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Time to Look Again at Online Protection

Last week the European Court of Justice gave judgment in a case brought in Belgium by the Belgian Authors Composers and Publishers Society (SABAM).
This case, against  Netlog, a social networking site, followed a case decided last year against Scarlet Extended, an internet service provider. In both cases the Court held that the relative Directives, read together and construed the light of fundamental rights, precluded the grant of an injunction [interdict] that would have the effect of requiring the provider to install at its own entire expense an indiscriminate, permanent, customer-wide filtering system to scan everything while looking for alleged copyright-infringing files. The latest judgment will come as a relief to network providers but presents a headache for collection societies and other rightholders. They and their advisers will now need to think up a less draconian remedy more likely to be acceptable to the courts. The cases are against the background of the intensified row about the Anti-Counterfeiting Trade Agreement http://www.bbc.co.uk/news/technology-17012832. If the European Court of Justice thought the SABAM injunctions were disproportionate, what would it think of a Treaty that  includes provisions such as: “In determining the amount of damages for infringement… judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.”
Anyway, why was the Treaty not referred to the Court of Justice long ago for its Opinion, as many suggested? The cases may also affect the future of the UK Digital Economy Act 2010. On Monday, Musical Weekly reported on the continued non-implementation of the “three strikes” part of this Act http://www.musicweek.com/story.asp?sectioncode=1&storycode=1048563&c=1. The search is on again for laws that strike a fair balance between intellectual property rights and the rights to  communicate and provide facilities for communication.
For online intellectual property issues contact Jim McLean or Gordon Deane.

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