The Implementation, Application and Effects of the EU Directive on Copyright in the Information Society. CEPS Special Report No. 120, 19 November 2015

This study provides an ex-post evaluation of the EU copyright framework as provided by EU Directive 29/2001 on Copyright in the Information Society (InfoSoc Directive) and related legislation, focusing on four key criteria: effectiveness, efficiency, coherence and relevance. The evaluation finds that the EU copyright framework scores poorly on all four accounts. Of the four main goals pursued by the InfoSoc, only the alignment with international legislation can be said to have been fully achieved. The wider framework on copyright still generates costs by inhibiting content production, distribution and creation and generating productive, allocative and dynamic inefficiencies. Several problems also remain in terms of both internal and external coherence. Finally, espite its overall importance and relevance as a domain of legislation in the fields of content and media, the EU copyright framework is outdated in light of technological developments. Policy options to reform the current framework are provided in the CEPS companion study on the functioning and efficiency of the Digital Single Market in the field of copyright (CEPS Special Report No. 121/November 2015).

Injunctions against Innocent Third Parties: The Case of Website Blocking

The paper discusses the phenomenon of injunctions against third parties that are innocent from the tort law perspective. One such type of injunction, website blocking, is currently appearing in the spotlight around various European jurisdictions as a consequence of the implementation of Article 8(3) of the Information Society Directive and Article 11 of the Enforcement Directive. Website-blocking injunctions are used in this paper only as a plastic and perhaps also canonical example of the paradigmatic shift we are facing: the shift from tort-law-centric injunctions to in rem injunctions. The author of this paper maintains that the theoretical framework for the latter injunctions is not in the law of civil wrongs, but in an old Roman law concept of ‘in rem actions’ (actio in rem negatoria). Thus the term ‘in rem injunctions’ is coined to describe this paradigm of injunctions. Besides the theoretical foundations, this paper explains how a system of injunctions against innocent third parties fits into the private law regulation of negative externalities of online technology and explores the expected dangers of derailing injunctions from the tracks of tort law. The author’s PhD project – the important question of the justification of an extension of the intellectual property entitlements by the in rem paradigm, along with its limits or other solutions – is left out from the paper.

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.

Policy Options for Improving the Functioning and Efficiency of the Digital Single Market in the Field of Copyright. CEPS Special Report No. 121, 19 November 2015

This study explores the existing policy problems and the possible options for reforming the EU copyright framework as provided by EU Directive 29/2001 on Copyright in the Information Society (InfoSoc Directive) and related legislation, with a specific focus on the need to strengthen the Internal Market for creative content. We find two main policy problems: i) the absence of a Digital Single Market for creative works; and ii) the increasing tension between the current system of exceptions and limitations and the legal treatment of emerging uses of copyrighted content in the online environment. Without prejudicing a future impact assessment that might focus on more specific and detailed policy options, our analysis suggests that ‘more Europe’ would be needed in the field of copyright, given the existing sources of productive, allocative and dynamic efficiency associated with the current system. Looking at copyright from an Internal Market perspective would, in this respect, also help to address many of the shortcomings in the current framework, which undermine legal certainty and industrial policy goals.

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.

Assessing capacity in the context of testamentary, enduring power of attorney, and advance care directive documents in Australia

Balancing the competing interests of autonomy and protection of individuals is an escalating challenge confronting an ageing Australian population. Legal and medical professionals are increasingly being asked to determine whether individuals are legally capable to make their own testamentary, financial and/or personal/health care decisions. Diseases such as dementia impact upon cognition which necessitates collaboration between the legal and medical professions to satisfactorily assess the effect of such mentally disabling conditions upon legal competency. Terminological and methodological differences exist between the two professions when assessing capacity in this context which subsequently create miscommunication and misunderstanding. Consequently, it is not necessarily a simple solution for a legal professional to seek the opinion of a medical practitioner. Exacerbating the situation is the fact that no consistent and transparent capacity assessment paradigm currently exists in Australia. Assessments are instead being undertaken on an ad hoc basis dependent upon the skill set of the legal and/or medical professionals involved. A qualitative study seeking the views of legal and medical professionals who practise in this area has been conducted. This incorporated a review of the relevant literature and surveys which informed the semi-structured interviews conducted with 10 legal and 20 medical practitioners. Practitioners were asked whether there is a standard approach to assessment and whether national guidelines would assist. The general consensus was that uniform guidelines would be advantageous. The research also canvassed practitioner views as to the state of the relationship between the professions when assessing capacity. Three promising practices have emerged from this research: first, is the need for the development of national guidelines and supporting principles to satisfactorily assess capacity; second, is the possibility of strengthening the relationship between legal and medical professionals to assist in the satisfactory assessment of legal capacity; and third, the need for increased community education.

