Legal & Government Affairs Update Issue 6 - 2018
French Tribunal declares Twitter's copyright licence clause invalid
The Tribunal de Grande Instance de Paris has issued a damning verdict after carrying out an extensive review of the validity of Twitter's terms and conditions. The Tribunal declared many of the clauses found in the terms and conditions invalid, including one intended to grant Twitter a licence to use all user-generated copyrighted content uploaded to its platform.
The legal challenge to Twitter's terms and conditions was brought as a collective action on behalf of all Twitter users by the French Consumers’ Association ‘Union Fédérale des Consommateurs - QUE CHOISIR’ (UFC). In bringing its claim the UFC cited the collective interest of Twitter users in having the validity of the terms and conditions challenged and reviewed as all Twitter users must sign up to them when creating an account.
Twitter users are consumers
The action depended on the French Consumer Law Code (FCLC) applying to Twitter users. UFC could only bring collective action on users' behalf if they met the definition of "consumers" under the FCLC. Twitter argued its users could not be consumers because the law requires a person to pay for a product or service to be a consumer and its platform is free to use.
The Tribunal found in favour of UFC on this point, ruling that Twitter's users are consumers and that consumer law applies to its terms and conditions. Although the service is free to users in monetary terms, the Tribunal found that they paid for the platform by consenting to their personal data being used by Twitter and its partners. This decision illustrates how European courts are increasingly willing to treat handing over personal data as a form of payment.
Copyright clause invalid
The Tribunal's decision was to declare invalid a clause granting Twitter a licence to use all user-generated content uploaded to the platform. The terms of the licence are non-exclusive (i.e. the user who uploaded to content could still use and licence it themselves), but it still allowed Twitter to use the content world-wide for free and granted it the right to sub-licence the content to its commercial partners.
The UFC challenged this clause on two grounds. First, they argued the opening sentence of the clause gave a misleading impression of the licence. The equivalent of this sentence in the English terms and conditions reads as follows:
"You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content)."
The second ground of challenge relied on the French Intellectual Property Code (FIPC) which notably does not distinguish between licences and assignments (which might explain the Tribunal's ruling).
The FIPC contains a prohibition on assignment and licencing of future works and has strict requirements for licencing intellectual property rights. Any licence must specifically state the right being transferred and the scope and duration of any use to be valid. The Tribunal therefore declared the clause in breach of the FIPC due to its lack of detail and clause assigning future works.
What's next for Twitter?
At the very least this ruling will require Twitter to rethink its terms and conditions in France. Being unable to rely on a broad copyright licence could result in limits to the platform. Features such as "embedding" and hosting Tweets on other websites may not be permitted without a licence from the user who originally posted it. The ruling has the potential to force Twitter to completely rethink how it obtains consent to use user uploaded content.
Legislation & Case Law Update
UK Government publishes draft copyright legislation to amend laws following Brexit
On 26 October 2018, the UK Government published draft legislation outlining the UK's proposals to amend current intellectual property legislation and either unilaterally keep or remove certain cross-border EU rights.
A technical notice setting out the likely effects of a no-deal Brexit on copyright was published with the draft legislation. While both the UK and EU negotiating teams are committed to avoiding a no-deal scenario it is becoming increasingly difficult to rule out.
The impact of either a deal and no-deal scenario will be significant and some of the major areas covered by the draft legislation and accompanying guidance are outlined below.
The UK and EU are part of existing treaties outside of the European Union framework which will continue unaffected post-Brexit. This means reciprocal copyright protection will remain in place even in a no-deal scenario.
EU Portability Regulation
Currently consumers across the EU enjoy the right to access digital content services on the same basis they do in their home country when in another Member State. This will be repealed from UK law on Brexit meaning that UK visitors to the EU may be unable to freely access the same digital services (and vice versa). A no-deal Brexit will likely produce the same outcome.
EU copyright clearance for satellite broadcasters
Currently satellite broadcasters broadcasting copyrighted content in the EU only need permission from the copyright holder in the Member State where they broadcast from to broadcast to the whole of the EU. This is known as the "country-of-origin" principle.
If the UK fails to secure a Brexit deal the country-of-origin principle will no longer apply, likely meaning UK broadcasters will have to get permission from the copyright holder in each Member State they broadcast to.
The UK intends to continue to apply the country-of-origin principle after Brexit so EU broadcasters won’t need further permission to broadcast into the UK.
Collective rights management
Collective Management Organisations (CMOs) are organisations that act on behalf of copyright holders to sell licences across the EU. CMOs that offer multi-territorial licensing of online rights of musical works in the European Economic Area (EEA) must represent the catalogues of EEA Collective Management Organisations that do not offer cross-border licences if requested. This essentially gives national CMOs access to an EEA wide network for licencing their catalogue.
In the event of a no-deal Brexit, the UK will maintain this obligation for UK CMOs but will not be able to require European CMOs to provide multi-territorial licensing across Europe for UK CMOs.
The orphan works exemption allows cultural heritage institutions to digitise orphan works and publish them online across the EU. This will no longer apply to the UK in a no-deal scenario and works placed online by UK institutions may be infringing copyright and will have to be removed.
Readers wishing to find out more about the UK's plans and guidance can access the draft legislation and guidance note here:
Technical notice on the implications of a no-deal Brexit on copyright
European Commission launches Consultation on Connected and Automated Mobility
On 24 October 2018, the European Commission launched a public consultation on how to build trust in Connected and Automated Mobility (CAM) services. CAM services cover a wide range of technologies related to autonomous or driverless vehicles, such as monitoring the environment around the vehicle, communicating with other vehicles or controlling the vehicle itself.
The consultation comes as part of the Commission's "Europe on the Move" strategy to modernise Europe's mobility and transport. Responses will inform a new policy recommendation to be adopted in late 2018/early 2019, as announced in the Commission's recent Communication on CAM (accessible using the link below).
The consultation is looking for responses from stakeholders (such as car manufacturers, end-users service providers and public authorities) as well as the general public in three key areas:
- cybersecurity threats and trust issues;
- data governance aspects (e.g. governance models; principles for car data sharing), privacy and data protection needs; and
- different aspects of technology needs for 5G large scale testing or pre-deployment.
The European Commission appears keen to support the development of technologies and infrastructure around CAM services. The aim of the consultation "is to ensure that EU legal and policy frameworks are ready to support the deployment of safe connected and automated mobility".
Readers wishing to respond to the consultation can access it here: