Author: Christophe Geiger

Intellectual Property before the European Court of Human Rights

Christophe Geiger and Elena Izyumenko

[Christophe Geiger and Elena Izyumenko] Abstract: In the past years, the European Court of Human Rights (ECtHR, or Strasbourg Court), Europe’s principal human rights watchdog, has played an ever larger role in the resolution of intellectual property (IP) disputes. The ECtHR’s engagement in IP adjudication has already influenced national judges, who increasingly have recourse to human rights to solve cases between private parties, thus calling for closer scrutiny of the Court’s practice on this matter. The present chapter provides the first comprehensive overview of the ECtHR case law on IP for the period since the Court’s inception (in January 1959) until today (February 2018).

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Freedom of Artistic Creativity and Copyright Law: A Compatible Combination?

UC Irvine Law Review 2018, Volume 8, Issue 3, Forthcoming CEIPI Research Paper No. 2017-08 Abstract: Copyright was originally intended to serve creators as an engine of free expression, protecting them from the interference of others and from all risk of censorship. To this end, a balance was conceived between exclusive control and freedom and in order to enable future creativity, some uses were kept outside the control of the right owner through limitations to the exclusive right. However, none of the existing systems of limitations in the various jurisdictions was specifically designed to address the creative reuse of copyright protected material in the context of derivative works. On the contrary, when an author in his creative process needs to use the expression of a previous copyrighted work, he will have to get the authorization of the copyright owner of the original work. This situation can be quite cumbersome, as right owners are not always easy to trace, but most of all it can lead to a situation private censorship, as private entities or individuals have the potential to decide what can be created or not and block the dissemination of new works. It might thus be questionable how this situation can be reconciled with either the copyright’s rationale of incentivizing creativity or the obligations imposed on States by international and regionally protected human rights such as freedom of...

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Opinion of the CEIPI on the European Commission’s Proposal to Reform Copyright Limitations and Exceptions in the European Union

Christophe Geiger, Giancarlo Frosio, Oleksandr Bulayenko The European Commission’s planned copyright reform proposes to adapt EU law to the challenges emerging in the Digital Single Market (DSM).[1] In particular, new mandatory exceptions and limitations should contribute to improving the creative ecosystem in the digital environment. This CEIPI Opinion does support the plan to develop a—much needed—strategy to take copyright into the 21st century and make it functional to the DSM, especially by addressing important needs with regard to access to copyrighted works in order to boost creativity and innovation, promoting cumulative research and sharing of knowledge-based resources. CEIPI moreover fully endorses the goal of the proposal of lowering barriers to research and innovation in the EU DSM; however, in order to address these issues in a satisfying manner, this opinion strongly suggests an expansion of the reform’s scope. In particular, The introduction of mandatory exceptions and limitations is a welcome, innovative arrangement that promotes harmonization and, therefore, the DSM. Obviously, focus on facilitation of research, teaching and preservation of cultural heritage stands as a primary need for the promotion of the DSM. However, this reform should be an opportunity to consider also additional exceptions and limitations that are crucial in a knowledge-based society and to reflect on the future design of an “opening clause” to address uses that are not yet covered by existing exceptions and limitations but are...

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Copyright on the Human Rights’ Trial: Redefining the Boundaries of Exclusivity Through Freedom of Expression

Authors: Christophe Geiger and Elena Izyumenko 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. The Court, by verifying if in the given situation the interference can be justified with regard to other conflicting rights, accepts the idea that the compatibility of any copyright enforcement measure with Article 10 of the European Convention on Human Rights (ECHR) needs to be evaluated on a case-by-case basis and that no predetermined answer can be given by copyright law. Thus, it can be expected that freedom of expression might be used in the future by courts to redefine the boundaries of exclusivity. Taking this recent case law of the ECtHR as a starting point, this article examines what guidelines should be applied by the judiciary...

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The Introduction of a Neighbouring Right for Press Publisher at EU Level: The Unneeded (and Unwanted) Reform

Authors: Christophe Geiger, Oleksandr Bulayenko, and Giancarlo F. Frosio 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. Further, this article underlines the missing causal link between the proposed reform and market efficiency justifications. In contrast, existing empirical evidence shows negative externalities for smaller publishers and users at large. This evidence — together with the enclosure of the public domain that comes from the creation of new neighbouring rights and their retroactive application — might serve as a warning of the potential negative repercussions of this proposal on plurality of sources, users’ access to information — and more generally on democratization. In conclusion, this article recommends refraining from the introduction of neighbouring rights for press publisher online because they would (i) relent — rather than promote — the creation of a Digital Single...

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Opinion of the CEIPI on the European Commission’s Copyright Reform Proposal, With a Focus on the Introduction of Neighbouring Rights for Press Publishers in EU Law

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.[1] 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. The Directive Proposal—and the documents accompanying it—fail to explain how an additional layer of 28 national rights might promote the Digital Single Market. Rather, the proposal poses further challenges related to the territoriality of rights and their fragmentation. In addition, as there is already no uniform approach to exceptions or limitations to 28 national authors’ rights, 28 additional national rights for publishers will suffer the same uncertainty, making the Digital Single Market harder to reach. Granting rights to ever more actors will reduce the economic value of each right covering essentially the same economic use. While the Impact Assessment accompanying the Directive Proposal concludes that the “introduction of a related right covering digital uses of press publications is not expected to generate higher licence fees for online service providers”, it fails to assess the impact of the Directive Proposal on authors. As the “pie” does not get any bigger, the authors’ share will inevitably decrease....

