The Copyright 2023 guide provides the latest information on copyright protection, authorship, collective works, economic rights of copyright owners, copyright management systems, collective rights management, freedom of speech/right of information, neighbouring rights, and copyright infringement and litigation.
Last Updated: February 16, 2023
In reviewing the contents of this guide, it is interesting to see the broad range of issues to which copyright is being applied and which contributors believe are having the most impact in their jurisdictions. These range from the most cutting-edge technological advancements (the metaverse, non-fungible tokens (NFTs), AI) to the more traditional forms with which we associate copyright (art, photographs, music). Copyright is not merely being considered in the context of whether copyright arises in the works themselves, but how those works are being delivered to consumers also raises complex questions of whether the copyright in those works is being infringed and, if so, by whom? This overview attempts to pull together those threads from the national contributions.
With the rise in digitisation and online activity, complex issues regarding the scope of copyright protection are coming to the fore like never before. Alongside those new works arising through technical innovations, certain courts (most particularly in Europe and the UK) are considering what broader categories of works, many of which may still be considered to be quite traditional in nature (bicycles, jeans, etc), can qualify as copyright works – pushing against some jurisdictions’ historic trend towards pre-defined, closed lists of works in which copyright can subsist. This exciting development means that new angles of legal protection and attack may be on hand to creators and manufacturers that have never existed before.
Digital and Data Drive Developments
The French chapter’s reference to the Cour de Cassation’s decision in Cryo reminds us that the courts there determined that copyright protection in video games applies to more than merely the software that underpins those games, and that works need to be considered holistically; they also have numerous other copyright works embodied within them (eg, a script, soundtrack). Our French contributors discuss how this decision is likely to be highly relevant when courts are faced with how to define works as they appear within a metaverse (whether that be a gaming platform or blockchain-based ecosystem).
Whether new uses of existing works infringe copyright or are permissible transformative uses is also an issue that is likely to vary from jurisdiction to jurisdiction and which is a theme present in all contributions. By way of example, the fair dealing exceptions to copyright infringement in the UK are far narrower than the fair use exceptions that exist in the US. And even in the US the parameters of transformative uses (and the interplay with artists’ first amendment rights) are being keenly fought before the US courts, most noticeably in the case Andy Warhol Foundation for the Visual Arts, Inc. v Goldsmith, which at the time of print in February 2023 is awaiting a judgment from the US Supreme Court. This case could have considerable implications for transformative uses in the US, but should also be considered in tandem with the Southern District of New York’s finding in Hermes et al. v Rothschild where the defendant was not entitled to rely on a first amendment/transformative art defence in defending Hermes’ claim for trade mark infringement in relation to his creation of “MetaBirkin” NFTs.
The scope of transformative use and fair use is not just a hot topic in the US. Our Taiwanese contributors also reflect on recent case law where the fair use exception was relied upon in several cases relating to the use of photographs, third parties’ video content and concerts, with varying degrees of success. Fair dealing for the purposes of parody and pastiche were also considered in the UK in the Shazam case. With ever-emerging new uses, one can expect that this trend in the reliance on transformative use exceptions is likely to increase.
New ways in which content and creative works are being delivered and engaged with by consumers (such as in NFTs or metaverses) are also likely to create new revenue streams for rights-holders, and it will be interesting to observe how Collective Management Organisations (CMOs) and other rights-holders licence and account for such uses (as discussed in the French chapter). This development will be particularly interesting to keep track of against the backdrop of legislators also showing a desire for an increase in the regulatory oversight of online platforms (see for example the implementation of the Directive (EU) 2019/790 (the “DSM Directive”) regarding the additional obligations for content-rich online platforms).
Liability of online platforms has also been at issue across a number of jurisdictions, see for example the Indian section of this guide and the analysis of the Honourable Delhi High Court’s decision in Christian Louboutin Sas v Nakul Bajaj & Others. While this Indian case looks more closely at counterfeit goods based on trade mark infringements, other jurisdictions, most particularly in the Taiwan section, focus on how copyright works are being delivered to consumers (eg, apps offering hyperlinks to infringing works) and whether these delivery mechanisms and platforms infringe the copyright in those works. This is a matter that has been considered in various circumstances by the Court of Justice of the European Union (CJEU) (including in GS Media BV v Sanoma Media Netherlands BV and the joined cases C-682/18 (YouTube) and C-683/18 (Cyando)) and the UK (in particular in Warner Music & Sony Music v TuneIn which has been ongoing since November 2017) and is likely an area for further litigation as new online platforms continue to emerge and the national legislation governing their activities diverge.
