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U.S. Analysis and Global Overview, Copyright ® Copyright in 26 jurisdictions worldwide Contributing editors: Andrew H Bart, Steven R Englund, 2013 Susan J Kohlmann and Carletta F Higginson Published by Getting the Deal Through in association with: AKD Anand and Anand Armengaud & Guerlain Atsumi & Sakai Bloomfield Advocates & Solicitors Castillo & Castillo E Blum & Co AG García Magliona & Cía Limitada Abogados Herbert Smith Freehills Hoet Pelaez Castillo & Duque Hogan Lovells Jenner & Block LLP Johnston Law JWP Patent & Trademark Attorneys Law Office Drnovšek LLC MGAP Attorneys at Law Moeller IP Advisors Nestor Nestor Diculescu Kingston Petersen PMBGR Law Firm PMSP Rechtsanwälte GmbH RPC Salger Rechtsanwälte Suárez de la Dehesa Abogados Thompson Associates Tony Greenman Law Offices Yasaman Law Firm Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Copyright 2013, (published in July 2013; contributing editors: Andrew H. Bart, Steven R. Englund, Susan J. Kohlmann and Carletta F. Higginson of Jenner & Block LLP). For further information please visit www.GettingTheDealThrough.com. CONTENTS ® Copyright 2013 Overview Andrew H Bart, Steven R Englund, Susan J Kohlmann and Carletta F Higginson Contributing editor Jenner & Block LLP 3 Andrew H Bart, Steven R Englund, Susan J Kohlmann and Carletta F Argentina Estela De Luca and Natalia Pennisi Moeller IP Advisors 4 Higginson Jenner & Block LLP Australia Kristin Stammer and Helen Macpherson Herbert Smith Freehills 11 Publisher Gideon Roberton Austria Isabella Hoedl PMSP Rechtsanwälte GmbH 17 Business development managers Canada Keri AF Johnston, Alpesh Patel, Benjamin Lai and Karol Pawlina Johnston Law 22 Alan Lee, George Ingledew, Dan White Chile Claudio Magliona García Magliona & Cía Limitada Abogados 29 Account manager Megan Friedman China Deanna Wong, Junlin Xiang and Camilla Ojansivu Hogan Lovells 36 Trainee account manager Cady Atkinson, Joseph Rush, Dominican Republic Sylvio Hodos and Julissa Matias Castillo & Castillo 43 Dominique Destrée France Catherine Mateu Armengaud & Guerlain 48 Media coordinator Parween Bains Germany Stephan Dittl Salger Rechtsanwälte 54 Administrative coordinator Sophie Hickey India Pravin Anand and Rahul Ajatshatru Anand and Anand 60 Trainee research coordinator Israel Tony Greenman Tony Greenman Law Offices 66 Robin Synnot Marketing manager (subscriptions) Japan Chie Kasahara Atsumi & Sakai 71 Rachel Nurse [email protected] Malaysia Benjamin J Thompson and Hannah Ariffin Thompson Associates 76 Head of editorial production Adam Myers Netherlands Martin Hemmer and Eliëtte Vaal AKD 81 Production coordinator Nigeria Tolushuwa Oyebokun Bloomfield Advocates & Solicitors 86 Lydia Gerges Poland Dorota Rza¸z˙ewska JWP Patent & Trademark Attorneys 91 Senior production editor Jonathan Cowie Portugal Manuel Durães Rocha PMBGR Law Firm 97 Subeditors Romania Ana-Maria Baciu and Delia Belciu Nestor Nestor Diculescu Kingston Petersen 103 Davet Hyland, Charlotte Stretch Russia Yuriy Korchuganov and Olga Zakondyrina MGAP Attorneys at Law 109 Director Callum Campbell Slovenia Tjaša Drgan Law Office Drnovšek LLC 114 Managing director Spain Jose Antonio Suárez Lozano and Helena Suárez Jaqueti Suárez de la Dehesa Abogados 119 Richard Davey Switzerland Brendan Bolli, Sven Capol, Barbara Gehri and Felix Locher E Blum & Co AG 125 Copyright 2013 Published by Turkey Hamdi Yasaman and Fülürya Yusufog˘lu Yasaman Law Firm 131 Law Business Research Ltd 87 Lancaster Road United Kingdom David Cran, Jeremy Drew and Paul Joseph RPC 137 London, W11 1QQ, UK Tel: +44 20 7908 1188 Fax: +44 20 7229 6910 United States Andrew H Bart, Steven R Englund, Susan J Kohlmann and Carletta F Higginson © Law Business Research Ltd 2013 Jenner & Block LLP 145 No photocopying: copyright licences do not apply. Venezuela Matías Pérez Irazabal Hoet Pelaez Castillo & Duque 152 First published 2006 Eighth edition ISSN 1748-8257 The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of July 2013, be advised that this is a developing area. Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112 Law Business Research Jenner & Block LLP OVERVIEW Overview Andrew H Bart, Steven R Englund, Susan J Kohlmann and Carletta F Higginson Jenner & Block LLP As a result of the significant advances in technology during the past In the US, courts continue to define the type and amount of two decades – as evidenced by the widespread use of computers and knowledge of infringement occurring on a website that, if possessed the internet, the rise of digital media and the heavy use of comput- by a service provider, would disqualify it from a safe harbour pur- erised databases – intellectual property rights and laws have had to suant to the terms of the Digital Millennium Copyright Act (the evolve. Current global trends are focused on striking the appropriate DMCA). Under the DMCA, a service provider with actual knowl- balance between combating piracy by strengthening the protection edge of specific infringing content on its site has a clear obligation to of intellectual property rights in today’s digital environment and remove or disable access to the content. In Viacom’s $1 billion copy- encouraging the promotion of the continued growth and develop- right lawsuit against YouTube and Google Inc in the case Viacom ment of electronic commerce. Intl v YouTube, Viacom asserted that the defendants are liable for The unauthorised dissemination of copyrighted works through infringement of Viacom programmes on YouTube. In June 2010, a the internet continues to pose a significant challenge to copyright lower court granted summary judgment to Google and YouTube, owners worldwide and countries continue to refine their legislative holding that they were protected from copyright infringement liabil- framework for the protection of intellectual property. ity under the safe harbour provision of the DMCA. Last year, the US For example, in China, the Supreme People’s Court recently Court of Appeals for the Second Circuit revived Viacom’s lawsuit issued Judicial Rules on Several Issues Concerning the Application against YouTube and Google Inc, and highlights some of the issues of Law in Hearing Civil Dispute Cases Involving Infringement of raised by the use of copyright when it reversed the lower court’s deci- the Right to Dissemination Through Information Networks, which sion and directed on remand that the lower court consider, among sets forth the situations in which network service providers can be other things, whether YouTube had specific knowledge of infringe- held liable for the infringing activities of network users. The provi- ment, was wilfully blind to infringing activity, had sufficient con- sions consist of 16 articles aimed at providing clear guidelines for trol or syndicated clips to third parties, such that YouTube cannot Chinese courts in determining the vicarious liability of service pro- qualify for the DMCA safe harbour and must be held responsible for viders for copyright infringement in civil cases. the infringing material posted by users. On remand, the lower court Similarly, in Greece, within the past year, a Greek court issued once again found that Google and YouTube are protected by the the first Greek judgment ordering internet service providers (ISPs) to ‘safe harbor’ provisions of the Digital Millennium Copyright Act, take efficient technological measures in order to prevent users from thus setting the stage for another appeal back to the Second Circuit. accessing websites which allow and facilitate the illegal sharing and The Viacom case remains one of the most important internet intel- copying of digital copyrighted works. In Decision 4658/2012 of the lectual property disputes of the last decade and will continue to be Athens First Instance Court, the Court granted a preliminary injunc- watched closely as courts determine the parameters of the DMCA tion to collecting societies and copyright holders against internet and set guidelines for websites to use content uploaded by users. service providers ordering the latter to block Greece-based internet As the digital world continues to evolve, so do intellectual prop- users’ access to webpages hosting copyright infringing material. The erty laws around the globe. We hope that you find our analysis Court treated ISPs as intermediaries under EC Directive 2004/48 helpful and informative as you navigate through the ever-changing and held that blocking access to the webpage hosting copyright copyright landscape in your practice or business. We look forward infringing material is an appropriate interim measure in light of the to hearing from you and welcome any comments that you may have. principle of proportionality. www.gettingthedealthrough.com 3 Jenner & Block LLP UNITED STATES United States Andrew H Bart, Steven R Englund, Susan J Kohlmann and Carletta F Higginson Jenner & Block LLP Legislation and enforcement Various other provisions of the Copyright Act that were not added by the DMCA address additional specialised aspects of digital 1 What is the relevant legislation? exploitation. Among others, section 115 provides
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