1 Introduction
A Web 2.0
B Copyright Infringement on the Internet
C Copyright Infringement Issues of Web 2.0
2 Legislative Framework
A International Agreements
B E.U. Legislation
3 Liability for Copyright Infringement
A Liability of ISPs
(a) Direct Liability
(b) Indirect Liability
B Liability of Social Network Users
C Safe Harbor and Fair Use, the U.S. and E.U. Doctrines
4 Online Copyright Enforcement & Digital Rights Management
A Content Filtering
B Graduated Response - French, Italian, and the U.K. Systems
(a) France
(b) Ireland
(c) Italy
(d) The United Kingdom
(e) Other Countries
(f) The European Union
5 Discussion on the Current Online Trends
A The New Path - From P2P Sharing to Cyberlockers
B Effects of Online Music Sharing on the Market
6 Alternative Methods of Online Rights Management
A Take the ‘Middlemen’ out of the Equation
B Alternative Compensation Methods for Artists & Internet Subscription Levies
(a) Alternative Compensation Methods as a New Business Model
(b) Revising the Legislative Framework
7 Conclusion
8 References
With the development of Web 2.0, the streaming of media has become increasingly widespread to the extent that it is now virtually impossible to stop or control what is being uploaded into the cyberspace. As a known fact, most of the streaming media are the copyrighted works such as songs, movies, photographs, and audio recordings etc. that are uploaded without right owners’ authorization. We have witnessed some of the hot debates and cases related to copyright infringement through P2P networks as well as social media websites in the recent past; such as the case against Napster, and perhaps the most famous of all, YouTube. Given that every second thousands of copyrighted materials are being uploaded to the web servers, it is obvious that these servers cannot monitor or filter all of the uploaded content effectively[1].
This paper aims to propose alternative copyright management systems to limit user[2] liability of online copyright infringement, with a focus on the music industry. In the following section, the legislative framework at both international and EU level is discussed. In section three, liability of internet service providers and social network users are examined. In section four, technological methods and legislative actions related to online copyright enforcement are discussed. In section five, the transition from peer-to-peer networks to web sharing platforms, as well as the effects of online music sharing on the music industry are discussed. Finally in section six, alternative methods of online rights management are proposed.
Web 2.0 is the new form the Internet has taken that allows users to actively participate in the information exchange process. The term Web 2.0 refers to ‘increasing existence of information sharing, group-collaboration, and user-generated content on the Internet[3] ’. The exchange of information includes data, text, images, audio, and video presentations through blogs, networking sites, forums, RSS feeds, etc. The concept of Web 2.0 was first introduced by Darcy DiNucci in her article ‘Fragmented Future.’ DiNucci states that,
the Web we know now, which loads into a browser window in essentially static screenfulls, is only an embryo of the Web to come. The first glimmerings of Web 2.0 are beginning to appear, and we are just starting to see how that embryo might develop. The Web will be understood not as screenfulls of text and graphics but as a transport mechanism, the ether through which interactivity happens[4].
Similarly, the inventor of the World Wide Web, Tim Berners-Lee, argued that the idea was to create a ‘read/write Web[5] ’ where the users collaborate, create, and share content instead of merely using what is already uploaded by the website creators. Therefore, user-created content is the gravity point of Web the 2.0. As Web applications offer more flexibility and convenience, users can create audio, video or other content more easily and share their content on the Web. These applications have recently become so sophisticated that a user can create text files, spreadsheets, or even presentations simply by using a web browser.
The convenience of Web 2.0 has increased in the recent years with the emergence of social networking sites such as MySpace, Facebook, Flickr etc. in that users now do not even need to upload any media; they just need to click the ‘share’ button displayed along with the media content. This way of sharing copyrighted media (for instance movies, songs, photographs as well as articles, e-books etc.) still renders sharers liable for copyright infringement as discussed in the following sections . Users who distribute copyrighted media by using share features of Web 2.0 websites are equally responsible of depriving the copyright owners of their benefits that they could have materialized.
