Descriptions of the available positions are reproduced below, with details for applying at the bottom of the page:

Senior IPilogue Editors

Senior IPilogue Editors review contributors’ content before it is approved by the Managing Editor and posted by the Content Manager on the website.

Benefits:

• Profile on our website
• Byline with photo on the articles that you contribute
• Access to forum where you can share ideas with IPilogue Contributors
• Name included on the website’s main menu with a page dedicated to your contributions

Responsibilities:

• Revise, edit, and proofread content from IPilogue Writers and Guest Writers to ensure both a neutral perspective and high-quality writing
• Content will be divided between Senior Editors
• Contribute a minimum of 1 article per month
• Keep track of content reviewed and update Managing Editor and Content Manager about progress
• Liaise with Writers about clarifications and corrections needed for articles

Qualifications:

• Exemplary revising, editing, and proofreading skills
• Strong writing, research, and critical thinking skills
• Strong organization and communication skills, including providing regular updates
• Ability to meet deadlines and turnaround work quickly
• Interest in learning about IP law and Technology issues
• Respect/openness for differing opinions and evidence-based issue analysis
• Preference will be given to:
  • Osgoode JD or LL.M students
  • Writers who have actively contributed to the IPilogue in the past

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IPilogue Writers

IPilogue Writers will be in charge of contributing timely articles related to IP law, technology, and related legal issues to the blog.

Benefits:

• Profile on our website
• Byline with photo on the articles that you contribute
• Access to forum where you can share ideas with other Contributors
• Name included on the website’s main menu with a link to your articles

Responsibilities:

• Contribute at least 1 article every 2 weeks (for a minimum of 8 articles over the summer); Writers may contribute more articles earlier in the summer to be spaced out over the term
• Keep track of articles written

Qualifications:

• Exemplary writing, research, and analysis skills
• Interest in learning about IP law and technology issues
• Respect/openness for differing opinions and evidence-based issue analysis
• Preference will be given to:
  • Osgoode JD or LL.M students
  • Writers who have actively contributed to the IPilogue in the past

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Application Details

Please submit the following documents to iposgoode@osgoode.yorku.ca:

• Cover letter (outline your interest in IP law, as well as your relevant writing/editing experience)
• ��é���ܳ�é
• Updated Transcript (unofficial is acceptable)
• Writing Sample: a 750 word (max) blog article about an IP issue

All positions are part-time and voluntary, running from May-August 2021 with the possibility of continuing during the 2021/2022 academic year.

If you are applying for a Senior IPilogue Editor��position, please address whether you would be interested in an IPilogue Writer position if you are not hired as a Senior IPilogue Editor. If your application is chosen for further consideration, you will also be required to complete a short editing exercise after you apply.

Please don't hesitate to contact us if you have any further questions. We thank all applicants for their interest. We will only contact those selected for an interview.

The post IPilogue Summer 2021 Team - DEADLINE EXTENDED! appeared first on IPOsgoode.

Academics from all over Europe give a final warning against the ill-conceived plans for the introduction of a new intellectual property right in news. Read the full letter here in��, or below.

Statement from EU Academics on Proposed Press Publishers’ Right

We, the����169 scholars [of whom 100 are full professors] working in the fields of intellectual property, internet law, human rights law and journalism studies at universities all over Europe write to oppose the proposed press publishers’ right.

Article 11 of the proposal for a Directive on Copyright in the Digital Single Market, as it currently�� following negotiations in the EU Council and Parliament, is a bad piece of legislation.

��Why?

