Data Protection

Data Protection

Ted Shapiro SVP, General Counsel Europe Motion Picture Association-Europe WIPO SEMINAR 27 May 1 THE TIME WHEN THE LAW OF COPYRIGHT AND ITS INTERNATIONAL REGIME WAS A RELATIVELY SIMPLE AND WELL-DEFINED SUBJECT HAS PASSED. THE PRODUCTION OF COPYRIGHTED WORKS AND THEIR USES HAVE BEEN ENORMOUSLY ENLARGED IN THE LAST QUARTER CENTURY. THE CONFLICTS OF INTERESTS BETWEEN PRODUCERS OF LITERARY, MUSICAL AND ARTISTIC WORKS, AND THEIR CONSUMERS AND INTERMEDIARIES AFFECT LARGE GROUPS AND INVOLVE GREAT SOCIAL INTERESTS.

STEPHEN P. LADAS: PREFACE, THE INTERNATIONAL PROTECTION OF LITERARY AND ARTISTIC PROPERTY (MACMILLAN COMPANY, 1938) Malheureusement, trop souvent, le droit d'auteur est prsent comme un obstacle la cration d'un march numrique unique. Je crois que ce n'est pas juste. Le droit d'auteur permet au crateur de vendre ce qu'il a cr, lui garantit un retour sur investissementC'est aussi vrai dans le domaine de l'industrie, de la cration, de l'innovation industrielle; un retour sur investissement grce auquel le crateur pourra ensuite continuer crer d'autres uvres et de nouveaux contenus. Ce modle conomique qui soustend le droit d'auteur existe depuis plusieurs centaines d'annes, . Chaque fois, les nouvelles technologies ont permis de passer de nouveaux modles conomiques qui ont entran un changement dans l'exploitation et la commercialisation du droit d'auteur. 11 May at the European Parliament, Michel Barnier, Commissioner for the Internal Market European Commission

We should not see the observance and enforcement of IP rights as merely protecting the interests of the developed world, but rather as a powerful tool to galvanize our domestic industry while retaining national culture, national inventiveness, and national creativity. Betty Mould-Iddrisu, Chief State Attorney, International Law Division, Ministry of Justice, Ghana Moladee (Senegal, 2004) COPYRIGHT IS MORE THAN A MERE RIGHT TO GET PAID

EU Digital Agenda points framework Directive on collective rights management Orphan Works Directive Green paper opportunities and challenges of online distribution of AV works and other creative content. Review 2004 Enforcement Directive

Looking at EU Copyright Law from on high Unprecedented number of cases currently pending before ECJ which concern copyright/content protection References for preliminary rulings from national courts Potential for ECJ to have a profound impact on EU Copyright Directive Conditional Access Directive Cable & Satellite Directive Software Directive Enforcement Directive E-Commerce Directive ePrivacy Directive Data Protection Directive TFEU - Free Movement

of Goods/Services TFEU - Competition Law European Convention on Human Rights and Freedoms ECJ decisions are bindingFundamental on all Member States Cases C-403/08 and 429/08: Premier League

Condacc, Copyright, CabSat Directives Free movement principles Competition law Territorial exclusive rights under acquis Freedom to license. Financing /Production/Distribution/ Impact of differing Natl Regulations Concept of an illicit device (services include works) Issues Scope of reproduction right/exception for temp copies Communication to the pub (Spanish Hotels case) CABSAT DIR NOT RELEVANT Competition law - Coditel cases are good law Market has not changed to extent its time to overrule it Specific subject matter and essential function of Ex Article 81 does not apply/ECJ set economic points

Thuiskopie (C-462/09), SGAE (C-467/08) & EGEDA (C-387/09) Copyright Directive 2001/29/EC Article 5.2b: Private Copy Exception Article 5.5: 3 Step Test Main issues Fair Compensation EU concept uniform interpretation Who is liable to pay? Scope? Relation to national equitable remuneration schemes Leeway for Member States? Can they discriminate? How to balance interests? Role of collecting societies Distance selling of equipment or blank media Taking into account use, harm, direct payments Professionals purchase equipment for non-private uses SGAE AG opinion: a levy on private copies only where it may be presumed devices are used for private copying Case C-393/08: BSA v. Czech Ministry of Culture