Since the early 1990s, the advancement of web technologies has been exponential. In the early days of the Internet[6], sending an e-mail across different internet service providers[7] (ISPs) was not possible. During these years, online copyright infringement was almost of no concern. Copyright infringement was mainly in the form of unauthorized duplication of books, cassettes, VHS recordings, CDs, and other media. However, beginning in the second half of 1990s, as Bomsel and Ranaivoson argue, ‘the dematerialization of copyrighted goods has deeply affected the creative industries. As a result of the increased ability to store, circulate, or exchange digital content, the scope of copyright infringement has changed[8].’ With the increased number of computer software that allows duplicating, modifying, or sharing media, nowadays it literally takes seconds to infringe copyrights by exchanging copyrighted material on the Internet. To make things even more complicated, the Internet has evolved into what is called Web 2.0 which makes the Web experience much more interactive and collaborative. On the one hand, this development liberalized the way subscribers use the Internet; yet on the other hand, it yields even more ways for copyright infringement.
The advancement of Web technologies has been so fast that public authorities are under big pressure to keep up with the latest technologies and adjust the law accordingly in order to protect copyright owners’ rights. Institutions inevitably fell weak in enforcing copyrights which resulted in increased number of infringing activities.
The term ‘intellectual property’ encompasses trademarks, patents, copyrights, industrial design rights, and trade secrets. Because the focus of this paper is on online copyright infringement, the discussion in this and following sections will be limited to online copyright infringement issues. As mentioned above, the collaborative nature of Web 2.0 makes the line between legitimate use and copyright infringement very thin. The key intellectual property issues associated with Web 2.0 are as follows[9]:
- Difficulties in enforcing a monitoring mechanism to identify who is liable for what and when;
- Difficulty of policing any illegality that may occur;
- Lack of clarity of what may be permitted under exceptions to copyright particularly in the field of data and text mining;
- The perception/approach of the Web 2.0 users that copyright infringement is of no relevance or importance;
- The difficulty to gain permissions from the authors of the copyrighted materials;
- Moral rights issues will arise if individuals’ contributions to a Web 2.0 application are quoted out of context, are misquoted, or are not correctly attributed to the originator;
- Performers’ rights issues arise if any performance (theatrical, musical, oral, dance or even simply a lecture) is reproduced in whole or in part in a Web 2.0 application.
In 2006, there has been an addition to this list of legal concerns related to copyright piracy. The Intellectual Property Rights Enforcement Directive 2005/0127 (COD)[10] drew strong opposition from user groups. What particularly disturbed these groups was Article 3 of the proposed Directive. The article reads ‘Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences[11].’ The ‘commercial scale’ criterion originates from Article 61 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The legal base of this proposal was ECJ C-176/03, Commission v. Council[12]. The Court stated in its decision that as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence, but;
[that] does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective[13].’
Action groups criticized this proposal for being disproportional and ineffective in that ‘instead of targeting commercial infringement enterprises – those profit-seeking organizations that operate outside the law on a massive scale – the directive criminalizes the behavior of ordinary consumers and legitimate business enterprises[14].’ In its analysis, the Foundation for a Free Information Infrastructure (FFII) stated that ‘we question whether an across-the-board criminalization of commercial scale IP infringements throughout the EU is actually in the public interest and whether it serves justice effectively[15].’
The proposal also drew criticism from academics. Neeraj Agarwal[16] listed in his article ‘Evaluating Ipred2: The Wrong Answer to Counterfeiting and Piracy[17] ’ two reasons as to why this proposal was unnecessary and problematic. First, he argues that ‘national and international laws address broad range of intellectual property rights and provide civil, administrative, and criminal remedies. These laws are adequate primarily because their scope is narrowly tailored as opposed to IPRED2 which was overly broad[18].’ Second, he states that particularly the terms ‘aiding’, ‘abetting’, and ‘incitement’ are unclear and imprecise that will lead to the ‘unwarranted punishment of individuals and legitimate users via prosecution and hefty penalties[19].’
