for the benefit of people with a disability, which are directly related to the
disability and of a non-commercial nature, to the extent required by the specific
disability;”
Why might it be the absence of commercial objective as a basis of the application of
an exception to or limitation of the right of communication to the public if, without
such an objective (according to the CJEU) we could speak about any right of
communication to the public?
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Music is not communicated to a public that is not
specially interested in listening to it?
The CJEU does not suggest other and less than this in Del Corso.
However, in the international treaties and the EU directives, there is nothing
that might suggest that the concept of communication to the public might
depend on the level of interest of the public to which the communication is
made – whether it is interested, not too interested or indifferent. An act of
communication to the public takes place if a work is communicated to the
public. Full stop. The subjective status of the members of the public is
irrelevant.
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Different concepts of communication to the public for
exclusive rights and rights to remuneration ?
The Del Corso judgment suggests that the concept of communication to the
public is not the same where it is covered by an exclusive right (of authors)
as where it is covered by a right to remuneration (of related rights
benefitiaries) – because, according to the Court, the rights to remuneration
are „economic rights”?
Come on, where is the difference? The exclusive rights are not „economic
rights”?
En realdad si una comunicación tiene lugar y la comunicación está al público
se trata de comunicación al público independintemente de la naturaleza y
el nivel del derecho.
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Yes…
… this poor horse has got all kinds of illnesses
and it needs a thorough and intensive cure.
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VII. CONCLUSIONS AND
SUGGESTIONS
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Conclusions – theses confirmed
1. No judicial activism!
2. Respect for Montesquieu!
3. Freedom for Sisyphus!
4. Healthy hierarchy!
5. No service for stupid questions!
6. Don’t trust an RH negative Guide!
7. Don’t try to reinvent the wheel!
8. No „veterinary horses” !
9. No Frankenstein!
10. No Russian roulette!
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Suggestions
• National courts should be discouraged to use the „preliminary ruling”
system wherever the legal situation is sufficiently clear to be able to
adopt a judgment at national lavel.
• If the TFEU were amended for some reason, the possibility of prejudicial
referral should be eliminated from Article 267 in cases where there is still
a higher judicial forum in the Member State to which still appeal is
possible.
• The CJEU should respect and apply more consistently the principles of
subsidiarity and proportinality.
• With the objective of making the system of prejudicial rulings sufficiently
participative and transparent and of guaranteer that duly informed
judges adopt judgments, it would be necessary to introduce the
possibility of submitting to the CJEU thorough legal analyses as „amici
curiae” papers to the U.S. Supreme Court.
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THANK YOU FOR YOUR
ATTENTION
[email protected]
www.copyrightseesaw.net
M. Ficsor, Zagreb, 21 November 2014
69

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