WHAT'S HOT IN COPYRIGHT FROM THE EU TO THE US VEF

WHAT’S HOT IN COPYRIGHT FROM THE EU TO THE US ?

PACA 19th Annual ConferenceNew York, Oct. 21, 2014

Current status of the lawsuits in the European Union vs. Google (I)

• Google friend or foe?

• A friend for business?

• An enemy for Copyright and Data protection?


Who is Google?

• Search engine: Google’s original service is to offer access to programs that search documents online with keywords and return a list of links towards documents

• Lucrative services: Google makes its profits thanks to online content through services such as Google Adwords, Google Suggest, Google Analytics, Google Images, Google Video…


Google images

• In 2005, Google had indexed over 1 billion images.

• In 2010, over 10 billion images.

• And every day Google indexes some more…


Law on online activities in the EU

In the EU, online activities are regulated by 3 major Directives :• EU Directive Data Protection 95/46/EC of 24 October 1995

Ex: ECJ 13 mai 2014 « Right to be forgotten » Google is liable to remove certain links towards webpages containing personal data and cannot invoke that it’s status of host to avoid this liability

• EU Directive on E-Commerce 2000/31/EC of 8 June 2000• EU Directive on Privacy and Electronic Communications

2002/58/EC of 12 July 2002


EU law implementation requirement

• EU Directives have to be implemented in National law

• The time limit for implementing an EU Directive is usually of two years


Implementation of EU law: the example of France

• In France, the EU Directive on E-Commerce and the EU Directive on Privacy have been implemented by the Law for Trust in the Digital Economy (LCEN Act of 22 June 2004).

• Under this law, the liability regime for online communication activities depends on whether the Defendant is a host, an editor or an internet service provider


What are the implications of the regime of editor or host?

Under Article 6 of the LCEN :• An editor

• has an active role in the choice of the content • is held directly liable for any unlawful content displayed online

• A host • has a passive role in the choice of the content • is only liable if it has been notified that unlawful content is displayed by

its services and fails to remove the content within a reasonable time


Does Google have an active role?• The essential questions to determine which legal regime will apply to

Google and on which grounds it may be held liable are: • What is the scope of Google’s activities ? • What role Google plays in these services?

• Google claims that its algorithm is automatic and the Company only has a passive role regarding the content displayed online.

• However, Google can modify its algorithm to chose to remove certain contents. Ex: The Google images search algorithm was last changed in 2012 to prevent pornographic images from appearing when non-pornographic search terms are used.


Is Google an editor or a host?• Courts have to determine the status of host or editor if the

defendant claims the host limited liability of the LCEN ActEx: Cour de Cassation, Commercial Chamber, 29 January 2013, « Cobrason v. Google » A competitor of the company purchased its Trademark as an AdWord.The Court of Appeal condemned Google and the competitor to 100.000 € of damages.However, the Cour de cassation cancelled the decision because the Court of Appeal did not answer Google’s claim to the limited liability regime under the LCEN Act

• French courts hesitated : is Google a host or an editor?


Before 2009: Editor

• French courts considered that Google was an editor therefore directly liable for the content communicated online if the content infringed a copyright or a trademark

Ex: Paris Court of Appeal, 28 June 2006 “Vuitton v. Google”Who? Vuitton sued Google for allowing the purchase of AdWords associating its Trademarks with key words such as replica, imitation or copies.Decision? Google is held liable of Trademark and Domain Name infringement. Damages? 300.000€ for Trademark infringement and unfair competition and 60.000€ for legal fees


Since 2009: Host

• French courts consider that Google is a host with limited liability and is therefore only liable if the claimant proves that Google had knowledge of the display of unlawful content and failed to remove or delete it reasonably quickly.

Ex: Paris Court of Appeal, 4 February 2011 « Google France v. Auféminin.com et al. » Why? Google Inc. and Google France did not remove sufficiently quickly the unauthorized reproduction of a photograph in Google images despite the photographers’ request. Sanction? Google is found liable of Copyright infringement. Damages? 20.000€ for Copyright infringement and 10.000€ for legal fees


Legal grounds for actions against Google• In order to win a claim against a Google, Claimants must :

1) demonstrate the elements constituting the infringement or privacy breach,

2) and prove that Google was notified of the infringement and failed to react within a reasonable timeEx: 5 days to remove videos was considered unreasonably long by Paris 1st Instance Court on 29 May 2012 “TF1 v. YouTube”

• The “Host” limited liability regime applied to Google partly explains why most Claimants mainly focus on suing their competitors


What are the grounds for the claims against Google?