Copyrights are protected under international agreements, E.U. law, and national laws. At the international level, Berne Convention for the Protection of Literary and Artistic Works (1971), Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), WIPO Copyright Treaty of 1996, WIPO Performances and Phonograms Treaty of 1996, and Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) govern the rules on copyrights and copyright enforcement.
Berne Convention is founded upon three main principles; the principle of automatic protection[20], the principle of national treatment[21], and the principle of the independence of the protection[22].
The Rome Convention provides protection for performances of performers, phonograms of producers of phonograms and broadcasts of broadcasting organizations against acts such as broadcasting or communication to the public of their live performance, the fixation of their live performance, direct or indirect reproduction of phonograms, rebroadcasting of broadcasts, etc.
WIPO Copyright Treaty of 1996 governs exclusive rights conferred by copyrights; the main objective of this treaty was to adjust and update current regulations due to advances in information technology. The treaty provides protections for copyrights including the right of distribution (Article 6), the right of rental (Article 7), and the right of communication to the public (Article 8).
Finally, copyrights are governed under Articles 9 – 14 in the TRIPS agreement. While Article 9 of TRIPS makes a reference to the Articles 1 through 21 of Berne Convention, recognizing the Members’ obligations to comply with these articles; Article 41 governs the general obligations of the Members’ general obligations as to the enforcement of intellectual property rights.
At the national level, although there are standard rules to a certain extent as a result of international treaties, each national law can show significant differences in dealing with copyright enforcement. These differences are liable to ‘hinder economies of scale for new products and services containing copyrights[23].’ Particularly in the European Union, in order to overcome the discrepancies between Member States’ domestic laws, there have been a number of directives passed to harmonize these national laws. As a framework rule, Article 118 TFEU gives power to the European Parliament and the Council to ‘establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralized Union-wide authorization, coordination and supervision arrangements.’ The European Parliament and the Council have enacted a number of directives in order to harmonize national laws in the field of intellectual property. These directives and the rights they protect can be listed as follows[24]:
- Directive 2001/29/EC on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society; right of reproduction for authors, performers, producers of phonograms and films and broadcasting organizations is governed by Article 2. Right of communication to public of works and making available to public is governed under Article 3.
- Directive 2006/116/EC on the Term of Protection of Copyright and Certain Related Rights;
- Directive 2000/31/EC (Directive on Electronic Commerce).
- Directive 2004/48/EC (Intellectual Property Rights Enforcement Directive, also known as ‘IPRED 1’) provides administrative and civil remedies for intellectual property rights violations.
Infringement of exclusive rights that are protected by these Directives could be in the form of making duplicate copies of purchased media such as audio CDs or DVDs; exchanging copyrighted media through peer-to-peer networks for private use; making available to public copyrighted materials on sharing platforms (peer-to-peer networks, streaming on ‘tube’ sites, uploading on web storages and distributing the download links) whether they are purchased or not purchased and regardless of commercial expectations; or sales of infringing copies of copyrighted media on the Web.
As seen above, the harmonization rules indicate a fragmented legal environment across the E.U. and this makes it challenging for the Member States to achieve consensus on a uniform set of intellectual property rules, particularly relating to enforcement of intellectual property rights.
Finally, in 2006, the European Commission tried to enact a directive designed to criminalize individuals for infringement of intellectual property rights, namely the Intellectual Property Rights Enforcement Directive[25].
This directive proposal has been severely criticized for being ‘dangerously unclear’ (i.e. the term ‘copyright piracy’ was not defined at all) and not having any provisions against abuse. It was argued that if passed, this directive would have led certain companies to relocate outside the E.U. Furthermore, the opponents argued that this directive made all commercial violations of intellectual property rights a crime whereas not all violations necessarily meant piracy. Consequently, infringers would face disproportionate penalties.
The proposal came after the enactment of Directive 2004/48/EC[26] (also known as IPRED) in 2005, and was frozen in the Council of the E.U. in 2006. Article 3 of the IPRED2 proposal ruled that “all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences[27].”
