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

2. 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

3. 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

4. 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 OiNK shut down
*CBS Songs Limited v Amstrad Consumer Electronics Plc [1988] AC 1013

5. ISPA Annual Conference
Defences
Section 28A 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 97A 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

6. ISPA Annual Conference
SABAM v Scarlet – June 2007
Scarlet ordered to “end violations of copyright, by rendering impossible all transmission or reception by P2P 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?

7. 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

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

9. © EVERSHEDS LLP 2007. Eversheds LLP is a limited liability partnership.