Showing posts with label what. Show all posts
Showing posts with label what. Show all posts
Sunday, February 26, 2017
The Commissions DSMS and CJEU case law what relationship
The Commissions DSMS and CJEU case law what relationship
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| The proposal (for a directive on copyright in the Digital Single Market) |
As reported by this blog, on 14 September last the EU Commission unveiled its second copyright package, ie a new set of proposals [the first being the proposed regulation on cross-border content portability in December 2015] aimed at improving the existing EU copyright framework as part of its Digital Single Market Strategy (DSMS).
Among the contents of the package, so far what has attracted the greatest degree of attention is the Commissions proposal for a directive on copyright in the Digital Single Market (DSM Directive).
Much has been said on the ambitiousness (or lack thereof) and merits (or demerits, depending on ones own perspective) of relevant provisions, notably those regarding new mandatory exceptions [Articles 3 to 6], a new related right in press publications [Article 11], and the so called value gap [Article 13].
Discussion has been focusing on the relationship between the new proposed directive and the existing body of legislation [for instance: is Article 13 compatible with the Ecommerce Directive? The DSM Directive is silent as regards how it relates to this piece of EU legislation] and the economic/legal rationale of the various initiatives [do we really need a new related right for press publishers, and will it change anything?].
The DSM Directive and the CJEU: why asking?
What however appears to have been left partly out of the debate is what relationship the DSM Directive has and will have with the existing body of case law of the Court of Justice of the European Union (CJEU).
The question is worth addressing for two main reasons, I think.
First, because the DSM Directive itself attempts a codification of CJEU case law. Examples are Recital 38 [with regard to the 2009 decision in LOréal, noted here] and Recital 36 [with regard to the 2015 decision in Reprobel, noted here].
Secondly, because the DSM refers to key concepts but fails to define them. This is particularly the case of communication to the public. For instance, from Recital 38 it is apparent that an obligation for hosting providers that "store and provide access to the public to copyright protected works or other subject-matter uploaded by their users" to conclude licensing agreements with rightholders arises when they perform an act of communication to the public. Similarly, with regard to the press publishers right, Recital 33 clarifies (?) that this new related right would not go as far as including "acts of hyperlinking which do not constitute communication to the public" within its scope.
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| Does the proposed directive re-write certain CJEU case law? |
(1) A "codification" of existing CJEU case law: a good attempt?
Starting from the first question, while in principle it is laudable that policy action considers and addresses the implications of judicial decisions, in the case of the DSM Directive this attempt may prove controversial.
Recital 38 states that "[i]n respect of Article 14 [of the Ecommerce Directive], it is necessary to verify whether the service provider plays an active role, including by optimising the presentation of the uploaded works or subject-matter or promoting them, irrespective of the nature of the means used therefor."
From this it could appear that: optimisation ? active role ? ineligibility for Article 14 safe harbour
But is this what the CJEU really said in LOréal [and previously, in Google France]? Didnt the Court rather state [simplifying] that: active role, eg optimisation ? knowledge/control data stored ? ineligibility for Article 14 safe harbour
Rather than codifying LOréal - at Recital 38 the Commission has created done something different, in the sense that the knowledge/control element appears to have vanished. Does this mean that falling within Article 14 safe harbour might become increasingly difficult for hosting providers that give access to "large amounts of works"? If it was sufficient for a hosting provider to optimise results [even by means of an automated process and even without the need for any knowledge/control of relevant data] to be outside the boundaries of the safe harbour, then Article 14 would become applicable in the [very tiny, eg possibly only Dropbox-like situations] minority of cases ...
Turning to Recital 36, the Commission appears to link the introduction of a press publishers right to the outcome of the Reprobel case. But did that case [beneficiaries of private copying levies on printers sales] have to do with "press publications" or "digital uses" at all? No, so the raison dêtre of Recital 36 is a bit difficult to grasp ...
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| Acts of "communication to the public" |
(2) Lack of definition of key concepts
Turning to the second point, the DSM Directive refers extensively to a concept that the InfoSoc Directive itself fails to define, ie "communication to the public".
It has taken the CJEU several judgments to try and make sense of the notion of "communication to the public", but as of today it is unclear whether the subjects referred to in Article 13 of the DSM Directive would be considered as making acts of communication to the public themselves. Yet, the entire Article 13 is built - and almost considers it a given - on the idea that hosting providers may be primarily liable for unauthorised acts of communication ...
In the recent GS Media decision [discussed here, here, here, here], the CJEU confirmed that if one construes communication as merely requiring the making available of a work, ie without the need for any actual transmission, then what needs to be considered is "the indispensable role played by the user and the deliberate nature of its intervention. The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the ... work" [para 35]
One could wonder whether in the case of hosting platforms, it is the host or rather the user that plays such indispensable role to give access to a protected work.
As I noted here, in light of certain decisions of the CJEU and national courts alike, it may be argued that – in the case of a copyright work made available through the service of a passive online intermediary (host) – the latter would not commit an act of (unauthorised) communication to the public (potentially giving rise to primary liability for copyright infringement), because the role that is ‘indispensable’ in the whole process is the one of the third-party/uploader, rather than that of the hosting provider.
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| Should anything be changed in the proposed directive? |
A similar degree of uncertainty also exists in relation to Recital 33, with the addition that in the case of the press publishers right it is not entirely clear why Article 11 refers to the making available right [ie a sub-species of the right of communication to the public, as the CJEU clarified in C More, noted here] while Recital 33 refers to the right of communication to the public ...
All in all the DSM Directive fails to define what is to be intended by "communication to the public" and the questions becomes whether this would raise uncertainties when determining when a host provider is required - as opposed to merely invited - to conclude licensing agreements.
Conclusion
Unlike legislative proposals advanced in the past, from the DSM Directive it is clear that EU legislature is to give account not only of existing legislation but also CJEU case law and its impact.
While this demonstrates both the relevance of the CJEU in shaping the EU copyright regime and the attention that different EU institutions devote to each others activity, it also raises questions regarding the substance of such interplay and resulting power struggles.
On the one hand, the DSM Directive seems to engage in an attempt to codify or even re-write and remedy to negative [negative, but for whom?] outcomes of CJEU cases. Recital 38 and LOréal is an example but an even more bizarre one if Recital 36 and Reprobel ...
On the other hand, certain provisions in the DSM Directive [eg Article 13] are built around certain key notions, eg communication to the public, that at the legislative level are defined nowhere. The question thus becomes whether the resulting gaps should be filled by referring to relevant CJEU decisions. If this was the case than the results might not be those wished for by certain categories of stakeholders ...
Available link for download
Friday, February 10, 2017
What I talk about when I talk about running by Haruki Murakami
What I talk about when I talk about running by Haruki Murakami
An intimate look at writing, running, and the incredible way they intersect, from the incomparable, bestselling author Haruki Murakami.
While simply training for New York City Marathon would be enough for most people, Haruki Murakamis decided to write about it as well. The result is a beautiful memoir about his intertwined obsessions with running and writing, full of vivid memories and insights, including the eureka moment when he decided to become a writer.
By turns funny and sobering, playful and philosophical, What I Talk About When I Talk About Running is rich and revelatory, both for fans of this masterful yet guardedly private writer and for the exploding population of athletes who find similar satisfaction in athletic pursuit.
Support the Author, Buy the Book
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| Buy the original copy of the book on Amazon |
Download Links for the Ebook
- Free Download What I talk about when I talk about running EPUB eBook [Box]
- Free Download What I talk about when I talk about running EPUB eBook [OneDrive]
An Excerpt from What I Talk about when I talk about running by Haruki Murakami Ebook
As everybody knows, I’m no gentleman, so maybe I shouldn’t be worrying about this to begin with, but still, I’m a little hesitant about writing this book. This might come off sounding like a dodge, but this is a book about running, not a treatise on how to be healthy. I’m not trying here to give advice like, “Okay everybody—let’s run every day to stay healthy!” Instead, this is a book in which I’ve gathered my thoughts about what running has meant to me as a person. Just a book in which I ponder various things and think out loud.
Somerset Maugham once wrote that in each shave lies a philosophy. I couldn’t agree more. No matter how mundane some action might appear, keep at it long enough and it becomes a contemplative, even meditative act. As a writer, then, and as a runner, I don’t find that writing and publishing a book of my own personal thoughts about running makes me stray too far off my usual path. Perhaps I’m just too painstaking a type of person, but I can’t grasp much of anything without putting down my thoughts in writing, so I had to actually get my hands working and write these words. Otherwise, I’d never know what running means to me.
Once, I was lying around a hotel room in Paris reading the International Herald Tribune when I came across a special article on the marathon. There were interviews with several famous marathon runners, and they were asked what special mantra goes through their head to keep themselves pumped during a race. An interesting question, I thought. I was impressed by all the different things these runners think about as they run 26.2 miles. It just goes to show how grueling an event a marathon really is. If you don’t keep repeating a mantra of some sort to yourself, you’ll never survive.
One runner told of a mantra his older brother, also a runner, had taught him which he’s pondered ever since he began running. Here it is: Pain is inevitable. Suffering is optional. Say you’re running and you start to think, Man this hurts, I can’t take it anymore. The hurt part is an unavoidable reality, but whether or not you can stand any more is up to the runner himself. This pretty much sums up the most important aspect of marathon running.
It’s been some ten years since I first had the idea of a book about running, but the years went by with me trying out one approach after another, never actually settling down to write it. Running is sort of a vague theme to begin with, and I found it hard to figure out exactly what I should say about it.
At a certain point, though, I decided that I should just write honestly about what I think and feel about running, and stick to my own style. I figured that was the only way to get going, and I started writing the book, bit by bit, in the summer of 2005, finishing it in the fall of 2006. Other than a few places where I quote from previous writings I’ve done, the bulk of this book records my thoughts and feelings in real time. One thing I noticed was that writing honestly about running and writing honestly about myself are nearly the same thing. So I suppose it’s all right to read this as a kind of memoir centered on the act of running.
Though I wouldn’t call any of this philosophy per se, this book does contain a certain amount of what might be dubbed life lessons. They might not amount to much, but they are personal lessons I’ve learned through actually putting my own body in motion, and thereby discovering that suffering is optional. They may not be lessons you can generalize, but that’s because what’s presented here is me, the kind of person I am.
Available link for download
Thursday, January 19, 2017
DJ Snake Lil Jon Turn Down For What Onderkoffer Remix 2016
DJ Snake Lil Jon Turn Down For What Onderkoffer Remix 2016
Judul Lagu : Turn Down For What (Onderkoffer Remix)
Durasi : 3.16 menit
Penyanyi :DJ Snake & Lil Jon
Jenis lagu : POP
Byte rate : 128 Kbps
Okeh langsung ke link download nya saja
Download Via : Userscloud
saya sarankan download nya pakai uc browser bagi pengguna smartphone androidAvailable link for download
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