By Roberto Valenti, Alessandra Tozzi and Lara Mastrangelo

Copyright plays a paramount role in enhancing and protecting human creations, but, at the same time, it may clash with other fundamental rights and therefore needs to be balanced. During 2019 many events occurred in the copyright field. What will happen in the course of 2020?

1. Art and Algorithms: do we immediately need rules for AI’s creations?

As a new decade awaits and AI hype begins to dissipate, the need for regulations addressing AI becomes more stringent. As anticipated last year, AI technologies are gradually making their way also in areas traditionally distinctive of the human nature, such as creativity. For instance, over 2019 AI has been used in music production, art, literature, journalism, with the result that – in the very next future – law makers will be asked to either adapt copyright existing categories to AI, or create sui generis regimes.

The first attempt to extend copyright to AI creations was made by the UK Parliament over three decades ago. In particular, the Copyright, Designs and Patents Act 1988 includes the category of ‘computer-generated works’, i.e. those generated by a computer “in circumstances such that there is no human author of the work”. According to Section 9(3) of the Act, the author of a computer-generated work, “shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.

The European Union is approaching AI carefully and has not fully addressed the issue yet.

On 13 December 2019 the World Intellectual Property Organization (WIPO) launched a public consultation process on AI and IP policies inviting feedback on an issues paper (https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ip_ai_ge_20/wipo_ip_ai_2_ge_20_1.pdf ) designed to help define the most pressing questions likely to face IP policy makers as AI increases in importance. The deadline to provide papers is 14 February 2020. The results of the public consultation are going to impact the future decisions of legislators in different parts of the world.

The same exercise is currently undertaken in the United States. On 30 October 2019, the United States Patent and Trademark Office published a notice, whereby it asked the public for written comments on the impact of AI on copyright. For the time being, some basic guidance can be found in the “Compendium of US Copyright Office Practices”, stating that the Office will not register works produced by a machine or a mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.

It is important to bear in mind that common law regimes are more easily adjustable to AI’s creative works, as their main focus has always been the promotion of investments (and – consequently – remuneration of investors). By contrast, copyright laws in civil law countries are tailored on the person of the author and it would be hard to adapt them to AI systems. Hence, in these contexts a sui generis regime might be the most appropriate solution.

2. The EU Copyright Directive and Brexit

As predicted last year, the final Proposal of the Copyright Directive was finally approved on 17 April 2019 after many debates among the parties involved and significant amendments to the draft ultimately proposed in September 2018.

The two most relevant provisions are Articles 15 and 17 of the Directive (previous Articles 11 and 13):

• Article 15 regards the protection of press publications as to online uses by news aggregators and other platforms;
• Article 17 concerns the use of protected content by online content-sharing providers.

Member States are required to transpose the Directive into their own legal systems by 7 June 2021. France was the first country to implement it right on 23 July 2019 and such transposition came into effect on 24 October 2019. The text approved is faithful to the Directive and mostly amounts to the transposition in the French law of the Directive provisions. In Italy no draft has been publicly discussed yet. It is likely that the first draft will be made available in May 2020.

What about the UK? Brexit is likely take place in January 2020. Notwithstanding Brexit, UK is considering to transposing relevant parts of the Directive into national legislation. The consultation process should begin in January. 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 explains why copyright is not expressly dealt with in the draft text that has been agreed upon by the EU and UK negotiators.

3. ISP Liability for copyright infringement

In 2019 Courts gave great attention to ISPs, especially as to their roles and liabilities connected to the publication of illicit contents by online users on their platforms or made available on their networks. As anticipated in our 2019 predictions, the Court of Milan confirmed its approach granting dynamic injunctions against blatant copyright infringements committed online. In particular, the Court reached an established solution by which it requires hosting/access providers to remove or disable access to infringing contents within two working days from the request/order and confirmed the penalty of € 5,000 for not complying with such indications.

In 2019 Italian courts developed a specific orientation as to hosting providers liability online. The impulse came directly from the Italian Supreme Court in its leading case RTI v. Yahoo! (decision No. 7708, dated 19.03.2019), in which the Court confirmed the difference between “active” and “passive” hosting providers and set forth the criteria to distinguish them. The Court identified a series of “interference indicators”, which, in practice, need to be assessed on a case-by-case basis. Some of those indicators include, by way of example, the activities of filtering, selecting, indexing, aggregating, evaluating contents and all those conducts aimed at completing and enriching, in a non-passive way, the use of content by users. Where the hosting providers are found to be active, the liability exemptions provided for by Article 16 and 17 of Legislative Decree No. 70/2003 – which implements Directive 2000/31/EC – do not apply.

The principles established in this leading case were then applied by various Italian courts. For instance, the Court of Rome, in RTI v. Bit Kitchen Inc. (decision No. 18787, dated 03.10.2019), concluded that the presence of the above-mentioned indicators automatically holds hosting providers liable for illicit contents uploaded by their users regardless of them having been informed of their presence on their platforms. We expect the same trends in 2020, i.e. an increased attention towards providers’ liability where they, in fact, control the contents uploaded on their platforms or have sophisticated technological means to filter them automatically.

Check out other trending topics for 2020 at this link.