In the arena of tech innovation, issues regarding generative AI models are also anticipated to be heavily litigated over the next couple of years, with Getty Images having filed a claim against Stability AI in the UK and the same and other entities being the subject of a copyright infringement claim by various photographers in the US.
Contributors discuss a number of issues arising in relation to AI-generated works.
By way of example, as the US section discusses in more detail, several attempts have been made in the US to have works generated by AI systems registered at the US Copyright Office – to date all such applications having been unsuccessful, but the matter is now also before the courts: see the discussion on Thaler v Perlmutter. Given the application of generative artworks (such as avatars in certain styles, memes, etc) a traditionally simple question of “who is the author of a work” appears to be becoming substantially more complex. This is not a point that can be considered in isolation and will be impacted by the terms of conditions of use of the AI systems themselves – though this of course in turn begs the question whether the system operators are entitled to assert copyright over works generated using their systems and, if so, whether they can do so solely through website terms and conditions.
Generative AI also feeds into the issue of data sets that are used for AI training models and other purposes. This is another area that is subject to both legislative and judicial law making in many jurisdictions. Singapore, the US and the EU have all recently taken steps to implement legislation regarding text and data mining (TDM), whereas in the UK (which has had a narrow exception for nearly a decade), the UK Intellectual Property Office announced in June 2022 that the UK planned to introduce more liberal exceptions for the purpose of TDM, but that plan has apparently been put on hold by the UK legislature in January 2023. Given the different approaches taken around the world, this is likely to lead to a tension between differing legislative frameworks which could impact where businesses choose to establish themselves. There is also likely to be further litigation regarding the balance of exceptions for the purpose of text and data mining and the enforceability of website terms and conditions against entities that webscrape to affect that TDM and whether that webscraping amounts to a breach of the website terms and conditions and/or copyright infringement (if indeed copyright subsists in the material scraped).
As many commentators in this guide have referred to (see in particular the French and Indian trends sections), jurisdictional issues regarding the enforcement of copyright is likely to be a complex area that platform operators (particularly those providing metaverse-style services), users and content owners are going to have to grapple with over the coming years.
Works in Which Copyright Subsists – the Originality Requirement
At the same time as rights-holders, content creators, platform developers and law makers are trying to deal with the application of copyright law to new technologies, more “traditional” concepts of copyright law also continue to be heavily litigated and developed around the world. It is the issue of originality which is creating the most significant waves in non-digital copyright issues. A trend in case law at the CJEU (Info, Cofemel, Brompton Bikes) demonstrates that works that might previously have been considered insufficiently “creative” to garner protection are now likely to obtain copyright protection in the EU provided the work is the author’s own intellectual creation and is an expression of that creation, and that any technical aspects do not prevent any creative freedom. Despite the UK now having left the EU, this is a judicial line of thinking that has been adopted by the UK courts suggesting that the “closed list” of copyright works provided for in UK copyright legislation can no longer be taken as exhaustive and the list of works that may be subject to copyright protection will arguably expand (as evidenced in the Shazam and Water Rower cases discussed in the UK chapter in which both fictional characters and exercise rowing machines may potentially be subject to copyright protection). The issue of originality has also recently been invoked in Taiwan in relation to the reproduction of photos showing existing factual material; the photos were not deemed to be a reflection of artistic expression and therefore were not protected by copyright.
Conclusion
It is interesting that as the types of work which may be subject to copyright expand, so too does the number of ways in which copyright works can be delivered to consumers grow. This means that not only are there potentially more rights-holders who can bring copyright infringement proceedings, but also that the number of targets who are potentially infringing those rights is increasing. With an increase in works and an increase in infringers, this suggests that there is only likely to be a growth in copyright litigation around the world.