xvth annual conference on copyright and related rights organized by the croatian copyright society...

XVth ANNUAL CONFERENCE ON COPYRIGHT AND RELATED RIGHTS

organized by the CROATIAN COPYRIGHT SOCIETY – ALAI CROATIAin 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

M. Ficsor, Zagreb, 21 November 2014 2

I. INTRODUCTION


JÓZSEF Attila: Érted haragszom, nem JÓZSEF Attila: Érted haragszom, nem ellened ellened Érted haragszom én, nem ellenedÉrted haragszom én, nem ellened; nosza szoritsd meg a kezem, mellyel magosra tartalak álmaimban, erősitsen az én haragom, erősitsen az én haragom, dehogy is bántson, kedvesdehogy is bántson, kedves.

Attila JÓZSEF: Angry for and not against Attila JÓZSEF: Angry for and not against you you (translation: Katalin N. Ullrich)(translation: Katalin N. Ullrich)I am angry for and not against youI am angry for and not against you; come on, grasp my hands holding you high in my dreams, my anger should make you stronger, my anger should make you stronger, by no means hurt you, dearby no means hurt you, dear.

Poetic disclaimerPoetic disclaimer

Attila JÓZSEF, Hungarian poetAttila JÓZSEF, Hungarian poet(1905 – 1937) (1905 – 1937)

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!



II. EXAGGERATED CRITICISMS (?) AND REAL PROBLEMS

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.


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.


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.)



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 athttp://www.cep.eu/fileadmin/user_upload/Preseemappe/CEP_in_dem_Medien/Herzog-EuGH-Website_eng.pdf.)

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)

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.


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.)



• 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.



• 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.



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-being-granted/).



• 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.



• 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.



• 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.



III. USEDSOFT OR THE „TERMINATOR JUDGMENT” – AN EXAMPLE OF THE CJEU’S EXCURSION IN THE LAND OF

LEGISLATORS

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).



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.



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.”



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.



• 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.



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.



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.



IV. AN EXAMPLE OF BAD QUESTIONS AND, THUS,

MISLEADING (IDEOLOGY-BASED) ANSWERS: THE SABAM

JUDGMENTS

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.


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.


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?


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.


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 cross-industry 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?


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.


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.)


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.


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 downGEMA 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.


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 downIn 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.



V. AN EXAMPLE OF BADLY INFORMED CJEU JUDGMENTS:

THE ERRONEOUS „NEW PUBLIC” THEORY AND THE FURTHER

ERRORS MADE IN TRYING TO CORRECT IT

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 crystal-clear 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.


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.



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.

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”.


The source of the error (3)




Extremely critical comments in the „RH negative” copy



One of the great number of „negative” criticisms by „R.H.” concerned paragraph 11bis.12.


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 (para graph (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.”



• „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.


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.


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.



VI. THE DEL CORSO JUDGEMENT: „THE VETERINARY HORSE”

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.



The veterinary hourse in way to Del Corse to make his last dent to be pulled out.

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.”


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 .


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.



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

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.


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!).


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.”


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.


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?


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.


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.


Yes…

… this poor horse has got all kinds of illnesses and it needs a thorough and intensive cure.



VII. CONCLUSIONS AND SUGGESTIONS

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!


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.


THANK YOU FOR YOUR THANK YOU FOR YOUR ATTENTION ATTENTION

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xvth annual conference on copyright and related rights organized by the croatian copyright society...

Documents

introduction slide

university of zagreb

mihly ficsor

rted haragszom n

republic of croatia

jzsef attila

exaggerated criticisms

hungarian copyright