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.

The Active Subjects of Welfare Reform: a Street-Level Comparison of Employment Services in Australia and Denmark

This paper explores the similarities and differences between Denmark and Australia in adopting welfare reform activation measures in the field of employment services. In Australia and Denmark the discourse of welfare reform centres the 'activation' of citizens through 'mutual obligation' type requirements. Through various forms of case management, unemployed individuals are encouraged to act upon themselves in creating the right set of ethical dispositions congruent with 'active citizenship'. At the same time any resistance to heightened conditionality on the part of the unemployed person is dealt with through a range of coercive and disciplinary techniques. A comparative case study between these two countries allows us to consider how similar ideas, discourse and principles are shaping policy implementation in countries that have very different welfare state trajectories and institutional arrangements for the delivery of social welfare generally and employment services specifically. And in research terms, a comparison between a Nordic welfare state and an Anglo-Saxon welfare state provides an opportunity to critically examine the utility of 'welfare regime' type analyses and the neo-liberal convergence thesis in comparative welfare research. On the basis of empirical analysis, the article concludes that a single focus on abstract typologies or political ideologies is not very helpful in getting the measure of welfare reform (or any other major policy development for that matter). At the 'street-level' of policy practice there is considerably more ambiguity, incoherence and contradiction than is suggested by linear accounts of welfare reform.

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.

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

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.

Spanish Supreme Court Rules in Favour of Google Search Engine... and a Flexible Reading of Copyright Statutes?

On 3 April 2012, the Spanish Supreme Court issued a major ruling in favour of the Google search engine, including its ‘cache copy’ service: Sentencia n.172/2012, of 3 April 2012, Supreme Court, Civil Chamber.* The importance of this ruling lies not so much in the circumstances of the case (the Supreme Court was clearly disgusted by the claimant’s ‘maximalist’ petitum to shut down the whole operation of the search engine), but rather on the court going beyond the text of the Copyright Act into the general principles of the law and case law, and especially on the reading of the three-step test (in Art. 40bis TRLPI) in a positive sense so as to include all these principles. After accepting that none of the limitations listed in the Spanish Copyright statute (TRLPI) exempted the unauthorized use of fragments of the contents of a personal website through the Google search engine and cache copy service, the Supreme Court concluded against infringement, based on the grounds that the three-step test (in Art. 40bis TRLPI) is to be read not only in a negative manner but also in a positive sense so as to take into account that intellectual property – as any other kind of property – is limited in nature and must endure any ius usus inocui (harmless uses by third parties) and must abide to the general principles of the law, such as good faith and prohibition of an abusive exercise of rights (Art. 7 Spanish Civil Code).The ruling is a major success in favour of a flexible interpretation and application of the copyright statutes, especially in the scenarios raised by new technologies and market agents, and in favour of using the three-step test as a key tool to allow for it.