Proposed WIPO Treaty for Improved Access for Blind, Visually Impaired, and Other Reading Disabled Persons

Although the world’s attention has on several occasions been turned to the plight of the vision impaired, there has been no international copyright instrument that specifically provides for limitations or exceptions to copyright for their benefit. Such an instrument becomes imperative amidst the grow- ing number of persons in this category and the need to facilitate their access to information that will give them the opportunity to participate in public affairs. Brazil, Ecuador, Paraguay, and Mexico (Brazilian group) seek to fill this gap by submitting to the WIPO’s Standing Committee on Copyright and Related Rights a draft treaty for Improved Access for Blind, Visually Impaired and Other Reading Disabled Persons. How- ever, this proposal has generated a lot of reactions, resulting in three other such proposals being submit- ted to WIPO for deliberations. Copyright owners have also opposed the treaty. Amidst these reactions, this work seeks to analyze the compatibility of the Brazilian group’s proposal with the TRIPS three-step test, which has enjoyed a great deal of international recognition since its inclusion in the Berne Convention. It also seeks to find its compatibility with EU copyright law as harmonized in the Directive 2001/29/EC. In the end, we conclude that the proposed treaty is in harmony with the three-step test, and though it has some variations from the EU Copyright Directive, it nonetheless shares some underlying objectives with the Directive and does not radically depart from what prevails in several EU member states.

On the Role of Copyright Protection in the Information Society

In January 2012, Poland witnessed massive protests, both in the streets and on the Internet, opposing ratification of the Anti-Counterfeiting Trade Agreement, which triggered a wave of strong anti-ACTA movements across Europe. In Poland, these protests had further far-reaching consequences, as they not only changed the initial position of the government on the controversial treaty but also actually started a public debate on the role of copyright law in the information society. Moreover, as a result of these events the Polish Ministry for Administration and Digitisation launched a round table, gathering various stakeholders to negotiate a potential compromise with regard to copyright law that would satisfy conflicting interests of various actors. This contribution will focus on a description of this massive resentment towards ACTA and a discussion of its potential reasons. Furthermore, the mechanisms that led to the extraordinary influence of the anti-ACTA movement on the governmental decisions in Poland will be analysed through the application of models and theories stemming from the social sciences. The importance of procedural justice in the copyright legislation process, especially its influence on the image of copyright law and obedience of its norms, will also be emphasised.

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.

Copyright Exhaustion Rationales and Used Software: A Law and Economics Approach to Oracle v. UsedSoft

This article aims to provide courts and policymakers with an analytical framework that, building upon the traditional rationales of IP exhaustion doctrine, identifies factors which advocate for a modulation or flexibilization of the role of exhaustion in copyright law. Factors include (i) the personal features of acquirers of copies of copyrighted works, distinguishing between consumers and commercial users; (ii) whether post-sale restrictions have been adequately communicated to acquirers and have been agreed in the contract or license; (iii) the degree of complexity of the acquired goods and their prospects of productive uses and interoperability; (iv) the role of other exclusive rights in providing rightholders with indirect control over uses of the copies in the aftermarket; (v) the impact of post-sale restraints in preventing opportunism in long-term contracts and in reducing deadweight losses created by IP pricing; and (vi) the temporal scope of post-sale restraints. After setting out this analytical framework, the ECJ Judgement in Oracle v. UsedSoft is discussed.