Liability for online copyright infringement has various subtypes including the liability of the Internet service providers (ISPs) and the liability of end-users. This paper will only discuss the liability of ISPS and users in the following sections.
ISPs’ direct liability issue is relatively easy to handle because the definition of direct liability is clear. So, the ISPs know exactly what kind of acts would render them liable for infringement. As Thomas Hays states[28], installing and operating hardware and software for copying and broadcasting as well as commercializing the copyrighted works without authorization would clearly be infringement and the ISPs will be directly liable for infringement in these cases.
An ISP’s direct liability arises from the ISP’s own activity such as duplicating copyrighted material that is uploaded to the website, distributing copyrighted material without the consent of authors etc. Direct liability has two elements; ‘a) the plaintiff must show ownership of the allegedly infringing material; b) the plaintiff must demonstrate that the alleged infringers violated an exclusive right granted to the copyright holder[29].’Although it may be argued that providing Internet service to an infringer results in direct liability of the ISP in that it is aiding, abetting or inciting infringement. The U.S. courts are reluctant to hold ISPs directly liable for third parties’ infringements using ISPs’ platforms. The traditional approach of the U.S. courts was that ISPs could also be held liable for the infringement of third parties. For instance, in the Playboy Enterprises, Inc. v. Frena[30] case, the Court concluded that ‘it does not matter that defendant Frena claims he did not make the copies itself[31].’ However, in later cases, this notion was abandoned in favor of ISPs. For instance, in Religious Technology Center v. Netcom case, the Court held that ‘where the infringing subscriber is clearly directly liable for the same act, it does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for functioning of the Internet[32].’
In the E.U., the acts of reproducing and communicating to the public are governed under Articles 2 and 3 of Directive 2001/29/EC. Pursuant to these articles, reproduction could be made by any means and in any form, directly or indirectly, in whole or in part. Article 2 ensures the implementation of Article 9(1) in Berne Convention within the Union which states ‘authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form[33].’ Compliance to Article 9(1) of Berne Convention is also ensured by Article 1(4) of the WIPO Copyright Treaty which states ‘Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention[34].’
Google v. Copiepresse[35] is a prominent case as it involves reproduction and making available to the public of works. The official disputes between Copiepresse and Google date back to 2006 when Copipresse took Google before the High Court of Brussels in August 2006. Copiepresse, who represents a number of newspapers in Belgium, claimed that by including headlines and links to online stories from the Belgian press without its prior permission, Google News infringed the copyright and sui generis database rights of its newspaper members including ‘‘La Libre Belgique’’, ‘‘La Dernière Heure’’ and ‘‘Le Soir’’[36]. According to the expert report examining the functioning of Google News which involved caching, Google News caused
‘loss of control by newspapers over their web sites and their content; circumvented advertising on the websites of the newspapers; and the Google ‘cached[37] ’ option equaled to saving the entire article with a view to redistribution and enabled by-passing of registrations (and the related payments) requested by the publisher for access to archived news[38].’
In September the Court ruled in favor of Copiepresse and ordered Google to withdraw from its sites all copyrighted materials (articles, photographs, etc) of the Belgian newspapers that are represented by Copiepresse under a daily penalty of 1,000,000 EUR for every day of delay. Google asked the Court to reconsider its ruling; yet the Court in November confirmed its September ruling that Google could not claim any exception stipulated in Directive 2001/29/EC. The Court found Directive 2000/31/EC irrelevant in this case on the grounds that ‘it is the behavior of Google itself that is incriminated and not the content of the sites on which Google permits access and with regard to the “caching”, the matter under dispute is not the temporary storage of the cached page, the storage required for the indexation of this page, but its availability[39].’
Google appealed the Court’s ruling; however, the Court of Appeal in Brussels on May 5 upheld[40] the February 2007 ruling that forced Google to remove links and snippets of articles from French- and German-language Belgian newspapers from Google.com and Google.be[41].
In summary, Google, by caching the entire website of a newspaper company and displaying it according to search parameters, was found liable for breaching the copyright law, including Article 2 and 3 of Directive 2001/29/EC, by way of reproduction and communication to the public of the titles and articles and the short extracts from articles.
