Ministry of Culture Training in Cooperation with IP Key
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26‐Aug‐15 Ministry of Culture Training In cooperation with IP Key Monday 31 August 2015, Zhengzhou, Henan COPYRIGHT ENFORCEMENT TRENDS IN THE EU & INTERNATIONALLY Overview • Part 1 – Threats to the creative industries in the digital era • Part 2 – How to tackle the threats: approach to enforcement ***Break*** • Part 3 – Countermeasures: different ways to tackle the problem • Part 4 – Sample cases: • Part 5 – Cyber Trust • Questions 1 26‐Aug‐15 PART 1 – THREATS TO THE CREATIVE INDUSTRIES IN THE DIGITAL ERA Overview • 1 – Music Industry • 2 – Games Industry • 3 – Publishing Industry THREATS TO THE MUSIC INDUSTRY • Music industry was the first of the creative industries to come under threat • As early as 1999, music piracy exploded with the Napster peer‐to‐peer (P2P) service • Key cases in the 2000s around the world established key principles as to when the parties involved would be liable • Example cases: – P2P cases: Napster, Grokster, Kazaa – Search/links cases: Yahoo! China, Baidu, Cooper/mp3s4free – P2P/BitTorrent cases: The Pirate Bay, IsoHunt – Cyberlocker cases: RapidShare, Hotfile, MegaUpload 2 26‐Aug‐15 THREATS TO THE MUSIC INDUSTRY • Today, music industry today still faces many threats • From a technology point of view, many threats remain the same as ten years ago • Key threats today include: – unlicensed websites/download sites these services simply offer illegal music content for download by the consumer the music is downloaded directly from the service operator – music search/deep‐linking services these services collect links to unlicensed music being hosted around the Internet on third party servers users search the services database of links for music they want the music is then downloaded directly from the third party host THREATS TO THE MUSIC INDUSTRY • Key threats continued: – peer‐to‐peer (P2P) services various different P2P technologies exist; most popular today is BitTorrent in a P2P system, files are not on central servers, but held by individual users the P2P service allows users or ‘peers’ that want a file to find other users that hold the file the file (or at least part of it) is then transferred directly from the peer holding the file to the peer requesting the file in a BitTorrent service, the coordination of the peers requesting the file (known as ‘leechers’) and peers holding the file (known as ‘seeders’) is done by a ‘tracker’ – pirate apps these services can be accessed by downloading apps from smartphone app stores various different versions exist typically, services allow users to download music from their own servers or third party sites technically similar to search/deeplinking services 3 26‐Aug‐15 THREATS TO THE MUSIC INDUSTRY • Key threats continued: cyberlockers – at their most simple, cyberlockers are simply file hosting and storage services – users upload e.g. music files to the cyberlocker, which is like an online warehouse – the cyberlocker stores the file and sends the user a link to the hosted file – the user can then very easily distribute the link to the file to other users, for instance by posting on BBS and blog services; no need to distribute the file itself – the cyberlockers themselves have limited interfaces and it is not possible to search within a cyberlocker for particular content – by using the link, other users download a copy of the file from the cyberlocker – cyberlockers are not necessarily liable for infringement – but where cyberlocker services induce or encourage users to store commercial, copyright‐protected content then they can be indirectly liable THREATS TO THE GAMES INDUSTRY • Games industry suffers from similar threats to other industries, in particular music and film. • Differences in the games industry mean threats impact the games industry differently from, e.g. music and film industries – game files can be huge >30GB; a lack of bandwidth means these files simply cannot be distributed as easily as smaller music or film files – historically the distribution model for many games has been quite different, with games being played on proprietary games consoles – games consoles include technical protection measures (TPMs) that prevent pirate copies of games being played on genuine consoles – commercial models may be different, e.g. subscription‐based games • Some threats are particular to the games industry, e.g. TPM circumvention 4 26‐Aug‐15 THREATS TO THE GAMES INDUSTRY • Key threats today include: – P2P services technically these services work in an identical manner as they do for other content, e.g. music and film – cyberlockers and unlicensed sites again similar to the music industry, cyberlockers are a major problem for the games industry links to pirate games that have been