Péter Mezei - Dóra Hajdú

Péter Mezei - Dóra Hajdú INTRODUCTION TO DIGITAL COPYRIGHT LAW Textbook Second Edition © Szeged, 2015 University of Szeged Faculty of Law ISBN 978-963-306-406-1 Supported by TÁMOP-4.2.1.D-15/1/KONV-2015-0002 1 ABOUT THE AUTHORS Péter Mezei is an associate professor of law at the Institute of Comparative Law, Faculty of Law, University of Szeged. He has been selected as an adjunct professor (dosentti) of the University of Turku, Finland. He currently functions as the Associate Dean for Strategic Affairs of the Faculty of Law, University of Szeged. He is a member of the Hungarian Copyright Expert Board. He is the author of over 65 publications. He has held lectures on comparative digital copyright law at universities in Finland, France, the United States of America and Germany over 30 times since 2007. He prepared the national report for the 18th International Congress of Comparative Law (2010) on the limitations and exceptions in Hungarian copyright law and he co- authored the national report for the 19th International Congress of Comparative Law (2014) on license contracts, free software and Creative Commons. He participated in several research projects run by the Hungarian Copyright Forum Association, the Hungarian Intellectual Property Office; De Wolf & Partners Law Firm (Belgium); KEA European Affairs and the Research Center in Information, Law and Society, University of Namur (Belgium), Public Policy and Management Institute (Lithuania). Mr. Mezei may be contacted at [email protected]. Dóra Hajdú is a PhD candidate at the Insitute of Comparative Law, Faculty of Law, University of Szeged (Szeged, Hungary) and at the Centre d’Études et de Recherche en Droit de l’Immatériel, Université Paris-Sud (Paris, France). She conducts her research in the field of collective rights management of copyright. She graduated from the Faculty of Law, University of Szeged and also holds a Master in European Union Law from Université Lyon III (Lyon, France). Ms. Hajdú may be contacted at [email protected]. 2 TABLE OF CONTENTS ABOUT THE AUTHORS 2 TABLE OF CONTENTS 3 INTRODUCTION Péter Mezei - Dóra Hajdú: How to use the book? 4 CHAPTER I Péter Mezei: The Role of Technology and Consumers’ Needs in the Evolution of 7 Copyright Law CHAPTER II The Cartoon Network, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2nd Cir. 2008) 13 Case C-466/12 - Nils Svensson and Others v. Retriever Sverige AB, Judgment of 20 the Court (Fourth Chamber), 13 February 2014 Flava Works, Inc., v. Marques Rondale Gunter, 689 F.3d 754 (7th Cir. 2012) 27 CHAPTER III Péter Mezei: The future of library digitization in the European Union and 34 Hungary (excerpt) The Authors Guild, Inc., et al. v. Google Inc., 954 F.Supp.2d 282 (U.S. Southern 45 Dictrict of New York 2013) Dóra Hajdú: French Legislation on the Digitization of Out-of-Commerce Works 52 Memorandum of Understanding - Key Principles on the Digitisation and Making 56 Available of Out-of-Commerce Works, 20 September 2011 CHAPTER IV Case C-128/11 - UsedSoft GmbH v. Oracle International Corp., Judgment of the 59 Court (Grand Chamber), 3 July 2012 Capitol Records, LLC, v. ReDigi Inc, 934 F.Supp.2d 640 (U.S. Southern Dictrict 71 of New York 2013) Péter Mezei: Digital First Sale Doctrine Ante Portas - Exhaustion in the Online 82 Environment (excerpt) CHAPTER V Péter Mezei: Dont’t Call Me Pirate! 94 Columbia Pictures Industries, Inc., et al. v. Gary Fung, et al., 710 F.3d 1020 (9th 99 Cir. 2013) The Pirate Bay verdict, Stockholm District Court, B13301-06, 17 April 2009 115 BMG Music, et al., v. Cecilia Gonzalez, 430 F.3d 888 (7th Cir. 2005) 128 Case C-275/06 - Productores de Música de España (Promusicae) v. Telefónica de 132 España SAU, Judgment of the Court (Grand Chamber), 29 January 2008 Case C-70/10 - Scarlet Extended SA v. Société belge des auteurs, compositeurs et 144 éditeurs SCRL (SABAM), Judgment of the Court (Third Chamber), 24 November 2011 The Football Association Premier League Ltd. v. British Sky Broadcasting Ltd., et 152 al. [2013] EWHC 2058 (Ch), 16 July 2013 TEST YOUR KNOWLEDGE 162 BIBLIOGRAPHY 163 3 INTRODUCTION How to use the book? Péter Mezei - Dóra Hajdú When the first copyright statute was signed by Stuart Anne, Queen of England, in 1709, nobody expected that this fresh territory of law will develop into such an economically and socially important, enormous issue in the 20th-21st century. The Statute of Anne tried to reach consensus between the interests of printers, booksellers and the authors. Three hundred years later stakeholders also include painters, sculpturers, sound recording producers, radio and television companies, database producers, performers (for example singers, dancers etc.) and so on. The task of legislators and judges in striking the balance of interests seems to be therefore extremely hard in our age. Similarly, the protected subject matter expanded from literary works (writings) to musical compositions, sculptures, paintings and other fine art works, motion pictures and