Although what rendered Google liable for copyright infringement was copying the entire titles or articles of the aforementioned authors, one could also be liable of violating reproduction or communication to public rights just by copying a small part of a news article as is the case in Infopaq v. Danske Dagblades[42]. Infopaq is an organization providing media and news monitoring services. Its services include producing summaries of selected articles from Danish daily newspapers and other periodicals. Summaries are sent to its customers by e-mail[43]. Danske Dagblades Forening, on the other side, is a professional association of Danish newspapers, also the complainant in the case; claiming that Infopaq was infringing its members’ copyrights by scanning and generating summaries of the members’ articles without their consent. Infopaq’s process could be summarized as follows:
‘Infopaq employees first register the relevant publications manually in an electronic database. Infopaq then scans the publications, creating tagged image files (TIFF) file for each page of the publication; these files are then scanned and converted into text files using optical character recognition (OCR) software. The text files are used to find a pre-defined search word. Each time a match for a search word is found, data is generated giving the publication, section and page number on which the match was found. The system also captures an eleven word extract showing the search term in context. The process ends with Infopaq producing a printed sheet containing this summary information[44].’
The ECJ ruled that ‘an act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29, if the elements thus reproduced are the expression of the intellectual creation of their author[45].’ The Advocate General Verica Trstenjak provided a cumulative list of conditions to be fulfilled in order to benefit from the exception governed under Article 5(1) of Directive 2001/29/EC. Accordingly, ‘the act should be temporary; [it must be] transient[46] or incidental; [it must be] an integral and essential part of a technological process; the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject-matter; and the act has no independent economic significance[47].’ The Court observed that Infopaq, in its last act of reproduction, it printed out files containing the extracts of 11 words and thus reproduced those extracts on a paper medium. The Court stated that ‘once the reproduction has been affixed onto such a medium, it disappears only when the paper itself is destroyed[48] ’ which eliminates the possibility of automated deletion without human intervention –a requirement for the process to be considered transient or incidental. Therefore, Infopaq could not use Article 5(1) of Directive 2001/29/EC to be exempt from liability for violating authors’ reproduction rights.
Making available to the public can be made by wire or wireless, in such a way that members of the public may access them from a place and at a time chosen by them. Primary examples to these acts are uploading copyrighted media (movies, songs, static images etc.) on YouTube, Flickr, Blogspot.com, Rapidshare, etc. On 9 May 2011, YouTube announced that it has partnered with Sony Pictures, Universal, and Warner Bros to provide on-demand movie services[49] ; and this will result in increased accessibility of media online. User will be able to view movies they want at their convenience, anywhere with internet connection. This highlights the critical role of Web 2.0 platforms in that the provision of on-demand videos on these platforms is an example for making available to public within the meaning of Article 3 of Directive 2001/29/EC.
As Web 2.0 involves user-generated content, these sharing platforms tend to control users’ activities in order to avoid liability. A somewhat proactive tool that ISPs and web hosts use to keep user-generated content within legal borders is the ‘terms of use.’ Most websites that offer membership require their members to accept these terms of use for various purposes where the user cannot upload content without accepting these terms first. Common features of these terms of use can be listed as following[50]:
- Limiting the host’s liability for any damage incurred by a user’s infringing activity;
- Expressly placing all responsibility for user-uploaded content;
- Indemnities from each user against any loss or damage;
- Warranty from each user that the uploaded material does not infringe copyrights.
Indirect liability is present when a third party is aiding or abetting and inciting infringements of the primary infringer. These acts could be in the forms of providing a web service (hosting, providing domain address, embedding, hyperlinking, etc.) on the Internet, broadcasting the infringing material or allowing the sales of the infringing material in a shop whether it be brick and mortar shop or an online store.
