A manifesto for an e-lending limitation in copyright

In the European Union, lending is an exclusive right for copyright and related rights, but Member States can transform public lending to a right of remuneration and even exempt some establishments from any payment. The making available of works online is not covered by the public lending right regime of the Rental and Lending Directive but is considered as an act of making available governed by the InfoSoc Directive. As a consequence, libraries are currently not allowed to digitally transmit works to their patrons as lending, but have entered into licenses with publishers to develop an offer of lending of e-books, also called e-lending, with the intermediation of dedicated platforms operated by commercial actors. Compared to physical lending, e-lending is not based on ownership of the book by libraries but on its provision by this intermediary. This paper discusses how the objective of enabling libraries to engage in e-lending should be achieved, and what is the proper dividing line between a market-based solution, as developing today, and a limitation to exclusive rights. The impact of an extension of the public lending right to e-lending should be assessed, but not based on a criterion of direct substitution of a book on loan at the library to a book bought at a retailer. By definition, libraries are substitutes to normal trade. Instead, the overall effect of lending to the commercialisation of books and other works should be verified. Particular conditions for a limitation in favour of lending are also addressed, and notably the modalities of lending (a limited duration, one simultaneous user per title, …), not to make e-lending through libraries easier and preferable to the normal acquisition of an e-book. This paper argues in favour of some and controlled extension of the public lending right to cover the lending of e-books and other digital content. For the role of libraries is essential in providing access to works and culture to readers who would or could not rely only on normal acquisition of books or other items on the market, to works that are not provided by the market, and to material for research. Libraries are a third sector providing access to works, aside the market and non-market exchanges between individuals. This role should not lose its relevance in the digital context, or it would culturally impoverish future generations of readers.

Interoperabilität von Software Art. 6 der Comperterprogramm-Richtlinie aus heutiger Sicht

This article reviews Article 6 of the Software Directive and discusses the need for a revision. Beyond clarification of the scope of the very limited provision on reverse engineering, it seems that the introduction of the clause into copyright was unfortunate. The indirect protection of ideas by prohibiting reverse engineering is foreign to the copyright concept. Permitting reverse engineering altogether would promote research and development and further other goals like ICT security. Innovation would not be retarded, which is the reason why US trade secret law permits reverse engineering based also on economic arguments. The notions of compatibility Article 6 tries to address are better dealt with by Competition Law, which was demonstrated by the Microsoft Decision of the European Court in 2007.

Why Cherry-Picking Never Leads to Harmonisation: The Case of the Limitations on Copyright under Directive 2001/29/EC

The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look at three examples of limitations that have led to legislative changes at the Member State level as express measures towards the implementation of the Information Society Directive, that is, the limitations for the benefit of libraries, for teaching and research, and for persons with a disability. These exceptions and limitations were later on also identified by the European Commission as key elements in the deployment of a digital knowledge economy. The analysis will show that the implementation of the provisions on limitations in the Information Society Directive did not, and probably cannot, yield the expected level of harmonisation across the European Union and that, as a consequence, there still exists a significant degree of uncertainty for the stakeholders regarding the extent of permissible acts with respect to copyright protected works.

Limitations: The Centerpiece of Copyright in Distress

After the exclusive rights in copyright have been consolidated in a century-long historical development, limitations and exceptions have become the main instrument to determine the exact scope of copyright. Limitations and exceptions do not merely fine-tune copyright protection. Rather, they balance the interests of authors, rightholders, competitors and end-users in a quadrupolar copyright system. Understanding this is of particular importance in the digital and networked information society, where copyrighted information is not only created and consumed, but constantly extracted, regrouped, repackaged, recombined, abstracted and interpreted. However, serious doubts exist whether the present, historically grown system of limitations adequately balances the interests involved in the information society. Both the closed list of limitations allowed under Art. 5 of the EU Information Society Directive 2001/29/EC and a narrowly interpreted three-step test contained in Arts. 13 TRIPS and 5 (5) of the Information Society Directive appear as obstacles in the way of achieving the appropriate balance needed. This brief article outlines the issues involved which were discussed at the International Conference on “Commons, Users, Service Providers – Internet (Self-) Regulation and Copyright” which took place in Hannover, Germany, on 17/18 March 2010 on the occasion of the launch of JIPITEC.

The International Three-Step Test. A Model Provision for EC Fair Use Legislation

The three-step test is central to the regulation of copyright limitations at the international level. Delineating the room for exemptions with abstract criteria, the three-step test is by far the most important and comprehensive basis for the introduction of national use privileges. It is an essential, flexible element in the international limitation infrastructure that allows national law makers to satisfy domestic social, cultural, and economic needs. Given the universal field of application that follows from the test’s open-ended wording, the provision creates much more breathing space than the more specific exceptions recognized in international copyright law. EC copyright legislation, however, fails to take advantage of the flexibility inherent in the three-step test. Instead of using the international provision as a means to open up the closed EC catalogue of permissible exceptions, offer sufficient breathing space for social, cultural, and economic needs, and enable EC copyright law to keep pace with the rapid development of the Internet, the Copyright Directive 2001/29/EC encourages the application of the three-step test to further restrict statutory exceptions that are often defined narrowly in national legislation anyway. In the current online environment, however, enhanced flexibility in the field of copyright limitations is indispensable. From a social and cultural perspective, the web 2.0 promotes and enhances freedom of expression and information with its advanced search engine services, interactive platforms, and various forms of user-generated content. From an economic perspective, it creates a parallel universe of traditional content providers relying on copyright protection, and emerging Internet industries whose further development depends on robust copyright limita- tions. In particular, the newcomers in the online market – social networking sites, video forums, and virtual worlds – promise a remarkable potential for economic growth that has already attracted the attention of the OECD. Against this background, the time is ripe to debate the introduction of an EC fair use doctrine on the basis of the three-step test. Otherwise, EC copyright law is likely to frustrate important opportunities for cultural, social, and economic development. To lay groundwork for the debate, the differences between the continental European and the Anglo-American approach to copyright limitations (section 1), and the specific merits of these two distinct approaches (section 2), will be discussed first. An analysis of current problems that have arisen under the present dysfunctional EC system (section 3) will then serve as a starting point for proposing an EC fair use doctrine based on the three-step test (section 4). Drawing conclusions, the international dimension of this fair use proposal will be considered (section 5).

