Copyright law around the world continues to evolve to address advances in technology and adoption of new communications media. Judicial decisions, national legislation in various countries, and international treaties all reflect efforts to strike the appropriate balance between encouraging creativity by providing meaningful protection of intellectual property rights and encouraging continued growth and development of new technologies.
Courts continue to confront copyright issues raised by new technologies. For example, a court in China recently decided, for the first time, that short online videos are protected by copyright. In the United States, courts continue to decide a steady stream of cases involving unauthorised online use of copyrighted works. Following a decision by the Court of Justice of the European Union, it appears that certain subject matter, such as video games, that do not fit neatly into the traditional categories of copyrighted works in the UK’s copyright legislation may be eligible for protection.
In April 2019, the EU adopted the Directive on Copyright and Related Rights in the Digital Single Market. This directive addresses a wide variety of topics, including exceptions and limitations to copyright restrictions for new technological techniques, such as data mining, and digital educational uses, use of out-of-commerce works by cultural heritage institutions, extended collective licensing, and, controversially, the online use of press publications and use of works by online content-sharing services. The focus now shifts to national legislatures, which have two years to transpose the directive into their national law. For example, in Austria, there have already been calls to provide start-up service providers relief from the directive’s provisions concerning use of works by online content-sharing services. It is not clear whether the UK will need or want to implement the directive if it leaves the EU.
Collective licensing has been a topic of legislation elsewhere as well. In the US, the Music Modernization Act will permit digital music service providers to obtain blanket licences for the use of musical works in their services through a centralised collective. Legislation pending in Spain and Switzerland also addresses collective licensing organisations. Meanwhile, Greece established a new musical work collective, and the Supreme Court of Brazil upheld the right of Brazil’s national government to legislate concerning collective licensing of musical works. Music legislation proposed in Indonesia is taking a different tack. It would regulate the creation and distribution of music, including requiring competence tests for musicians.
Other aspects of the proposed Swiss legislation would improve anti-piracy enforcement with measures such as a ‘stay down’ requirement for certain internet hosting providers, extend the term of ‘neighbouring rights’ protection for performances and provide broader protection for photographs. Like the EU, Japan has adopted legislation to facilitate use of copyrighted works in machine learning.
Various countries are implementing specialised tribunals to hear intellectual property disputes. China has had specialised intellectual property courts for a number of years, and more recently has introduced internet courts that will hear internet-related copyright disputes. Ukraine is in the process of implementing a specialised intellectual property court. In the US, interest is building for legislation to create a statutory alternative dispute resolution programme for small copyright claims.
The 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled focuses on copyright exceptions relating to the creation and dissemination of materials accessible to the blind and other print-disabled persons. It entered into force in 2016, and at the time of writing, 55 countries have ratified or acceded to that treaty. The US implemented the treaty in 2018 and ratified it in 2019. EU member states are moving forward on national legislation to transpose a directive implementing the treaty. For example, the treaty has been implemented in Austria, and implementing legislation is pending in Greece and Spain. In Switzerland, the treaty has been implemented and a ratification proposal is pending.
As the digital world continues to evolve, so do copyright laws around the world. We hope that you find our analysis helpful and informative as you navigate the ever-changing copyright landscape in your practice or business. We look forward to hearing from you and welcome any comments that you may have.