other audiovisual works, database, software, performances and many more. Authors were originally granted protection against illegal reproduction and distribution of their works. Nowadays the list of their exclusive rights is much longer than ever before (including moral rights as well). Notwithstanding the above these rights are controlled through many ways, including notable limitations and exceptions, like free uses, collective rights management, territorial and term restrictions, just to mention a few of these. The broadening of copyright regulation has always been due to different factors since the appearance of Gutenberg’s printing press in the middle of the 15th century. Amongst these factors the technological innovation and the constant changes of the copyright holders’ and members of the society’s needs have been the most notable ones. However, the first two centuries of copyright law might be characterized as the age of slow development. Contrary to this the importance of copyright regulation has extremely expanded in the last half century. The invention of photocopying machines and audio and video tape recorders that are capable for multiple reproduction of protected subject matter (mainly literary works, sound recordings and audiovisual contents) has speed up disputes between the different stakeholders. It has therefore become urgent to settle the emerging economic, social and legal disputes. The authors of this book take steps to introduce students some of the most recent and relevant examples of these disputes. Digitization has become such a dominant activity that it similarly can contribute to the preservation of our culture. Therefore issues of digitization by libraries and private corporations. The emergence of the problematic of and the solution for the orphan works dilemma also worth to mention and discuss. P2P file-sharing is a relatively new area of digital copyright law, but belongs to the most important question everywhere. The United States and the EU Member States follow, however, different paths in resolving this problem. The United States concept of contributory and vicarious liability doesn’t exist on the European Continent, where – on the other hand – the public law and technological control seems to be much more effective than private law (copyright law). Related to the question of P2P file-sharing, the question of private copying exception rises up. In the past few years the Court of Justice of the European Union has been elaborating a new approach of the theory of private copying levies. Finally, the digital natives (as Viviane Reding has called the young generation that use internet as a main way of communication) contribute to the improvement of our culture as well. These usages have constantly contributed, however, to the emergence of several remarkable concerns, too. It is therefore necessary to discuss the interplay of copyright law and the web 2.0 phenomenon. The list of these „hot topics” is definitely selective. The main purpose of the selection was to comply with the needs of a course offered for Chinese and Hungarian students at the Faculty of Law. Through the topics covered by the book students will get familiarized with elements of the copyright law of the European Union and the United States of America, and will gather the knowledge how to handle similar copyright problems during their future career. 4 Readings include chapters discussing the problems through comparative method, analysing statutory sources and case law from multiple jurisdictions. These theoretical, analytical readings are supplemented by court decisions. The latter are edited where necessary, leaving only the most important elements of the – sometimes really long – judgments for discussion and debate. Decisions might be analysed through two different approaches. The lecturers of the course prefer to use both the U.S. „IRAC” method and a revised version of the traditional French method of “fiche d’arrêt”. The term „IRAC” is the abbreviation of the process through which the case is dissected into four parts. „I” is for issue, „R” is for the rules, „A” is for the arguments and finally „C” is for conclusion. The issue includes all the relevant facts of the case. The correct understanding of these facts is the cornerstone of a further proper analysis of any decision. This requires the accurate knowledge of both basic legal definitions and – in case of digital copyright disputes – the skill to correctly categorize technological features of the quarrels. Rules include both statutes (and other regulations) and precedents. As students will experience, referring to former court decisions has become general both in the Anglo-Saxon countries (like the United States and the United Kingdom) and more recently in the case law of the Court of Justice of the European Union. Arguments cover both the statements and evidences of parties and the reasoning used by judges in reaching the final conclusion.

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