• The proposal would likely impede the free flow of information that is of vital importance to democracy. This is because it would create��very broad rights of ownership in news��and other information. These rights would be territorial ­­– there would be one for each Member State. The rights would be owned by established institutional producers of news. And in each Member State, the new right would sit on top of all the other property rights that such publishers of news already enjoy: copyrights, database rights, broadcast rights and other related rights.
• This proliferation of different rights for established players would make it more expensive for other people to use news content.��Transaction costs��would be greatly increased, as permissions would need to be sought for virtually any use. Even using the smallest part of a press publication (except perhaps for strictly private use) would mean payment would be due to an institutional news publisher.
• That means, the proposal would be��likely to harm journalists, photographers, citizen journalists and many other non-institutional creators and producers of news, especially the growing number of freelancers.
• The people most likely to benefit would be the big established news institutions. If they should benefit, this is likely to��exacerbate existing power asymmetries in media markets��that already suffer from worrying levels of concentration in many Member States.
  That said, it is not clear that even these big news institutions would benefit. Similar rights introduced in Germany and Spain were not effective.
• The proposed right would provide no protection��against ‘fake news’.
• There is��no sound economic case��for the introduction of such a right. An additional intellectual property right would not change the fundamental problems that news institutions face. They would still have to compete with many other actors for consumer attention, advertisers and hence revenue.

Problems with the Initial EC Proposal

The academic community is virtually unanimous in its opposition to the European Commission’s proposal for a press publishers right. We commend to you the previous critical interventions from Bently��et al, Danbury, the European Copyright Society, Geiger��et al, the Max Planck Institute, Peukert, van Eechoud, and the Study conducted by Bently, Kretschmer��et al��for the JURI Committee in September 2017.

We agree with the supporters of this right about one thing:��journalism matters, and quality journalism matters even more.��As public watchdog and forum for public debate, the traditional print press plays a vital role in democratic societies, but so do newer online media. All actors in the media ecosystem enjoy freedom of expression, as guaranteed under the European Convention on Human Rights and the Charter of Fundamental Rights of the EU. ��This proposal will do nothing to help journalism, but seriously risks doing disproportionate harm to media creators, to smaller publishers, to SMEs seeking to innovate with online media services, to citizens and to society at large. Inventing new rights is not the solution.

In order to appreciate why the balance is so clearly against this proposal, it is important to understand that��press publishers already have very significant rights in their publications. They own enforceable rights in much of the material in a publication by virtue of assigned copyright (or exclusive licences), through national rules on employer ownership or collective works, and through the EU wide��sui generis��right in databases (a term broad enough to cover all newspapers). This is already a formidable arsenal. Even without the introduction of the proposed right, it is unlawful (and when done knowingly and with a view to profit, often criminal) for third parties without licence (or a defence) to reproduce or make available copyright-protected material. The reproduction or making available of small parts of such material may also be unlawful, where those parts are themselves creative. The EU’s��sui generis��right in databases not only gives investors in collections of material the right to prevent wholesale copying, but also to prevent the systematic extraction of insubstantial parts.

While press publishers are very well protected already, the Commission did identify particular problems for German press publishers in relying upon authors’ rights in articles and photographs. As a result of German rules and procedure, it is administratively cumbersome and time-consuming for press publishers to rely on such rights. Documentation is required from authors in respect of the rights in each and every item in a publication. However, a German procedural problem deserves a German solution, not one at a European Union level. That is exactly what has occurred with the one year��Leistungsschutzrecht��introduced in Germany. There is no need for the other 27 Member States to swallow the German medicine, the efficacy of which is so far wholly unproven.

The proposed right would not improve the economic position of press publishers elsewhere. There is no basis for the suggestion that an “EU wide right” (in fact, separate rights for each MS) would improve the bargaining position of press publishers vis- á-vis platforms: they already have authors’ rights and the EU’s��sui generis��right in databases. If it has any effect, the recognition of a press publishers right would strengthen their bargaining position with respect to authors and creators, a relationship which is hardly one of economic equivalence as it stands. However, such a right may well exacerbate existing media concentration problems, not least because media outlets would themselves have to seek permission from one another for the use of publications (and parts of publications), thus placing SMEs at a bargaining disadvantage.

There is also no basis for thinking this proposal will tackle “fake news”: indeed, the opposite seems likely. If certain users of platforms such as Twitter are prohibited from circulating the links posted by subscribers to online, publicly accessible, quality news, the chances are that such users will circulate information derived from other sources. The creation of rights so as to restrict further the circulation of quality news would simply play into the hands of producers of “fake news”. This will not, as Mr Voss’s amendment to recital 32 implies “guarantee the availability of [re]liable information” so much as guarantee the dominance of fake news.