Unsticking the centre-piece – the liberation of European copyright law?

Following European legislative initiatives in the field of copyright limitations and exceptions, policy flexibilities formerly available to mem- ber states has been greatly diminished. The law in this area is increasingly incapable of accommodating any expansion in the scope of freely permitted acts, even where such expansion may be an appropriate response to changes in social and technological conditions. In this article, the causes of this problem are briefly canvassed and a number of potential solutions are noted. It is suggested that one such solution – the adoption of an open, factor-based model similar to s 107 of the United States’ Copyright Act – has not received the serious attention it deserves. The fair use paradigm has generally been dismissed as excessively unpredictable, contrary to international law and/or culturally alien. Drawing on recent fair use scholarship, it is argued here that these disadvantages are over-stated and that the potential for the development of a European fair use model merits investigation.

Richtungsweisend oder eine nur begrenzt wahrgenommene Chance? Der Copyright-Code des Wittem-Projekts

Der „European copyright code“ des Wittem-Projekts von 4/2010 ist pragmatisch, konstruktiv-konservativ ausgefallen. Traditionell das Werk- und Autorenverständnis. Schrankenregelungen werden über einen hybriden Ansatz offen gehalten. Bildung und Wissenschaft werden nicht gerade verwöhnt. Die Wittem-Gruppe hat sich nicht in den „Treibsand visionärer Modelle“ begeben wollen. Ein guter Text, aber dann doch nicht wirklich wegweisend für den Umgang mit Wissen und Information in elektronischen Räumen, am ehesten noch durch den Vorschlag einer Schrankenbestimmung zur Begünstigung des wirtschaftlichen Wettbewerbs.

The Law Applicable to Online Copyright Infringements int ALI and CLIP Proposals: A Rebalance of Interest Needed?

The article discusses the problems of applicable law to copyright infringements online. It firstly identifies the main problems related to the well established territoriality principle and the lex loci protectionis rules. Then; the discussion focuses on the "ubiquitous infringement" rule recently proposed by the American Law Institute (ALI) and the European Max Planck Group for Conflicts of Law and Intellectual Propoperty (CLIP). The author strongly welcomes a compromise between the territoriality and universality approaches suggested in respect of ubiquitous infringement cases. At the same time; the paper draws the attention that the interests of "good faith" online service providers (such as legal certainty and foreseeability) have been until now underestimated and invites to take these interests into account when merging the projects into a common international proposal.

Liability for Copyright Infringements on the Internet: Host Providers (Content Providers) - The Geman Approach

Copyright infringements on the Internet affect all types of media which can be used online: films, computer games, audio books, music, software, etc. For example, according to German studies, 90% of all copyright violations affecting film works take place on the Internet. This storage space is made available to such infringers, as well as to others whose intentions are legal, by hosting providers. To what extent do hosting providers have a duty of care for their contribution to the copyright infringements of third parties, i.e. their users? What duties of care can be reasonably expected of hosting providers to prevent such infringements? These questions have been heavily debated in Germany, and German courts have developed extensive case law. This article seeks to examine these questions by assessing German jurisprudence against its EU law background.

Stig Strömholm, Copyright and the Conflict of Laws: A Comparative Survey

Heymanns Verlag 2010, 88 p., ISBN 978-3-452-27300-0

How to Build an Orphanage, and Why

Currently, lawmakers on both sides of the Atlantic are struggling with the problem of orphan works. In the impact assessment of its proposal for a directive of the European Parliament and of the Council on certain permitted uses of orphan works, the Eurpean Commission mentions six possible ways of dealing with the problem. Three of the six (a statutory exception to copyright; extended collective licensing; an orphan-specific license granted by collecting societies) have each had their heyday during the past few years. This article examines how and why these changes in popularity occurred. In addition, it explains why a limitation on remedies would be the most adequate solution for the problem in Europe.

Diverse Readings of the Court of Justice Judgments on Copyright Work

EU law’s impact on the meaning of the copyright work for a long time seemed limited to software and databases. But recent judgments of the CJEU (Infopaq, BSA, FootballAssociation [Murphy], Painer) suggest we have entered an era of harmonization of copyright subject-matter, after decades of focus on the scope of exclusive rights and their duration. Unlike before however, it is the Court and not the legislator that takes centre stage in shaping pivotal concepts. This article reviews the different readings and criticisms the recent case law on copyright works evokes in legal doctrine across the EU. It puts them in the wider perspective of the on-goingdevelopment towards uniform law and the role of the preliminary reference procedure in that process.

Copyright, Interfaces, and a Possible Atlantic Divide

Recent copyright cases on both sides of the Atlantic focused on important interoperability issues. While the decision by the Court of Justice of the European Union in SAS Institute, Inc.v. World Programming Ltd. assessed data formats under the EU Software Directive, the ruling by the Northern District of California Court in Oracle America, Inc. v. Google Inc. dealt with application programming interfaces. The European decision is rightly celebrated as a further important step in the promotion of interoperability in the EU. This article argues that, despite appreciable signs of convergence across the Atlantic, the assessment of application programming interfaces under EU law could still turn out to be quite different, and arguably much less pro-interoperability, than under U.S. law.