• Privacy/Data protection (A)• Copyright infringement (B)• Trademark infringement• Unfair competition


Privacy actions (A)

Privacy is a legal basis now often used against Google:• the right to privacy is considered very important in the

European culture• EU law on Privacy offer a strong protection to individuals• Evidence of a privacy violation is easier to provide than

Copyright infringement


Regulation Authority and data protection

• The French Regulation Authority (CNIL) : verifies that Companies respect the French Data Protection Act is entitled to fine Companies for violating these obligations but the amount of damages is less important than in the US

• The CNIL sanctioned Google for violating Data Protection provisions In January 2014, Google was ordered to pay a fine of 150.000€ and to publish the

CNIL decision during 48 hours on its home page. The French Administrative Supreme Court confirmed this decision on February 7,

2014.


Google Suggest sanctioned on the ground of Data Protection Law

• Paris Commercial Court, 28 January 2014 « M. X. c/ Google Inc., Google France »

Who? A gallery owner asked Google to delete the negative suggestions appearing next to his name in the Google search bar

Why? Google Suggest and associated search are a considered services that process personal data. Google was held to violate the French law on data protection.

Sanction? The Court orders Google to delete the suggestions and pay 10.000 € for legal fees (article 700)


Court actions on the basis of the right to Privacy

• French Legal basis for actions for privacy violations: Article 9 of the French Civil Code (Right to privacy)

• Paris 1st Instance Civil Court, 6 November 2013, « Mosley » Google is ordered to stop displaying in Google Images 9 pictures

showing “private” scenes and taken against the person’s will. Damages: 1€ symbolic and 5.000€ for legal fees (Article 700 of the

French civil procedure code)


Copyright actions (B)

• EU law on Copyright is not yet completely unified– There is an EU Directive 2001/29/EC on copyright and related rights in

the information society– It essentially requires Member States to provide for:

Reproduction right Communication right Distribution right


Copyright actions : the example of French law

• Under French law, a Copyright infringement claim must prove:

« A reproduction, representation or diffusion, by any means, of a work in violation of the author’s rights » (Art. L. 335-3 Intellectual Property Code).

• A Copyright infringement claim can be based both on the author’s patrimonial or moral rights


Google’s « host » limited liability applies to Copyright actions

• Cour de Cassation, 1st civil chamber, 12 July 2012 « Google France v. Bac films »

The fact to make available in Google Video a film without authorization is infringing

The Court orders Google Inc. and Google France is not liable because Google is a host and has a limited liability


Hyperlinks towards infringing content

• Paris 1st instance Civil Court 28 Novembre 2013 « Allostreaming » (Emergency procedure)

Who? Cinema and video producers’ associations sued search engines including Google and Internet Service Providers for allowing access to websites unlawfully making available films and videos online

Sanction? The Court orders Google Inc and Google France to take all steps to prevent the display of results in the search engine linking towards websites displaying content infringing Copyright.

Damages? No damages were awarded.

Copyright reforms (II)

Reforms in the EU and the US

• Major comprehensive Copyright reforms are on their way both in the EU and in the United States:– "A Single Market for Intellectual Property Rights“ initiated by the

European Commission in 2011 in the EU– “The Next Great Copyright Act” initiated by Maria Pallante’s speech in

2013 in the US• They both focus strongly on the issues concerning Copyright

and the Internet


A Single Market for Intellectual Property Rights (A)

• Within this Framework, the European Commission has adopted:– Directive 2012/28/EU on orphan works on 25 October

2012;– Directive 2014/26/EU on collective rights management

and multi-territorial licensing of rights in musical works for online uses on 4 February 2014.


Latest steps towards the copyright framework in the EU– the “Licences for Europe” stakeholder consultation

process finalized on 13 November 2013; – the public consultation on the review of EU copyright

rules from 5 December 2013 to 5 March 2014– the white paper on the EU copyright reform titled “A

copyright policy for Creativity and Innovation in the European Union” to be released in 2014


In France (B)

Implementation of the Orphan works Directive• A comprehensive orphan works system had been proposed in 2010• For now, only the Orphan works Directive provisions will be implemented :

– They only concern national cultural institutions such as libraries open to the public, educational establishments and museums.

– It concerns written works, cinematographic, audiovisual works and phonograms and only fixed images incorporated to those works.

Copyright reforms (II) A future collective rights system for pictures on the Internet• French statute proposal in 2014 the 8th April on collective

rights management on graphic, plastic and photographic works by referencing and search engines – Proposal to create a mandatory collective rights management system

similar to the existing systems for reprography and music• Collecting societies would contract with search engines and

authorize the reproduction and representation of images and pictures by these services and collect related remuneration.

Conclusion

• Will the digitalization of Copyright lead to a worldwide reform of copyright law?

Thank you for your attention!

WHAT'S HOT IN COPYRIGHT FROM THE EU TO THE US VEF

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