In contrast, one thing is clear: the proposed right will be harmful. Adding yet another layer of protection will create uncertainty, both as to coverage and as to scope. The proposed right is not subject to a requirement of investment (by contrast with the existing protection or databases) or an originality threshold (as applies to copyright). As a consequence, the proposed protection would extend to virtually any use, even of the smallest part of a news item or other content. It has been suggested that the right will prevent the re-use of snippets from, and hyperlinks[1]��to, publicly available websites. If these claims turn out to be true, the new right will also harm freedom of expression and freedom of art, and impede innovation. Even if they turn out to be unfounded, the duplication of protection will create congestion and make clearances more complicated. These harms are further exacerbated by the prospect that the new right would last for a full twenty years, that is, long after the publication has any value as ‘news.’

Rapporteur Voss’s Proposed Amendments Will Make Matters Even Worse

As the legislative process reaches a crucial stage, various amendments have been tabled that make the proposed right even more harmful. In particular, the proposals of the JURI rapporteur, Axel Voss, are positively dangerous. These would:

• Extend the right to “news agencies”;
• Extend the rights conferred beyond reproduction and making available to encompass rental, lending and other forms of distribution to the public (Articles 3 and 9 of Directive 2006/115/EEC);
• Create an unwaivable right for the benefit of press publishers to fair and equitable remuneration as a result of all uses of their publications – even licensed ones.

If it had not come from such an influential source, we would not take these three suggestions seriously.

The first proposal is fundamentally misconceived, because press agencies do not produce press publications (the subject of the rights recognised in Article 11(1)). If the effect of the proposal is to give rights in any item included within a press publication to both press publishers and news agencies, the result will be yet another layer of licensing. For example, even if a press publisher were to permit re-use of a publication, any content within the publication deriving from a news agency would need a distinct licence.

The second proposed change, which extends the press publishers’ rights to cover public lending, rental and distribution to the public, would seem to be designed to capture for press publishers a share of funds available for ‘e-lending’ by public libraries (following the��VOB��decision of the CJEU). This extension would either require the allocated funds to be increased to remunerate press publishers, or would inevitably leave authors and book publishers with a smaller slice of the cake.

The third Voss amendment would give press publishers unwaivable rights that European Union law does not even recognise for individual authors, photographers or journalists (Indeed, Article 15 of the proposed Directive would not create anything close to this, only allowing authors to claim “appropriate” remuneration where their contractually-agreed remuneration was “disproportionately low”). It is absurd to suppose that press institutions are less able to look after their own bargaining interests than individual authors. If press publishers license their rights cheaply, it is not the legislature’s task to save them from their own bargains. Indeed, it may well be in press publishers’ best interests to license their rights for nothing, relying on other business models to profit from their investments. It is not for the EU legislature to dictate particular business models to economic entities. Indeed, the Spanish precursor of Mr Voss’s initiative attracted widespread criticism on this basis.

However, Mr Voss does propose two useful amendments. First, the suggestion that the right “shall not prevent legitimate private and non-commercial use of press publications by individual users” is welcome because it is the first recognition that,��if there is to be a new EU right, there is no reason why exceptions to that right should not also be mandatory. That said, like his other amendments, the proposal is flawed. In particular, the addition of the term “legitimate” to “private and non-commercial” leaves users with no certainty as to where they stand. Moreover, there is no sense as to how this “exception” relates to the optional private copying exceptions in Article 5(2) of Directive 2001/29. Second, Mr Voss’s proposal��that journalists should receive a share of any remuneration raised��is consistent with the goals of article 15 of the proposed Directive, though it will be virtually impossible in practice to identify (i) whether remuneration results from rights in the content (for which the author has already received contractual remuneration) or from the rights in the press publication itself, and (ii) the “appropriate share” of any additional revenue.