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The Role of Human Rights in Copyright Enforcement Online: Elaborating a Legal Framework for Website Blocking

Authors: Christophe Geiger and Elena Izyumenko 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. This article approaches these (and other) questions from the perspective of three fundamental rights that play a major role in website blocking cases and which, according to judicial practice, need to be balanced against each other: the users’ freedom of expression, the ISPs’ freedom to conduct a business, and the copyright holders’ right to property. To this end, it analyses the recent key decisions on the matter from two major European courts – the Court of Justice of the European Union and the European Court of Human Rights – reflecting further on...

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Statutory Licenses as Enabler of Creative Uses

Max Planck Institute for Innovation & Competition Research Paper No. 15-14 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. Full paper on...

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Copyright as an Access Right, Securing Cultural Participation Through the Protection of Creators’ Interests

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. In this context, the society’s enrichment and future creativity are often portrayed in the rhetoric of the major economic players only as “a fortunate by-product of private entitlement”. This has provoked some important counter-reactions: as copyright is perceived mainly as a right to forbid, to sanction and punish, infringing copyright has sometimes evolved among younger generations to an act of protest, leading to a serious crisis of legitimacy. Even among creators, copyright is increasingly perceived as a hurdle in the creative process, as the success of so-called “open content” models clearly demonstrates. These developments urgently attest the need to rethink copyright in order to adapt its rules to its initially dual character 1) of a right to secure and organize cultural participation and access to creative works (access aspect); and 2) of a guarantee that...

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Reaction of CEIPI to the Resolution on the Implementation of Directive 2001/29/EC on the Harmonisation of Copyright in the Information Society Adopted by the EP on the 9th July 2015

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. Indeed, a more unified approach to copyright law in the EU seems crucial for the development of a truly European information society. Moreover, while taking on board a timely call for revision of some...

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European Copyright Society: Limitations and Exceptions as Key Elements of the Legal Framework for Copyright in the EU

Opinion on the Judgment of the CJEU in Case C-201/13 Deckmyn 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. The opinion welcomes this development for the following reasons: firstly, due to the importance of exceptions and limitations in facilitating creativity and securing a fair balance between the protection of and access to copyright works; secondly, because of the Court’s determination to secure a harmonized interpretation of the meaning of exceptions and limitations; thirdly, because of the Court’s adoption of an approach to the interpretation of exceptions and limitations which promotes their effectiveness and purpose; and, finally, due to the Court’s recognition of the role of fundamental rights in the copyright system: in particular, its recognition that the parodic use of works is justified by the right to freedom of expression. At the same time, the ECS recommends caution in constraining the scope of exceptions and limitations in a manner that may go beyond what might be considered necessary in a democratic society. The European Copyright Society (ECS) was founded in January 2012 with the aim of creating...

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Implementing IP Provisions in Human Rights Instruments: Towards a New Social Contract for the Protection of Intangibles

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. Several solutions are ultimately advanced which could be envisaged in the future to construct a satisfying and balanced clause for IP at constitutional level, capable of demonstrating by its ‘mere’ wording that intellectual property is intrinsically linked to the interests of society. Ch. Geiger (ed.), Research Handbook on Human Rights and Intellectual Property (Cheltenham, UK/ Northampton, MA, Edward Elgar, 2014, Forthcoming; Max Planck Institute for Innovation & Competition Research Paper No. 14-10. Click here for the full paper on SSRN....

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Challenges for the Enforcement of Copyright in the Online World: Time for a New Approach

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. Citation:  Geiger, Christophe, Challenges for the Enforcement of Copyright in the Online World: Time for a New Approach (March 7, 2014). P. Torremans (ed.), “Research Handbook on the Cross-Border Enforcement of Intellectual Property”, Cheltenham, UK / Northampton, MA, Edward Elgar, 2014, Forthcoming; Max Planck Institute for Innovation & Competition Research Paper No. 14-01. Full Paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2382603...

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European Copyright Society Response to the Public Consultation on the EC Copyright Review

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. In February 2013, the European Copyright Society issued an remarked opinion on the Svensson case (Case C-466/12) which was referred to the CJEU for a preliminary ruling from the Svea hovrätt (Sweden) on 18 October 2012. The European Copyright Society was initiated by Professor Lionel Bently, Director of the Centre of Intellectual Property and Information Law (CIPIL), University of Cambridge (United Kingdom), Professor Séverine Dusollier, Director of the Centre de recherche information, droit et société (CRIDS), University of Namur (Belgium), Professor Reto M. Hilty, Director of the Max Planck Institute for Innovation and Competition, Munich (Germany), Professor P. Bernt Hugenholtz, Director of the Institute for Information Law, University of Amsterdam (Netherlands) and Christophe Geiger, Director General and Director of the Research Department, Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI), University of Strasbourg (France), which are its founding members. Other interesting...

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The Anti-Counterfeiting Trade Agreement and Criminal Enforcement of Intellectual Property: What Consequences for the European Union?

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. Click here for the full...

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