Abstract: Courts have traditionally considered copyright to be immune to any external freedom of expression review, the tension between those rights having to be resolved through internal balancing mechanisms such as the idea/expression dichotomy or limitations and exceptions to the exclusive right. Two important rulings from the European Court of Human Rights (ECtHR) rendered in 2013 clearly challenge this premise. One is the judgment against France in the Ashby Donald case, the other an admissibility decision in the Swedish ‘‘Pirate Bay’’ application. Both rulings held that the use of a copyrighted work can be considered as an exercise of the right to freedom of expression, even if the use qualifies as an infringement and is profit-motivated.
Abstract: This article discusses the proposed introduction in EU law of neighbouring rights for press publishers for the digital uses of their publications. This proposal is included in the European Commission’s Draft Directive on copyright in the Digital Single Market of 14 September 2016, which forms an important part of the ongoing reform of copyright at EU level. This article highlights the challenges for the Digital Single Market associated with the establishment of an additional layer of 28 national rights and their related exceptions and limitations. By reference to the “pie theory”, it also shows how this proposal risks redistributing resources from creators to publishers.
Christophe Geiger, Oleksandr Bulayenko and Giancarlo Frosio
Centre for International Intellectual Property Studies, Link
Summary: Among its key features, the European Commission’s planned copyright reform proposes to introduce in EU copyright law neighbouring rights for press publishers. This proposal is (i) contrary to the objective of creating a Single Digital Market, (ii) detrimental for authors’ interests, and (iii) does not solve any systemic issues of the EU copyright system for the reasons stated below.
Abstract: In recent years, intellectual property enforcement by ordering Internet access providers to block infringing websites has been rapidly evolving in Europe. Understandable from the perspective of rightholders searching for the most efficient ways to stop infringing activities, this increasing tendency to seek for website blocking raises several interrelated legal questions. Those range from the extent to which new enforcement models should burden the freedom to conduct a business of intermediaries to how this practice affects the ability of Internet users to access information of their choice and exercise their freedom of expression in the online environment. Interestingly, the requests for blocking injunctions have also provoked counter-reactions, initiating a “breakthrough” in the European judiciary because of the recognition of user rights as enforceable rights of equal value to those of rightholders.
Abstract: In order to enable future creativity, some uses are traditionally kept outside the control of the right owner through limitations to the exclusive right. Uses covered by a limitation can lead to an obligation to pay a fair remuneration to the creator. In these cases, these “limitation-based remuneration rights” are often called “statutory licenses”. As these remunerations can provide significant revenues for creators, they constitute interesting tools for legislators in order to avoid the blocking effect of exclusivity, while at the same time ensuring that the creator can participate fairly in the creative reuse of their works. However, this option has so far been given relatively little consideration in the context of derivative works. This chapter is intended to fill that gap, exploring whether statutory licenses can offer a satisfying mechanism to enable and incentivize creative uses of copyrighted works.
Abstract: Copyright, originally conceived as a tool to protect the author and to provide incentives to create for the benefit of society, is nowadays more and more perceived as a mechanism to the advantage of “large, impersonal and unlovable corporations”. The inherent social dimension of copyright law has progressively been lost of sight by policy makers to the benefit of strictly individualistic, even egotistic conceptions. In the recent discourse on the strengthening of legal means of protection, copyright is more frequently presented as an investment-protection mechanism than a vehicle of cultural and social progress.
Christophe Geiger, Oleksandr Bulayenko, Théo Hassler, Elena Izyumenko, Franciska Schönherr, and Xavier Seuba, Centre for International Intellectual Property Studies (CEIPI) University of Strasbourg, Link
Abstract: In order to make the European Union (EU) copyright framework fit for the Internet environment and to make a single digital market a reality, it has become obvious that reform is needed. CEIPI thus highly welcomes the initiative of the European Parliament to support a revision of the copyright acquis in the EU through its Resolution on the implementation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society adopted 9th July 2015. A democratic debate on questions of immediate relevance for Europeans such as copyright law is without any doubt necessary in a modern society and strengthens the legitimacy (and thus the acceptance) of the system adopted.
While acknowledging the importance of many timely and innovative proposals voted by the Parliament, the Resolution can still be described as a missed opportunity to make a stronger statement on some essential issues of copyright law in the EU, such as its territoriality and the related consequences on cross-border access to copyright protected content.
Abstract: In this opinion, the European Copyright Society (ECS) puts on record its views on the issues raised by the Judgment of the Court of Justice of the European Union (CJEU) in Case C-201/13, Deckmyn, which departs from the doctrine of strict interpretation of exceptions and limitations in cases in which fundamental rights such as freedom of expression are involved.
Abstract: Despite the crucial importance of ensuring a just balance of interests within intellectual property law, a well ‘thought-out’ IP clause is still lacking in an overwhelming majority of human rights instruments. Building upon the results of an empirical study of about 200 national constitutions and several leading international and European treaties on human rights, this chapter examines how the constitutional framework is guiding the understanding and shape of IP law. In particular, it examines different model provisions for IP included in human rights instruments and puts them in the context of selected judicial practice, general principles of legal interpretation and ‘quasi-constitutional’ rules of IP protection.
Abstract: In order to fight mass-scale copyright infringements on the Internet, numerous legislative initiatives have recently been proposed or adopted with the aim to improve the enforcement of copyright in the online world. This article evaluates the relevance of these enforcement strategies in the context of the unauthorised uses of copyrighted works by means of peer-to-peer file sharing or streaming. The dubious efficiency of some of the solutions adopted at national level, such as the implementation of graduate-response systems or the criminalisation of end users, is questioning the systematic increase of penalties as an appropriate reaction to address the problem of the general disrespect for copyright on the Internet. It rather calls for a new approach through the cautious legalisation of certain practices, in order to ensure that the copyright system continues to fulfil its basic function: the protection of creators and the encouragement of creativity.
Earlier this week, the European Copyright Society has issued its response to the Public consultation on the review of the EU copyright rules of the European Commission. The response is available here.
The European Copyright Society (ECS) was founded in January 2012 with the aim of creating a platform for critical and independent scholarly thinking on European Copyright Law. Its members are renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest regarding the construction of European Copyright law.
Abstract: The Anti-Counterfeiting Trade Agreement (ACTA) and the secrecy of its negotiation process have given rise to widespread speculation on the content and the objectives of the Agreement, leading to the development of considerable mistrust among the general public. This article concentrates on one of the most problematic aspects of the Agreement: the provisions on criminal enforcement. It will first show why criminal enforcement of intellectual property is generally a problematic issue, especially in the European Union, and then briefly try to demonstrate why ACTA is not the right answer in this regard, since criminal enforcement provisions clearly need a differentiated approach, an approach which is not reflected in the Agreement.