Software, Copyright and Cabsat Directives Does protection extend to graphic interface: look and feel? Com to Pub/Making available/retransmission of video games? Cases C-431 & 432/08: Airfield/Canaal Digitaal v. Sabam/Agicoa Cable & Satellite Directive 93/83 Guidance on "communication to the public by satellite Satellite platforms --channel bundling/uplink/downlink Separate act of communication to the public? Case Berne C-136/09 Greek Hotel Case Article 11bis Convention Directive 2001/29 - Beyond Spanish Hotels (C-306/05) TV sets in hotel rooms connected to central antenna

ECJ C-236/08 23 Mar 2010 TMs/Keyword ads/displays and links ECJ punted issue of whether the Art 14 liability privilege applies back to natl courts Whether Google is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores. Remuneration by itself not enough Fact that there is concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself, but the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or Sabam v. Scarlet

Article 8.3 before the ECJ Copyright, E-Commerce, Enforcement, Data Protection, and ePrivacy Directive as well as the ECHRFF Brussels Ct of Appeal: Promusicae - insufficient guidance (Sabam a worse case?) Impact on other Art 8.3 cases and draft legislation? Trick questions (against RHs)? Back to Member States? 1. Can natl judges issue injunctions ordering ISPs to filter? relationship to Art 15 E-Com Dir no general monitoring 2. If yes, do they have to apply principle of proportionality Promusicae? -- Principle is well-established National courts have to strike a fair balance between fundamental rights (privacy v. copyright). Yes!? Or an invitation to the ECJ to erect more hurdles? subsidiarity (action 1st agst direct infringers), ISP liability, costs for ISPs, effectiveness of technology, others....

Meanwhile at WIPO CDIP Dev. Agenda SCCR VIP E&L AVP Bcasters TK/Folklore Sector in the Developing World

Shortage of local investors and chronic undercapitalisation of the production and distribution sectors. Inadequate support services, including technical training and facilities, crews for film and music production, etc. Weak marketing and distribution infrastructure. Endemic illegal copying and illegal distribution of content. Deficiencies in existing systems for the collection of royalties for producers, publishers, authors and artists. Deficiencies in local IPR enforcement, which are often due to economic reasons or allocation of limited resources. Chronic lack of funding creates a vicious circle: Poorly funded and marketed works earn low returns. The distribution

infrastructure remains inefficient and in many cases insecure, which multiplies opportunities for a black market to develop. All of these factors in turn make lenders and investors more reluctant to provide the funds to support publishing, production and distribution of new creative content. Liz Wilson Candice Orwell Sofia Coppola Keira Knightley Bronagh Gallagher John Fensom Greg Proops Scott Capurro Margaret Towner Dhruv Chanchani Oliver Walpole Katie Lucas Megan Udall

Hassani Shapi Gin Clarke Khan Bonfils Michelle Taylor Michaela Cottrell Dipika O'Neill Joti Phil Eason Mark Coulier Lindsay Duncan Peter Serafinowicz James Taylor Chris Sanders Toby Longworth Marc Silk Amanda Lucas .... .... ....

.... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... ....

.... .... Eirta (as Friday 'Liz' Wilson) Yan .... Sach Sab Radiant VII captain TC-14 Beed (voice) .... Fode (voice) Jira Kitster Seek Amee (as Jenna Green) Melee ....

Eeth Koth Adi Gallia (as Gin) Saesee Tiin Yarael Poof Even Piell Depa Billaba Yaddle Aks Moe TC-14 (voice) Darth Maul (voice) Rune Haako (voice) .... Daultay Dofine (voice) Sen. Lott Dodd/Gragra (voice) Aks Moe (voice) Tey How/Diva Funquita (voice) (as Tyger) Produced by George Lucas .... executive producer

Rick McCallum .... producer Original Music by John Williams

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