Thomas Hays admittedly argues that although national laws and international agreements keep addressing the newborn legal concerns; they have not been able to keep up with the fast developments in the computer technologies, and are far from ‘accommodating changes in ways people use these technologies that may challenge or enhance the copyright owners’ interests[51].’ The author gives the United States example, arguing that neither the law nor the enforcement system have sufficiently addressed the development of peer-to-peer sharing activities. The example is not limited to the United States; peer-to-peer networks have also affected the Member States of the European Union as well as other countries.
i) Indirect Liability in the U.S.
In the U.S. law, the term ‘secondary liability’ is the equivalent term for indirect liability. Secondary liability consists of ‘contributory liability’ and ‘vicarious liability.’ Under the contributory liability definition an individual is a contributory infringer when he or she knowingly induces, causes, or substantially contributes to the infringing act of another[52]. Contributory infringement in this sense has three main elements; ‘the existence of a primary – or direct – infringer; knowledge on the part of the contributory infringer of the underlying primary infringement; and a material contribution on the part of the contributory infringer towards facilitating the infringing act[53].’ On the other hand, a vicarious infringer is often an employer, a supervisor, or someone who has hierarchical authority over an individual who conducts the actual infringement. The employer is not required or expected to know or should have known of the infringing activity; the main factor is the connection with the direct infringer. The ability to control the actions of the primary infringer is also important in determining vicarious liability.
Indirect liability is an essential part copyright enforcement in various ways. First of all, it gives additional security to copyright owners’ rights to damages in that when the infringing employee (direct infringer) may not afford paying for the damages, the vicariously liable employer may indeed compensate for the damages. Second, indirect liability imposes extra responsibility onto individuals who may later be subject to vicarious liability, to exercise more care in hiring employees or building any other type of relationship with the potential infringers. This helps minimize the risk of infringement; for instance, the employer will not hire – or will exercise stricter control over – employees who are liable to conduct infringing activities.
A landmark case in the U.S. Copyright Law is MGM Studios, Inc. v. Grokster, Ltd. that ‘specifically addresses the legality of peer-to-peer Internet file-sharing services, but has broad implications for any technology that could potentially be used to infringe on copyrighted materials[54].’ Grokster Ltd. (the creator of Grokster P2P file sharing client) and StreamCast Networks (distributor of distributes Morpheus client software) were brought before the court by Metro-Goldwyn-Mayer Studios Inc. (MGM) in 2001 for copyright infringement. The United States District Court for the Central District of California dismissed the case in 2003[55]. The Court’s judgment later was upheld by the Ninth Circuit Court of Appeals in 2004[56], holding that ‘Grokster was not liable for contributory infringement because it lacked sufficient knowledge of the infringement and it did not materially contribute to the copyright infringement[57].’ According to the Court, the index of the copyrighted files that were shared was not stored in Grokster’s servers therefore Grokster could not possibly know which files were being shared. Furthermore, the Court held that Grokster was not liable for vicarious copyright infringement. The Court analyzed the conditions for vicarious liability of ISPs which are (1) direct infringement by a primary party, (2) a direct financial benefit to the defendant, and (3) the right and ability to supervise the infringers. According to the Court ‘It does not appear from any of the evidence in the record that either of the defendants has the ability to block access to individual users[58].’ Affirming the District Court’s decision, the Ninth Circuit states that ‘none of the communication between defendants and users provides a point of access for filtering or searching for infringing files, since infringing material and index information do not pass through defendants' computers[59].’
[...]
[1] Kelly Tickle, ‘The Vicarious Liability of Electronic Bulletin Board Operators for the Copyright Infringement Occurring on Their Bulletin Boards’, Iowa Law Review, (1995), 2.
[2] The words ‘user’ and ‘subscriber’ will be used interchangeably in this thesis. Both mean ‘a high-speed communications connection used for accessing the Internet and carrying short-range transmissions over ordinary telephone lines’ (definition available online at: http://tinyurl.com/446alzb).
[3] Shawn Pelsinger, ‘Liberia'S Long Tail: How Web 2.0 is Changing and Challenging Truth Commissions’, Human Rights Law Review, (2010), 3.
[4] Darcy DiNucci, Fragmented Future, 53 (4) Print, (1999), 32. Available online at: http://tinyurl.com/3z6gwap. Access 03.06.2011.