uploaded to the cyberlocker are distributed on the internet, e.g. on BBS and blogs users can download the pirate games by following the links some websites aggregate and offer many links to pirate games and may be acting with the cyberlocker, sharing revenues THREATS TO THE GAMES INDUSTRY • Key threats today continued: – TPM circumvention technical protection measures (TPMs) are technical measures that prevent users from copying copyright content, including playing pirate copies of games major games publishers and console manufacturers use TPMs to allow only genuine games to be played on their consoles major console manufacturers include: – Nintendo, who produce the WiiU and 3DS – Sony, who produce the PlayStation PS4 – Microsoft, who produce the X‐Box the most common form of TPM circumvention device allows pirate copies of games to be played on the consoles (these devices are sometimes known as ‘modchips’) the manufacture, distribution and sale of physical devices and software that circumvent TPMs is a huge industry once a user has purchased a console, a TPM circumvention device allows the user to play pirate games that it has downloaded for free 5 26‐Aug‐15 THREATS TO THE PUBLISHING INDUSTRY • The publishing industry faces similar threats to other creative industries, but the most serious threats are quite particular to publishing • Differences in the industry mean threats impact the industry differently from other industries, e.g. music – physical products, in particular books and magazines are still very popular – e‐books are becoming very popular, but e‐books typically come with technical protection measures (TPMs) and/or digital rights management systems (DRM) – those TPM and DRM systems tend to be attacked (‘cracked’ or ‘hacked’) less that in other industries, e.g. games • Some threats are particular to the publishing industry, e.g. the collaboration with licensees in cases of journal piracy THREATS TO THE PUBLISHING INDUSTRY • Key threats today include: journal piracy services – academic, scientific, technical and medical journal publishers publish thousands of different journals – these are typically licensed to institutions, such as universities and libraries, on a subscription basis; a licence gives access to a huge database of current journals and past issues – pirate journal service providers collaborate with one or more licensed institutions – this allows the service to offer a huge volume of current and past issues of journals – the involvement of the institutions is outside the terms of their licence from the publisher – articles requested from the service provider are either emailed directly to the user or uploaded to the user’s account, from where they can be downloaded directly – services are often commercial, charging users, but no money goes back to the publishers 6 26‐Aug‐15 THREATS TO THE PUBLISHING INDUSTRY • Key threats continued: document sharing platforms – users upload documents to the platform operator – uploaded documents are then made available to other users, who search for what they want – users can then download the documents they are looking for – document sharing platforms operate in various ways commercially – document sharing platforms are not necessarily liable for infringement – but where the platforms induce or encourage users to upload commercially available, copyright‐protected content then they can be indirectly liable – document sharing platforms are either stand‐alone or may be one of the services offered by, for instance, larger search providers • Key threats continued: e‐book piracy – e‐books normally contain DRM content and/or TPMs – hackers often try to ‘crack’ the DRM or TPM to allow the hackers easier access to the content and to allow them to distribute the content freely PART 2 – HOW TO TACKLE THE THREATS: THE APPROACH TO ENFORCEMENT • A structured approach can be taken to analysing infringing services • Online infringement generally involves two acts of copyright infringement: – infringement of the right of communication to the public – infringement of the right of reproduction • Need to understand in detail who is responsible for each act • Need to understand who benefits from the infringement occurring • Often the ‘mastermind’ is not the primary infringer 7 26‐Aug‐15 PART 2 – HOW TO TACKLE THE THREATS: THE APPROACH TO ENFORCEMENT Relevant legal provisions are same internationally, in Europe and in China: 1. the unlicensed making available to the public of their works – WIPO Copyright Treaty 1996, Article 8: Right of communication to the public – EU Copyright Directive 2001, Article 3: Right of communication to the public – Chinese Copyright Law 1990, Article 10.1(12): Right of communication through an information network 2. the unlicensed reproduction of the work – Berne Convention 1886 (1971 edition),