Genius Media Group (Plaintiff) is a “digital media company,” one of whose “primary services is the development and maintenance of annotated music lyrics.” LyricFind is a Canadian company that maintains a database of music lyrics. Both Plaintiff and LyricFind “license lyrics for display and distribution from music publishers.” Google “owns and operates the internet’s dominant search platform.” Pursuant to an agreement “LyricFind provides lyrics to Google for use in Google’s search results.”
As noted in the Report, the Office believes that the identification and adoption of standard technical measures (“STMs”) may provide an opportunity to improve the overall functioning of the notice-and-takedown system through relatively small, incremental changes that nonetheless could have a large impact on the ability of all rightsholders to protect their rights online.
The challenge ahead: capitalizing on Europe’s intellectual assets to boost recovery and resilience
Intangible assets such as inventions, artistic and cultural creations, brands, software, knowhow, business processes and data are the cornerstones of today’s economy. Over the last two decades, the volume of annual investments in such ‘intellectual property products’ increased by 87% in the EU, while the volume of tangible (non-residential) investments increased by only 30%. Investments in intangibles were also significantly less affected by the 2008 economic crisis.
The technology that allows copyright owners to distribute content directly to consumers’ living rooms via streaming services also enables new forms of piracy: streaming of unlicensed content and stream-ripping – that is, using software to make an unlicensed copy of streamed content that would otherwise be licensed.
Requirements that pose a relatively minimal burden for large, established OSPs could be crippling for a small startup that lacks access to enterprise-level technology. Larger rightsholders with in-house enforcement teams may have more resources to monitor online infringement than small rightsholders that must face a choice between devoting their time to creative endeavors or to enforcing their rights.
Would it be necessary in your country to enact legislation to ensure that the results of the 2011 MoU (i.e. the agreements concluded between libraries and collecting societies) have a cross-border effect so that out of commerce works can be accessed across the EU?
Would it be necessary to develop mechanisms, beyond those already agreed for other types of content (e.g. for audio- or audio-visual collections, broadcasters’ archives)?
Irrespective of establishment of liability, EU law ensures that rights holders have the possibility to apply for an injunction against intermediaries whose services are used by third parties to infringe their Intellectual property rights (IPR).
OSPs seeking protection under the safe harbors in sections 512(b), (c), or (d), must, in addition to the section 512(i) requirements, maintain a compliant notice-and-takedown process by responding expeditiously to remove or disable access to material claimed to be infringing upon receipt of proper notice from a copyright owner or the owner’s authorized agent.
First, the Office recommends that Congress clarify the distinction between “actual knowledge” and “red flag knowledge.” Court decisions interpreting the red flag knowledge provision have often required a level of specificity regarding the types of information from which infringing activity is present as to blur the line between actual and red flag knowledge and conflate the existence of either knowledge type with receipt of a takedown notice from a rightsholder.
The combined application of the preferred options would affect all types of stakeholders differently, but is not expected to result in any disproportionate impact on a specific category of stakeholders.