[5] Mark Lawson, “Berners-Lee on the Read/Write Web” (9 August 2005), BBC News. Available online at http://tinyurl.com/3mfmhsv Last access 15 February 2011.
[6] Although the terms ‘Internet’ and ‘Web’ are used interchangeably in daily life, distinction between these terms needs to be made in order to avoid any confusion. The term ‘Internet’ refers to a network of interconnected computers. The term ‘Web’ refers to a collection of interconnected documents linked by hyperlinks and uniform resource locators (URLs).
[7] A definition of ISP is given as ‘An organization that provides access to the Internet. Connection to the user is provided via dial-up, ISDN, cable, DSL, T1/T3 lines or fiber. Customers are generally billed a fixed rate per month, but other charges may apply.’ Source: http://tinyurl.com/3prsnxx
[8] Olivier Bomsel and Heritiana Ranaivoson, ‘Decreasing Copyright Enforcement Costs: The Scope Of a Graduated Response’, 6(2) Review of Economic Research on Copyright Issues, (2009),14.
[9] Web2Rights, ‘Web2.0 and IP Factsheet’, (28.03.2008). Available online at: http://tinyurl.com/3zg8ut2. Access 31.03.2011.
[10] Amended proposal for a Directive of the European Parliament and of the Council on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights, COM(2006)168 final 2005/0127 (COD) 26.4.2006. Also known as ‘IPRED 2.’ Available online at: http://tinyurl.com/yhskbkt. Access: 10.05.2011.
[11] Ibid.
[12] Case ECJ C-176/03, Commission v. Council, [2005], C 315/03
[13] Ibid. Paragraph 48 of the judgment.
[14] Coalition Report, Amended Proposal for a Directive of the European Parliament and of the Council on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights. Available online at: http://tinyurl.com/6eu3frr. Access: 10.05.2011.
[15] ‘Jonas Maebe, ‘To Lisbon or to Prison?’ FFII Position Paper, Amendments and Voting Lists. Available online at: http://tinyurl.com/6axa2m8. Access: 10.05.2011
[16] Neeraj Agarwal, Ph.D. is the Regents of the University of Wisconsin.
[17] Neeraj Agarwal, ‘Evaluating Ipred2: The Wrong Answer to Counterfeiting and Piracy’, 27 Wisconsin International Law Journal, (2010), 790 .
[18] Ibid. page 791.
[19] Ibid. page 792.
[20] The protection must be unconditional in all contracting States.
[21] States must be given the same protection in each of the other contracting States.
[22] Protection is independent of the existence of protection in the country of origin of the work.
[23] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, OJ 2001 L167/10.
[24] Given the subject of this thesis, only the directives that are related to online copyright infringement are listed.
[25] Note 10 above.
[26] Directive 2004/48/EC of the European Parliament and of the Council Of 29 April 2004 on the Enforcement of Intellectual Property Rights, OJ 2004 L 157/45.
[27] Amended Proposal for a Directive of the European Parliament and of the Council on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights, COM(2006) 168 final 2005/0127 (COD).
[28] Thomas Hays, ‘The Evolution and Decentralization of Secondary Liability for Infringements of Copyright-Protected Works: Part 1’, 28(12), E.I.P.R. (2006), 617 .
[29] Bryan Mercurio, ‘Internet Service Provider Liability for Copyright Infringements of Subscribers: A Comparison of the American and Australian Efforts to Combat the Uncertainty’, 9 (4) Murdoch University Electronic Journal of Law, (2002), 1. Available online at: http://tinyurl.com/6j7xses. Access 05.13.2011.
[30] The defendant George Frena operated a subscription computer bulletin board service, Techs Warehouse BBS ("BBS") that distributed unauthorized copies of Plaintiff Playboy Enterprises, Inc.’s copyrighted photographs. Subscribers of BBS could view and download Playboys Enterprises’s copyrighted photographs in high quality.
