Hugh Stephen’s Blog: International Copyright Highlights of 2019

Every year at this time I take a peek in the rear view mirror and look back at the main copyright highlights of the past year, at least the ones that I have written about in my blog. I also check back on the “year-end reflections” post written the previous year, and it is remarkable how many issues come up year after year. Like Brexit, or NAFTA, or Blackbeard’s Law as examples.

Brexit was supposed to have been done by now, but as we know it has been pushed to the end of January, 2020 when Boris Johnston, with his new Parliamentary majority, will finally ensure that it happens, for better or for worse. Copyright issues are not a big part of Brexit but withdrawal from the EU, when that happens, will affect UK-based content distribution businesses and British creators. NAFTA, aka USMCA/CUSMA, continues to edge toward ratification in the US but is not there yet. Opposition from Democrats in Congress resulted in some late changes to the Agreement including tighter Mexican labour provisions, measures to curtail higher drug prices and several others. While House Speaker Nancy Pelosi raised concerns about Section 230-type language (broad liability immunities for internet platforms) being embedded in the Agreement, unfortunately in the end its removal was not one of the changes agreed to by the three NAFTA countries. (More on this in my next blog). However, the updated NAFTA entrenches several commitments in the area of copyright, and enacting legislation will probably be passed in the US Senate (having passed the US House on December 19) and in Canada in early in 2020. (Mexico has already ratified the Agreement). Mind you, a year ago I thought Brexit would be decided in 2019.

While preoccupied with Brexit, the EU has been active on the copyright front, finally passing legislation in 2019 to update the Copyright Directive despite extensive lobbying campaigns against it mounted by Google, Facebook, Amazon and others, and an extensive astroturfing effort directed at Members of the European Parliament. The result, the modernization of EU copyright laws, encompassed a number of issues but the two most controversial were enshrined as Articles 15 and 17. In my year-end review last year I noted that Articles 11 and 13 (as they were then called) were continuing to work their way through the EU system. The European Parliament finally passed the updates to the Copyright Directive (after further refinements) in March of this year, with the Council giving approval in April. Member states have up to two years to enact national legislation to bring the new EU measures into conformity with national law.

France has been the first country to act on Article 15 (Germany already had a similar measure on its books). This provision requires news aggregators and search engines that display copyrighted content to pay the creators of the content if they use more than just headlines or very short excerpts (aka “snippets”). In effect the platforms have to obtain a licence from news publishers if they display significant portions of news stories in search listings. The intent is to flow some of the revenues from digital platforms back to the creators of the content on which the platforms depend to attract consumers. Google, however, has refused to play ball and has announced that instead of licensing content from news providers, it will drop all excerpts and display only headlines, (in effect calling the bluff of French legislators), unless the news source gives Google permission to display excerpts without payment. Google employed similar tactics when Germany passed a similar law a couple of years ago, threatening to drop all listings from the German press. Since search listings are a critical element in assisting users to find content, the German publishers relented. Google’s response has infuriated the French Parliament although it is not clear what steps are available to them to bring the internet giant to heel.

The other controversial Copyright Directive measure, Article 17, requires online platforms to obtain authorisation from right holders for uploaded works and to obtain licences for the content. It is designed to close the so-called “value gap” whereby large internet platforms reap most of the economic benefit while the creators of music and video content get the crumbs that fall from the table. There are exceptions for small platforms and a take-down requirement where content is not licensed. This measure has not yet been enacted into national legislation in any of the EU countries. YouTube was active in mobilizing opposition to this measure, and is not happy with the results.

This past year, 2019, also saw considerable action regarding pirate site-blocking, one of the more effective measures to impede streaming of pirated content from offshore sites that are deliberately set up in cyberspace to evade the reach of national law. Site blocking has been an effective remedy in the UK and Australia and at the end of 2018 Australia amended its site-blocking legislation to facilitate the issuance of dynamic orders to target offshore sites that play hide-and-seek by changing their locations, and to capture sites (such as cyberlockers) whose “primary effect” is copyright infringement. This past year the new law was put into action and flexible dynamic injunctions that can be adjusted to block shifting targets and mirror sites have been granted by Australian courts. India has also initiated dynamic injunctions to fight piracy. Infringing website lists (blacklists) maintained by reputable advertisers (sites on which they won’t advertise) is another tool to combat online streaming piracy, as is voluntary site blocking instituted by organizations such as school boards that maintain in-house private networks for their users.