Conclusion

We call on all MEPs to oppose the Commission proposal, and with yet more determination, Mr Voss’s amendments. It is time to reject, once and for all, this misguided legislative reform.

[1]��Of note, the usefulness of a ‘naked’ link (mere URL) on the web, or in other applications like ftp, is very limited as it offers the reader little useful information on the resource to which the link directs. Hence, it is customary to use link descriptors, snippets or thumbnails to assist the user in determining whether the resource linked to is worth consulting. For example, without some additional information a user will not know that <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0593> directs to the EC proposal on Copyright in the Digital Single Market,�� COM/2016/0593 final.

Professor Marco Ricolfi
Chair of Intellectual Property, Turin Law School, Italy

Professor Raquel Xalabarder
Chair on Intellectual Property, Universitat Oberta de Catalunya, Barcelona, Spain.

Professor Mireille van Eechoud
Professor of Information Law, University of Amsterdam, The Netherlands

The full list of signatories to this Statement is available .

The post Academics Against Press Publishers’ Right: 169 European Academics Warn Against It appeared first on IPOsgoode.

On the 20^th of March this year, the United States District Court for the Southern District of New 91��ɫ, in the person of Judge Denise Cote, emitted a ruling fated to prompt lively debate and marked reactions. A closer look at the analysis conducted by the Judge will provide further insight into the reasons determining this outcome, which was largely focused on issues of law as the factual ground was almost totally undisputed.

The ruling concerned copyright law and, more specifically, the application of the doctrine of Fair Use, according to which certain uses of copyrighted work for certain purposes such as news reporting or criticism do not constitute an infringement of copyright, as clearly stated by §107 of the Copyright Act. As is well known, in order to fall within the scope of Fair Use, a given use of a copyrighted work must be assessed by four criteria ��laid out in §107 of the US Copyright Act.

The plaintiff, Associated Press, which has been an important news cooperative operative in the United States since 1846, filed a motion for summary judgment claiming infringement of copyright against Meltwater US1 Inc., an online service company founded in Norway in 2001.

The latter, by means of its “Meltwater News” service, has been providing its subscribers with weekly reports containing excerpts of news articles, among which some taken verbatim from AP’s copyrighted articles.

Meltwater’s main defense consisted essentially in alleging that its activities were the same as the usual transformative use made by search engines, hence it accordingly stressed that they were to be considered as Fair Use. In this respect the Judge established that the defendant had failed to provide sufficient evidence that the activity it had been engaging in could be equated with that conducted by any known search engine, especially on the grounds of the “click-through” test, and thus it could not be included in what the Judge called “breathing space”, making reference to Fair Use.

In the Judge’s opinion, an accurate assessment of the four factors constituting Fair Use in light of the purpose of Copyright Law weighed heavily against Meltwater and thus the defendant was to be considered culpable of copyright infringement.

With specific regard to the first factor (Purpose and Character of the Use), Meltwater’s conduct was referred to as “free-riding”, clearly aimed at supplanting the service that AP and its licensees offer the public. The Court found no element in favor of a finding of transformative use as Meltwater had constantly engaged in verbatim reporting of key words and excerpts surrounding them, from AP.

Moreover the Judge considered the Meltwater News click through rate as not comparable with that of other search engines. More specifically, it clearly emerged from undisputed evidence that Meltwater subscribers very rarely accessed third-party websites (i.e. the original source of the information), thus making the argument by which the service in dispute could be equated with that offered by a search engine quite difficult to sustain. In fact, the very low click through rate only seemed to strengthen the Judge’s conviction that Meltwater was acting as a substitute service for AP or its licensees rather than encouraging its subscribers to access original articles.

Moreover, in the context of a comparison between Meltwater News and Google News Alerts, the Judge granted AP’s argument that Google’s excerpts do not usually include the lede and are also considerably shorter. This appeared to be a strong factor in the Judge’s final decision, especially in consideration of the fact that Meltwater failed to provide any sufficient element to demonstrate that its service could be equated with that of a search engine.