Get a life? The impact of the European working time directive : the case of UK senior doctors

This paper seeks to identify the effect of the implementation of the European Working Time Directive (EWTD) on the working hours of UK doctors. The Labour Force Survey is used to compare the working hours of doctors with a variety of control groups before and after the implementation of the directive. The controls include those unconstrained by the directive and doctor counterparts working in Europe. We use differences-in-differences and matching methods to estimate the impact of this natural experiment, distinguishing between the anticipation and enactment of the EWTD. We find that the legislation reduced the hours of senior doctors by around 8 hours in total including the component attributable to anticipation effects and allowing for (exogenously set) rising wages.

A proposal for a clean technology directive: European patent law and climate change

This article charts the conflicted, dissonant policies of the European Union towards intellectual property and climate change. It contends that there is a mismatch between the empirical work of the European Patent Office and the quietist policy options contemplated by the European Union. This article contends that the European Union needs to develop a Clean Technology Directive to allow for a differentiated approach to patent law and clean technologies - especially given the past complicity of the European Union in global warming and climate change. It highlights essential elements in a comprehensive policy package for the reform of patent law - considering patentable subject matter; patent incentives; and patent exceptions.

Phytoplankton quantity as an indicator of eutrophication in Finnish coastal waters : Applications within the Water Framework Directive

The tackling of coastal eutrophication requires water protection measures based on status assessments of water quality. The main purpose of this thesis was to evaluate whether it is possible both scientifically and within the terms of the European Union Water Framework Directive (WFD) to assess the status of coastal marine waters reliably by using phytoplankton biomass (ww) and chlorophyll a (Chl) as indicators of eutrophication in Finnish coastal waters. Empirical approaches were used to study whether the criteria, established for determining an indicator, are fulfilled. The first criterion (i) was that an indicator should respond to anthropogenic stresses in a predictable manner and has low variability in its response. Summertime Chl could be predicted accurately by nutrient concentrations, but not from the external annual loads alone, because of the rapid affect of primary production and sedimentation close to the loading sources in summer. The most accurate predictions were achieved in the Archipelago Sea, where total phosphorus (TP) and total nitrogen (TN) alone accounted for 87% and 78% of the variation in Chl, respectively. In river estuaries, the TP mass-balance regression model predicted Chl most accurately when nutrients originated from point-sources, whereas land-use regression models were most accurate in cases when nutrients originated mainly from diffuse sources. The inclusion of morphometry (e.g. mean depth) into nutrient models improved accuracy of the predictions. The second criterion (ii) was associated with the WFD. It requires that an indicator should have type-specific reference conditions, which are defined as "conditions where the values of the biological quality elements are at high ecological status". In establishing reference conditions, the empirical approach could only be used in the outer coastal water types, where historical observations of Secchi depth of the early 1900s are available. The most accurate prediction was achieved in the Quark. In the inner coastal water types, reference Chl, estimated from present monitoring data, are imprecise - not only because of the less accurate estimation method but also because the intrinsic characteristics, described for instance by morphometry, vary considerably inside these extensive inner coastal types. As for phytoplankton biomass, the reference values were less accurate than in the case of Chl, because it was possible to estimate reference conditions for biomass only by using the reconstructed Chl values, not the historical Secchi observations. An paleoecological approach was also applied to estimate annual average reference conditions for Chl. In Laajalahti, an urban embayment off Helsinki, strongly loaded by municipal waste waters in the 1960s and 1970s, reference conditions prevailed in the mid- and late 1800s. The recovery of the bay from pollution has been delayed as a consequence of benthic release of nutrients. Laajalahti will probably not achieve the good quality objectives of the WFD on time.    The third criterion (iii) was associated with coastal management including the resources it has available. Analyses of Chl are cheap and fast to carry out compared to the analyses of phytoplankton biomass and species composition; the fact which has an effect on number of samples to be taken and thereby on the reliability of assessments. However, analyses on phytoplankton biomass and species composition provide more metrics for ecological classification, the metrics which reveal various aspects of eutrophication contrary to what Chl alone does.