Closer to home, there were significant developments on site blocking in Canada. After the broadcasting and communications regulator, the CRTC, last year turned down the request from a coalition of content owners and distributors (FairPlay Canada), to establish an administrative agency to review and recommend blocking orders against offshore pirate streaming sites—not because there was no evidence of harm from copyright piracy but on the grounds that the Commission did not have jurisdiction over copyright infringements—in November three major content providers sought and obtained an injunction from the Federal Court to block GoldTV, one such offshore pirate site engaged in streaming infringing content to consumers. This is the first such order in Canada. It has been appealed by one small ISP although all the major ISPs did not object to the Court’s ruling. In the meantime, GoldTV’s offshore sites remain blocked.

Site blocking was also addressed during the review of Canada’s Copyright Act. This has been underway for a year or so and culminated in the release of two Parliamentary reports this year, one by the Heritage Committee and the second by the Standing Committee on Industry, Science and Technology (INDU Committee). The Heritage report, Shifting Paradigms, was considerably more sympathetic to the concerns of the copyright industries than the INDU report, but the bitter pill for creators is that INDU is the Committee with statutory responsibility for the Act, as it made clear with a shrill and tone-deaf “we’re in charge” press release  that it issued after being criticized for not taking into account any of the recommendations of the more creator-friendly Heritage review.

On site blocking, INDU had this to say; “The Committee…agrees that there is value in clarifying within the Act that rights-holders can seek injunctions to deny services to persons demonstrably and egregiously engaged in online piracy, provided there are appropriate procedural checks in place.” This may or may not be necessary depending on how the appeal of the GoldTV case turns out, but in any event, if amendments are going to be introduced into the Copyright Act, this is not likely to be a quick process given the current minority government that was returned in the general election of October 21.

A number of other recommendations, such as those covering the legal interpretation of fair dealing, will also probably have to wait since updating of copyright law is unlikely to be a priority for a minority government more concerned with national unity and hanging on to power. (On fair dealing exceptions to copyright, the Heritage and INDU Committees came to almost opposite conclusions, with the Heritage report recommending that the fair dealing exception for education be narrowed to address the concern of publishers that it has been widely abused by the university community to avoid paying licensing fees for content, while INDU advocated widening fair dealing by making its categories illustrative rather than definitive). My guess is that none of this will be resolved in 2020.

One copyright issue on which I have written in the past and which has attracted much attention in the US is likely to be resolved this coming year, the famous “Blackbeard’s Law” case which is now before the US Supreme Court. The Court agreed to hear the case (Allen v Cooper) in 2019 and a decision should come out in 2020. At issue is whether US states can invoke the sovereign immunity provisions of the US Constitution to justify copyright infringement in violation of a specific law passed by Congress in the 1990s that prevents them from doing so.

Other developments in the US relating to copyright and internet platform responsibility involve significant rethinking of the immunities provided to internet intermediaries with regard to copyright infringing and other illegal content distributed on their platforms. These liability shields were established back in the late 1990s, at the dawn of the internet era and have been a negotiating position put forward by the US in its most recent trade negotiations. Now a re-evaluation of that position is underway in Congress and USTR is being urged not to push for measures in international agreements that may be rolled back in the US.

There are many other significant developments that took place in the world of copyright in 2019 that I did not get around to writing about, notably the Small Claims Enforcement (CASE) Act in the US. This notable piece of legislation which overwhelmingly passed in the House of Representatives in October, and is pending in the Senate, would set up a voluntary streamlined alternative process for rights-holders to settle small copyright disputes. Depending on what happens in the Senate, it could come into force in 2020.

What about the year ahead? In Australia, the Government’s formal response to the Digital Platforms Inquiry conducted by the Australian Competition and Consumer Commission (ACCC) came just before year end, on December 12. The response was disappointing for the content industry. The ACCC had recommended a mandatory code requiring platforms to work pro-actively with rights-holders to identify and remove infringing material, but all the government committed to was further review of copyright enforcement mechanisms next year. That review of possible further infringement prevention mechanisms will be on the agenda for 2020. In New Zealand the Government is plugging away on its copyright review and released a revised issues paper in November. I will be taking a closer look at what is happening there early in the New Year. In Canada, as noted above, although two Parliamentary committees have produced reports recommending various changes to the Copyright Act, this may not be a priority for the current minority government. Meanwhile it is anyone’s guess as to how Google and France will settle their differences over Article 15 of the Copyright Directive. And with the changes made that the Democrats wanted as the price of their support, NAFTA/USMCA should be ratified in both Canada and the US, despite the fact that Canada’s minority government will require the backing of at least one opposition party to pass the enacting legislation.

The only sure way to follow these and other developments is to stay tuned, and if you miss it, check in with me at roughly the same time next year.

© Hugh Stephens, 2019. All Rights Reserved.

This post first appeared on Hugh Stephens blog: International Copyright Highlights of 2019