The conclusion concerning the first element of Fair Use made by the Court, whilst rejecting further arguments offered by Meltwater in relation to previous cases such as Perfect 10, Inc. v. Amazon.com [1] and Kelly v. Arriba Soft Corp [2], appears to be as follows: search engines usually engage in transformative uses of copyrighted works, however, since Meltwater failed to provide sufficient evidence that its use is similar to that of a search engine, since it is not transformative, its activity cannot fall under the scope of Fair Use. The first factor thus weighed strongly against Meltwater.

Such a finding is of great importance as it draws a clear line between what can be considered a transformative use and what cannot. The interpretation of the role of the lede and of the composition of the articles also played an important role in considering Meltwater’s use to be non-transformative. Although reporting of facts is not copyrightable, the way news is reported “may display originality” and therefore may be subject to protection under Copyright Law.

The Judge also made a short digression on the requisites for a finding of fair use in relation to the nature of the copyrighted work, recalling the necessity for a clear difference in treatment for fictional and factual copyrighted works and also concerning their published or unpublished status. Accordingly, this element was considered to be neutral as AP deals with news articles, which are much more subject to application of Fair Use than works of fiction.

It was in relation to the factor concerning the amount and substantiality of the copying that Meltwater’s defense strategy appeared to be totally deficient. In taking a closer look at the qualitative aspect of this element, it is important to highlight the conflicting interpretation of the role of the lede of the articles. According to AP, in fact it “is meant to convey the heart of the story”, with its crafting requiring a high degree of journalistic skill. Conversely, Meltwater News service, which, according to a Meltwater employee, was aimed at saving client time “so you don’t have to read the full article”, harnessed the lede as a teaser and not as a summary of the news.

From a merely quantitative point of view, although the court admitted that “no bright-line rule exists with respect to how much copying is too much”, recalling the Supreme Court’s outcome in Campbell v. Acuff-Rose sufficed to consider the copied portions of the articles excessive.

Not only did the claims raised by AP result in being highly effective for their purpose, but Meltwater lacked appeal to the court, with all its arguments being rejected, particularly that stressing its equivalence to a search engine.

Lastly, there are the Court’s consideration of the effect of Meltwater News activities on AP’s market contained in the introduction to the final assessment on Fair Use. The impact on potential licensing revenues was found essential for the simple reason that the Court qualified Meltwater’s activity as non-transformative, thus acting on a market where the copyright holder was a player. Morever, Meltwater is considered to be not only a direct competitor of AP as its use of the work substitutes the latter’s products, but it also does not pay any licensing fee, thus obtaining an unfair commercial advantage.

The Court finally stated that Meltwater News, far from possibly being considered a search engine, is nothing but a news clipping service, gaining an unfair commercial advantage, whose business model is strictly based on non-transformative, systematic copying of other’s copyrighted expressions.

Meltwater also pointed out without any positive result that, similarly to the famous cases Field v. Google, Inc. [4] and Parker v. Yahoo! Inc. [5], it had an implied license to report the excerpts. Unfortunately for Meltwater, the factual background of the mentioned cases, unlike that of the case at issue, unequivocally demonstrated that the copyright owners were aware of the no-archive meta-tag and of the availability of the search engines to remove the content upon request.

It clearly appears that although Meltwater qualified itself as a search engine, its failure to demonstrate this and the use of its News clipping service by subscribers strongly persuaded the court that its main function was not that of a location tool. The verbatim copying of the lede and of considerable portions of articles, alongside a very low click-through rate strengthened such an interpretation, and also indicated the direction of possible future developments in the judicial interpretation of Fair Use.

The link to the ruling:

Notes:

[1] 508 F.3d 1146 (9th Cir. 2007)

[2] 336 F.3d 811(CA9 2003)

[3] 510 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994)

[4] 412 F.Supp. 2d 1106 (D. Nev. 2006)

[5] 2008 WL 4410095 (E.D. Pa. Sept. 25, 2008)

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