A Qualitative Study on the Adoption of Copyright Assignment Agreements (CAA) and Copyright License Agreements (CLA) within Selected FOSS Projects

Open source software projects are multi-collaborative works incorporating the contributions of numerous developers who, in spite of publishing their code under a public license such as GPL, Apache or BSD, retain the copyright in their contributions. Having multiple copyright-owners can make the steering of a project difficult, if not impossible, as there is no ultimate authority able to take decisions relating to the maintenance and use of the project. This predicament can be remedied by centring the dispersed copyrights in a single authority via contributor agreements. Whether to introduce contributor agreements, and if so in which form, is a pressing question for many emerging, but also for established projects. The current paper provides an insight into the ethos of different projects and their reason for adopting or rejecting particular contributor agreements. It further examines the exact set-up of the contributor agreements used and concludes that smart drafting can blur the difference between CAAs and CLAs to a considerable extent, manoeuvring them into a legal grey area. To avoid costly litigation to test the legal enforceability of individual clauses, this paper proposes the establishment of an international committee comprised of developers, product managers and lawyers interested in finding a common terminology that may serve as a foundation for every contributor agreement

Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers

Internet connectivity providers have been ordered to block access to websites facilitating copyright infringement in various EU countries.In this paper, the proportionality of these enforcement measures is analysed. After addressing preliminary questions, the recent ECJ ruling UPC Telekabel Wien (C-314/12) and then case law from all Member States are examined from the perspective of proportionality. Finally, five criteria are submitted for proportionality analysis, and a proportionality evaluation is provided. The major observation is that the underlying goal of copyright enforcement has implications on how the scale tilts. In particular, ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is considered legitimate. On the other hand, if the goal is to decrease the impact of infringement, higher efficiency and economically quantifiable results may be required

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.

Games as Cultural Heritage: Copyright Challenges for Preserving (Orphan) Video Games in the EU

The long-term preservation of complex works such as video games comes with many challenges. Emulation, currently the most adequate preservation strategy for video games, requires several acts that are technically possible, but closely governed and restricted by copyright law and technical protection measures. Without prior authorisation from the rightsholder(s), it is therefore difficult to legally emulate these works. However, games often have several rightsholders that are in some cases near impossible to identify or locate – particularly with regard to older games. This paper therefore focuses on these so-called orphan video games and examines whether (and to what extent) they are covered by the directive on certain permitted uses of orphan works 2012/28/EU (Orphan Works Directive). As complex works with software and audiovisual components, it is difficult to classify video games in their entirety. The Orphan Works Directive, however, only covers certain categories of works. This paper therefore analyses 1) whether video games in their entirety can be considered types of works that fall under the directive, i.e. audiovisual or cinematographic works, and 2) whether the provisions of the orphan work exception are suitable for the specifics of these complex, “multimedia” works.

Enforcing Copyright Infringements Online: In Search of Balanced Private International Law Rules

Enforcement of copyright online and fighting online “piracy” is a high priority on the EU agenda. Private international law questions have recently become some of the most challenging issues in this area. Internet service providers are still uncertain how the Brussels I Regulation (Recast) provisions would apply in EU-wide copyright infringement cases and in which country they can be sued for copyright violations. Meanwhile, because of the territorial approach that still underlies EU copyright law, right holders are unable to acquire EU-wide relief for copyright infringements online. This article first discusses the recent CJEU rulings in the Pinckney and Hejduk cases and argues that the “access approach” that the Court adopted for solving jurisdiction questions could be quite reasonable if it is applied with additional legal measures at the level of substantive law, such as the targeting doctrine. Secondly, the article explores the alternatives to the currently established lex loci protectionis rule that would enable right holders to get EU-wide remedies under a single applicable law. In particular, the analysis focuses on the special applicable law rule for ubiquitous copyright infringements, as suggested by the CLIP Group, and other international proposals.

EU Copyright Law, Lobbying and Transparency of Policy-Making: The cases of sound recordings term extension and orphan works provisions

The objective of this paper is to discuss EU lobbying in the area of copyright. Legislation needs to regulate the legal position of various different stakeholders in a balanced manner. However, a number of EU copyright provisions brought into effect over recent years were highly controversial and have led to suggestions that powerful lobbying forces may have had some influence. This article investigates the effects of lobbying on copyright law-making in Europe. A specific comparative and multi-faceted analysis is provided of the legislative process for two recently adopted directives: 2011/77/EU which extends the term of protection of sound recordings and 2012/28/EU which introduces certain permitted uses of orphan works (some references are also made to the ACTA case). Firstly, a short presentation is given of the legal bases for the EU consultation process and lobbying. Next, an analysis is provided of the two cases, taking into consideration the policy-making procedures (with special focus on how the consultation process was handled), the legal solutions proposed and adopted and the various stakeholders’ claims. Lastly, it asks why some interest groups were successful and some others failed (the analysis identifies two types of factor for the effectiveness of lobbying: those resulting from stakeholders’ actions and those connected with the consultation process).

Permissibility of Non-Voluntary Collective Management of Copyright under EU Law – The Case of the French Law on Out-of-Commerce Books

The possibility of the EU member states to adapt copyright legislation to new circumstances and to address unforeseen issues is limited by the list of exceptions and restrictions of the InfoSoc Directive. In spite of this constraint, the EU copyright framework provides for a possibility of introduction of non-voluntary forms of collective rights management that can help to tackle some of the contemporary problems with remuneration and access. This article is an attempt to deepen the understanding of non-voluntary collective management and its possible use. First, it provides a detailed description of the French mechanism adopted for facilitating mass digitization and making out-of-commerce books available, which was implemented through a new form of collective management of copyright. Then, it examines the mechanism’s compatibility with the InfoSoc Directive through comparison with the extended collective licensing.

Proposals from Berlin and Paris – Intermediary Liability in European Copyright Law

Two very different proposals on copyright policy – one a privately drafted document, the other a governmental report – are published in this edition of JIPITEC. There is an interesting point of intersection between them because they both consider the difficult question of the liability of online intermediaries for users’ infringements. The first document is “The Berlin Gedankenexperiment on the Restructuring of Copyright Law and Authors Rights”. This is a wide-ranging proposal for a complete recasting of the legal system that promotes the production of, and controls the use of, creative goods. The second policy document has a more limited focus. The French High Council for Literary and Artistic Property (“CSPLA”)’s Mission to Link Directives 2000/31 and 2001/29 – Report and Proposals (“Mission Report”) aims to provide a persuasive intervention in current policy discussions at European Union level concerning the liability or, more appropriately, the non-liability, of online intermediaries for copyright infringement. In this brief introduction, I outline the scope of both proposals and reflect briefly on their recommendations.