filograph
29 October 2018Copyright

AIPLA 2018: Choppy waters for intermediaries, say lawyers

The past couple of years have seen, and the coming months will see, an enormous expansion in the uncertainty and risk for the whole digital technology sphere in the EU, an industry conference heard.

Remy Chavannes, lawyer at Brinkhof in the Netherlands, spoke during the panel session “Cross-border issues impacting intellectual property portfolios” at the 2018 AIPLA Annual Meeting in Washington, DC.

He added that companies in this sphere such as intermediaries and publishers are seeing more European laws apply to them and the content of those rules being “both stricter and less predictable”.

There’s an “increasing tendency at EU level where intermediaries are being asked to do more to take responsibility”, said Chavannes.

Chavannes walked attendees through recent copyright rulings handed down by the Court of Justice of the European Union (CJEU) and their implications, including GS Media v Sanoma Media, Filmspeler and Stichting Brein v Ziggo and XS4ALL Internet (the Pirate Bay case).

“The CJEU isn’t allowed to refuse cases and has to answer any question put to it. They have far too many cases and given that some of their answers are frankly mysterious, the consequences of that is the lower courts ask more questions,” he added.

To make things more complicated, the “legislature is moving the goalposts” with the Directive on Copyright in the Digital Single Market, claimed Chavannes.

In September, the European Parliament controversially voted in favour of modernising EU copyright law, a move which is set to have a major impact on platform filters, user-generated content, and publishers’ rights. Chavannes expects negotiations on the directive to be concluded by January 2019.

This is just one example of a “safe harbour being gradually broken down”, added Chavannes.

He believes that liability will continue to expand, with primary liability being applied to many intermediaries that have previously been able to hide behind safe harbours.

“Whether you like it or not, if you’re operating internationally, you or your clients will have to deal with this uncertainty and expansion,” he concluded.

Gregory Whitehair, practitioner at Colorado-based The Whitehair Law Firm, provided a US perspective on intermediaries, outlining the history of the Digital Millennium Copyright Act (DMCA) and related cases.

Whitehair explained that the historic model for conduit carriers centres on phone companies and their telephone poles.

But the internet changed everything, added Whitehair; it’s a distributive technology, while people can infringe thousands of copyright works in a second.

Whitehair ran through the Mavrix Photographs v LiveJournal and BMG Rights Management v Cox Communications cases, both of which he said were indications of where “people sailed outside the safe harbours” under the DMCA.

“When we start asking Facebook to patrol for Russian hackers, Microsoft to find and manage terrorist involvement, and Twitter to make sure they take down all their false accounts, are we asking our telephone company to suddenly have a police force?” he questioned.

Whitehair concluded that it would be “choppy waters for some time”, a sentiment that Chavannes agreed with.

Joe Agusta, senior patent counsel at Qualcomm in North Caroline, moderated the panel and all panellists spoke in a personal capacity. Bea Koempel-Thomas, partner at Lee & Hayes in Washington, provided her perspective on global patent applications.

The 2018 AIPLA Annual Meeting finished on Friday, October 26.

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