Top 3 Predictions for copyright in 2019

by Roberto Valenti & Tommaso Fia

Copyright law is an evolving force. Indeed, its pivotal feature is human creativity – something hard for mankind to get rid of. So, what will happen in 2019 in copyright law in Italy and elsewhere? What are the main trends in copyright law for the next year?

  1. AI, Copyright and Secondary Ticketing: the Answer to the Machine is in the Machine

Artificial Intelligence (AI) has limitless potentials. If AI creates a work, can this be protected under copyright laws, and, if yes, who is the author? In 2018, this topic has been hyped by many journalists and commentators, especially after the sale of the portrait of Edmond de Belamy, an artwork made by a powerful AI system called GANs (Generative Adversarial Networks). See our previous blog post here.

In most countries of the world, legal systems exclude machines from the notion of authorship. However, this should not prevent AI creative works from being granting some form of protection.

Indeed, in several countries the threshold to get copyright protection is rather low. For example, in the Netherlands an individual is given copyright protection as long as human choices are involved (for example, as in the Edmond de Belamy’s case, embedding data and information on old paintings in the software). As a consequence, it can be argued that the person designing the software would enjoy copyright protection for both the software itself and the artwork. A similar argument could be made for Italy.

In 2019, several countries will take into account this issue, considering the most appropriate regime (including the adoption of a sui generis protection model), in any event clarifying if such creative works are protected by some kind of (exclusive) right.

Systems of AI are going to be used to solve the issue of secondary ticketing. This year, secondary ticketing appeared on the front pages of many Italian newspapers. In March 2018, the Ministry of Finance adopted a decree implementing “specifications and technical implementing rules on secondary ticketing” (the “Decree”). The Decree includes provisions attempting to comprehensively address the issue, granting the Italian Communication Authority (the “AGCOM”) more power in case of unlawful conducts in online environments.

Amongst other things, under Section 3(1) of the Decree “ticket retailers shall ensure that the sale, or other forms of placement through electronic communication networks, of tickets to entertainment activities is carried out exclusively through IT systems that, being capable of distinguishing between access carried out by a natural person and by an automated program, prevent the purchase by such a program, and which are also able to identify the purchaser”.

In 2019, the technical specifications for the implementation in Italy of the IT systems referred to above are going to be defined by means of a regulation of the Italian Tax Agency. This should bring more clarity and possibly limit the phenomenon.

  1. The EU Copyright Directive and Brexit

On September 12, 2018 the EU Parliament approved several amendments to the EU Commission’s proposal for a Directive on Copyright in the Digital Single Market (the “Proposal”), that includes controversial rules on copyright in digital environments. See our previous blog post here. The Proposal raises concerns on a set of provisions regulating the Internet content. Indeed, the most controversial provisions are:

  • Article 11, which sets out new rights for publishers; and
  • Article 13, which imposes the application of technical measures to prevent the unauthorized diffusion of copyrighted works.

The aim of the Proposal is to harmonize domestic laws on copyright of the Member States in order to create a digital single market in the EU.

The Proposal is currently under formal Trilogue discussions that are expected to conclude in the first months of 2019, in any event before March 2019 EU elections. The expectation is that the Proposal will be finally approved, and therefore from Spring 2019 each of the EU’s Member States will be required to implement the directive.

The proposal will likely be implemented in EU while the UK will leave the Union. In general, copyright is going to remain largely unaffected by Brexit, mainly in view of the fact that relevant EU legislation has already been implemented into UK law (in line with international treaties). This contributes to explain why copyright is not expressly dealt with in the draft text that has been agreed by the EU and UK negotiators.

That said, even in case of a soft Brexit, there will be both short and long term impacts. In the short run, the UK will be leaving the newly created “Digital Single Market” designed to cancel digital barriers across the EU, a legislation including different provisions regarding copyright which will not be applicable in the UK.

In the long run, the UK will not be bound by Court of Justice decisions, and this could lead to some divergence on how the laws are interpreted by the UK courts and the EU courts.

  1. ISP Liability for copyright infringement

In Italy the regulatory framework for the liability of ISP for copyright infringements committed by users is dictated by “Regulation on the protection of copyright on electronic communication networks and implementation procedures pursuant to Legislative Decree 9 April 2003, No. 70“, adopted by AGCOM with Resolution No. 680/13/CONS of December 12, 2013, recently modified with Resolution no. 490/18/CONS of October 16, 2018. Through such regulation, AGCOM has been provided with powers to act against copyright infringements occurring on the Internet by means of expedite precautionary measures and with specific measures to avoid reiteration of the infringements. For example, AGCOM can now order ISPs to adopt the most appropriate measures to avoid the repetition of identified copyright infringements.

On the basis of such powers, AGCOM updates, within three days from the request from right holders, the list of websites subject to inhibition of access that are regenerated by modifying the relevant domain name and whose access shall be prevented. Further measures may also consist of the so-called “notice and stay down“, which prevents access of contents already removed.

A similar approach has been taken by the Courts, which in 2018 have frequently granted copyright holders protection in the form of dynamic injunction against blatant infringement (see for example the dynamic injunction in the case decided by the IP Court of Milan on April 12, 2018).

We expect more decisions in the same direction in the year to come!

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