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Intellectual Property Law and Respecting It

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European Single Market refers to the EU as one territory without any internal borders or other regulatory obstacles to the free movement of goods and services. There are extremely significant benefits that the single market brings. Such as; stimulates competition and trade, raises quality, improves efficiency, and helps cut prices. However, Article 17 (ex Article 13) of the Directive on Copyright obliges online platforms to obtain authorisation from rights holders to upload works and, where appropriate, to grant them fair remuneration. Recent development of case law emphasises the need to strike a fair balance between intellectual property rights and other fundamental rights. In theory, balancing of various fundamental rights is not a new concept. On the other hand, in practice, striking a fair balance between intellectual property rights and other fundamental rights is quite a new and problematic issue due to digitalisation, which has created new ways for the copyright holders to produce and distribute their works, but also made it easier for the users to share culture. [footnoteRef:1]The purpose of this essay is to critically evaluate adoption filtering technology strikes the right balance between the enforcement of IP rights and the competing human rights at stake. [1: A ‘’fair balance’’ between intellectual property rights and other fundamental rights?. Leva Kisieliute. Faculty of Law Lund University.]

First of all, EU Copyright Directive one of the most controversial pieces of legislation in the EU’s history. The Directive most substantial and controversial articles are Article 15 and Article 17. Under Article 15 (link tax) news aggregators must pay press publishers licencing fees for reproducing snippets of text from news articles. Moreover, under Article 17 (upload filters) services must pay rightholders based on content licences and takedown, block and filter copyrighted content. However, EU Member States have two years to implement Directive into their domestic law.

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Article 15 means allowing press publishers to require news aggregators like Google News to pay licencing fees for reproducing snippets of text from news articles. There is a specific exception for ‘individual words or very short extracts’ and also for hyperlinks. However, it is not clear what length will be considered ‘very short’ and thereby excluded from the requirement, or how the requirement will work in practice. Notably, Germany and Spain previously attempted to introduce similar legislation at a national level, but both attempts were ultimately unsuccessful. Article 15 applies to online journalistic works, such as literary works, photographs and videos on online news websites. Article 15 does not apply to publications published for scientific or academic purposes. For instance, scientific journals.

However, in US, there is currently no ‘Link Tax’, but Goldman v Breitbart [footnoteRef:2]posited a need for a link license under US law. 

On the other hand, some giant companies are unwilling to observe Article 15. For example, Google refuses to pay publishers to list their content in Search’s news aggregation. Such as, Google News. Google lists an article’s full headline, hyperlink, image, publisher and a short extract of the piece. It seriously limits the amount it displays. This could reduce the ‘clickability’ of an article and ultimately damage the amount of traffic a digital publisher receives.

Secondly, Article 17 consist of the licensing requirement, the ‘best efforts’ requirement, limited relief for new services and freedom of expression protective provisions. On the other hand, Article 17 would harm innovation and competition by creating barriers to entry. ‘Upload filters’ involve both technological and human resources. However, only big players will be able to afford ‘upload filters’. Lack of competition in the market for ‘upload filters ‘ are Audible Magic and YouTube Content ID.

The legal mechanisms that should be used to achieve a fair balance between copyright and other fundamental rights are contained in a variety of legislative acts. Most importantly, the fundamental rights that have to be balanced are in the Charter of Fundamental Rights.

There are some ways to balance EU law and fundamental rights. Such as, traditional balancing, Internal fundamental-rights balancing and external fundamental-rights balancing.

Firstly traditional balancing, the proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.[footnoteRef:3] A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded.[footnoteRef:4] Exceptions and limitations (Article 5), for instance, citation, educational use, incidental reproduction, parody,and panorama. Each exception has specific requirements, designed to ensure balance between rightholder and user, policed by three step test. Closed system of exceptions and limitations; no general fair use exception. [3: European Union Directive (2001/29), Recital 3.] [4: European Union Directive (2001/29), Recital 31.]

Secondly, Internal constitutional balancing, European Union Charter of fundamental rights can be defined as Intellectual property[footnoteRef:5], freedom of expression and information[footnoteRef:6], privacy and protection of personal data[footnoteRef:7], freedom to conduct a business[footnoteRef:8] and non-discrimination[footnoteRef:9]. [5: European Union Directive (2001/29) Article 17 (2)] [6: European Union Directive (2001/29) Article 11] [7: European Union Directive (2001/29) Article 7] [8: European Union Directive (2001/29) Article 16] [9: European Union Directive (2001/29) Article 21]

Applies to EU institutions, and to member states when applying harmonised EU law, which includes most copyright law.

According to EU Charter of fundamental rights Article 52 (1), any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.[footnoteRef:10] [10: European Union Charter of Fundamental Rights, Article 52 (1).]

Moreover, in Promusicae, ‘’Member States must, when transposing […] directives […] take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.’’[footnoteRef:11] Furthermore, in Sabam, there is nothing whatsoever in the wording of [article 17(2) of the EU Charter] or in the Court’s case-law to suggest that [the right to intellectual property] is inviolable and must for that reason be absolutely protected. […] The protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights.’’[footnoteRef:12] [11: CJEU 29 January 2008, Case C-275/06 (Promusicae)] [12: CJEU 24 November 2011, Case C-70/10, Scarlet/Sabam]

Therefore, copyright is a fundamental right, but merely one of many, with no claim to superior status.

Fair balance between copyright and other fundamental rights can be achieved at different levels. Such as, when defining the scope of the exclusive right, when interpreting exceptions and limitations, when assessing the suitability of specific enforcement measures and when defining copyrightable subject-matter.

In addition, for the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29[footnoteRef:13], it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that work had been published on the internet without the consent of the copyright holder. [13: European Union Directive (2001/29) Article 3 (1).]

However, CJEU 27 order not necessarily incompatible with fair balance, as long as measure does not affect internet users who are using the provider’s services in order to lawfully access informatio, provider can obtain review of sufficiency of proposed measure prior to forfeiting any penalties, and website blocking order has the effect of seriously discouraging internet users from accessing infringing content, even if it cannot totally prevent infringement.

In conclusion, there is a huge ongoing war against privacy, and it has been provoked by the Internet. However, it’s too expensive and if they need to adopt filtering technology it will not prevent them from conducting business according to article 16.[footnoteRef:14] For example YouTube ID may cost around 30 million. YouTube gives access to huge amount of copyright protected content. So, it can afford to pay for these costs. But, however, only huge companies can afford it because of their size. Small companies cannot afford it. On the other hand, technology filtering system also complies with Article 6 (rights to fair trial) because rightholders and OCSSPs can have their concerns heard in court. [14: European Union Directive (2001/29) Article 16]

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