[31] United States District Court, M.D. Florida, Jacksonville Division, [1993], Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (M.D. Fla. 1993), No. 93-489-Civ-J-20. Available online at: http://tinyurl.com/65p2b9c. Access 13.05.2011.
[32] Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995). Available online at: http://tinyurl.com/65hbcc7. Access 13.05.2011.
[33] Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, as last revised at Paris on July 24, 1971, 1161 U.N.T.S. 30, Article 2(1).
[34] WIPO Copyright Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 36 I.L.M. 65 (1997), Article 1(4).
[35] Google v. Copiepresse, Tribunal de premiere instance de Bruxelles, No. 06/10.928/C.
[36] Philippe Laurent , ‘Google News banned by Brussels High Court – Copiepresse SCRL v. Google Inc. – Prohibitory injunction of the President of the High Court of Brussels, 5 September 2006’, (2007), 23 Computer Law & Security Report, 83.
[37] ‘Google takes a snapshot of each page examined as it crawls the web and caches these which makes it possible to consult this copy at any moment in the case that the original page (or Internet) is unavailable. If you click on the "Cached" link of a web page, Google will show the web page as it looked when it was last indexed. Moreover the cached content is the content Google uses to judge whether this page is a relevant match for your query. When the cached page is displayed, it will have a header at the top which serves as a reminder that this is a cached copy of the page and not the original page and which cites the terms of the request which resulted its inclusion in the results of the search.’ Definition is taken from the judgment. See note 35 above.
[38] Note 35 above, 82.
[39] Ibid.
[40] Google v. Copiepresse, La cour d’appel de Bruxelles, 9eme chambre, R.G. 2007/AR/1730, R.N. 2011/2999-817. Available online at: http://tinyurl.com/6fo7pwp. Access 15.05.2011.
[41] James Joyner, ‘Google Loses Belgian Copyright Case’, May 8 2011. Available online at: http://tinyurl.com/6j2z799. Access 15.05.2011.
[42] Case C-5/08, Infopaq v. Danske Dagblades, [2009], ECR I-06569.
[43] Emily Parris, ‘ECJ Rules on the Scope of Copyright Infringement Exception’, 28 July 2009. Available online at: http://tinyurl.com/6j9serv. Access 16.05.2011.
[44] Ibid.
[45] Note 42 above, paragraph 51.
[46] The word transient is defined as ‘passing especially quickly into and out of existence.’ Definition available at: http://tinyurl.com/ybdf6sm.
[47] Advocate General Verica Trstenjak in case Case C-5/08, Infopaq v. Danske Dagblades, [2009], ECR I-06569.
[48] Ibid paragraphs 67-68.
[49] ‘Get more into movies on YouTube’, Available at: http://tinyurl.com/3hfwsl6. Access 10.05.2011.
[50] Jessica Coates et al , ‘ Legal Aspects of Web 2.0 Activities: Management of Legal Risk Associated with the Use of YouTube, MySpace and Second Life’ , Art Centre of Excellence for Creative Industries and Innovation, (July 2007), Queensland University of Technology, Australia.
[51] Hays note 28 above, 618.
[52] Douglas Lichtman and William Landes, ‘Indirect Liability for Copyright Infringement: An Economic Perspective’, (16)2, Harvard Journal of Law & Technology, (2003), 396.
[53] Hays, note 28 above, 619.
[54] David McGuire, ‘At a Glance: MGM v. Grokster’, March 28, 2005, The Washington Post. Available online at: http://tinyurl.com/57e8l. Access 16.05.2011.
[55] Metro‐Goldwyn‐Mayer Studios Inc. v. Grokster, The United States District Court for the Central District of California, [2003], CV 01-08541-SVW (PJWx).
[56] Metro‐Goldwyn‐Mayer Studios Inc. v. Grokster, 380 F.3d 1154 (9th Cir. 2004). Available online at: http://tinyurl.com/5sq7env. Access 16.05.2011.
[57] MGM v. Grokster, Duke Law, available online at: http://tinyurl.com/6dkqa4n. Access 16.05.2011.
[58] Ibid.
[59] Ibid.
