ISPA Annual Conference Copyright Paddy Gardiner Partner in

ISPA Annual Conference Copyright Paddy Gardiner, Partner in the Media Group Eversheds LLP 30 October 2007

ISPA Annual Conference Copyright • The rights in question • Legislative Overview – Infringing acts – Defences • The Scarlet decision • Looking ahead – Gowers Review/review of the E-commerce Directive – Self regulation: ISPs’ role – Gatekeepers/Copyright Police? – Government intervention – The view from the USA

ISPA Annual Conference The relevant rights • Copyright: – music (sound recordings and publishing) – film (studios, directors and producers) – broadcasts • Related rights: – moral rights – performers’ rights – third parties

ISPA Annual Conference Infringing Acts • The Reproduction (copying) Right (s. 17 CDPA 1988) • The Communication to the Public Right (s. 20 CDPA) • “Authorising” copyright infringement (s. 16(2) CDPA – the CBS Songs v Amstrad guidelines*) • Applicability to ISPs, UGC providers and auction websites: the Oi. NK shut down *CBS Songs Limited v Amstrad Consumer Electronics Plc [1988] AC 1013

ISPA Annual Conference Defences • • Section 28 A CDPA – “temporary copies” E-commerce Directive – Art. 12 “mere conduit” – Art. 13 “caching” – Art. 14 “hosting” – Art. 15 “no obligation to monitor” Substantial part/incidental inclusion/fair dealing/ (ss. 16(3), 30 and 31 CDPA) Copyright Directive/Section 97 A CDPA – actual knowledge required – “Injunction against a service provider … [with] actual knowledge of another person using their service to infringe copyright” – Notification under the E-commerce Regulations 2002 a prerequisite – BPI threats/4 year anniversary

ISPA Annual Conference SABAM v Scarlet – June 2007 • Scarlet ordered to “end violations of copyright, by rendering impossible all transmission or reception by P 2 P software of electronic files containing musical works of artists from the SABAM catalogue” • No “active” blocking or filtering of customer activity required? • Threat of daily fine of € 2, 500 • Wider applicability?

ISPA Annual Conference Looking Ahead • Gowers Review – Recommendation 39 – “Observe the industry agreement of protocols for sharing data between ISPs and rights holders to remove and disbar users engaged in ‘piracy’. If this has not proved operationally successful by the end of 2007, Government should consider whether to legislate. ” • “Value recognition right” • Self-regulation: ISPs’ role – Gatekeepers/Copyright Police? Stockholm Network Report • The UK Government’s position

ISPA Annual Conference Looking Ahead cont … • European Commission review of the E-commerce Directive - due mid-2008 • The view from the USA: You. Tube Video ID, UGC Principles, MPAA, Comcast’s approach

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