The EC Water Framework Directive and its implications for the Environment Agency

The bulk of the European Community's water policy legislation was developed between the mid 1970s and the early 1990s. These directives addressed specific substances, sources, uses or processes but caused problems with differing methods definitions and aims. The Water Framework Directive (WFD) aims to resolve the piecemeal approach. The Environemnt Agency (EA) welcomes and supported the overall objective of establishing a coherent legislative framework. The EA has been discussing the implications of the WFD with European partners and has developed a timetable for the implementation and a special team will commission necessary research.

Preparation for implementing the proposed EC Water Framework Directive in Finland

Finland reorganised its environmental administration in 1995 when thirteen Regional Environmental Centres (RECs) and one national agency called the Finnish Environment Institute (FEI) were created. The REC's and the FEI have been entrusted with functions related to water resources management. RECs and FEI together with the Ministry of Agriculture and Foresty have appointed a steering group which will supervise the implementation of the EC Water Framework Directive in Finland

Monitoring fish populations in Lower Lough Erne, Northern Ireland: applicability of current methods and implications for future monitoring under the EC Water Framework Directive

The proposed EC Water Framework Directive (WFD) will require member states to monitor both biotic and abiotic components of lake environments. With adoption of the WFD some measurement of fish populations will also be required. This paper describes work carried out since 1971, and particularly since 1991, on the status of fish populations in Lower Lough Erne, Northern Ireland, with an emphasis on defining change over time due to human impacts on the lake. This offers a reasonable starting point from which to develop a monitoring programme suitable for the needs of the WFD in this lake. The implications for as yet unmonitored fish populations in lakes are also determined.

The EC Water Framework Directive and monitoring lakes in the Republic of Ireland

The authors of the article explore and discuss the effects of implementing the EC Water Framework Directive (WFD) in the Republic of Ireland. They also summarise some of the findings from a survey of 31 lakes sampled regularly between March 1996 and December 1997. The lakes were sampled regularly for a range of physico-chemical and biotic variables that probably would be important for monitoring programmes implemented under the WFD. The authors discuss problems of monitoring lake types with varying seasonal patterns.

Models in the implementation of the Water Framework Directive - benchmarking as part of the modelling proccess

The Water Framework Directive (WFD; European Commission 2000) is a framework for European environmental legislation that aims at improving water quality by using an integrated approach to implement the necessary societal and technical measures. Assessments to guide, support, monitor and evaluate policies, such as the WFD, require scientific approaches which integrate biophysical and human aspects of ecological systems and their interactions, as outlined by the International Council for Science (2002). These assessments need to be based on sound scientific principles and address the environmental problems in a holistic way. End-users need help to select the most appropriate methods and models. Advice on the selection and use of a wide range of water quality models has been developed within the project Benchmark Models for the Water Framework Directive (BMW). In this article, the authors summarise the role of benchmarking in the modelling process and explain how such an archive of validated models can be used to support the implementation of the WFD.

Reform of Spain's profesional services market: Implementation of the EU Services Directive

The implementation of the European Commission Services Directive initiated the modernization process of services markets within the European Union. The objective was to guarantee the creation of a single market by ensuring the freedom of establishment and circulation. The transposition of the Directive in Spain triggered an initial wave of reforms in the Spanish legal system. A second package of reforms is currently underway, following recommendations by the EC, IMF and OECD, which highlight the relative lack of competition in Spain’s services as one of the major imbalances in its economy, alongside the public deficit and unemployment. Both the implemented and planned reforms represent a major step forward. Nevertheless, the government has recently announced modifications to the draft bill of the Professional Services and Associations Law, which is expected to soon be submitted for parliamentary debate and approval. Taking into consideration modifications already introduced, together with anticipated further changes, it will be important to maintain the main points of the draft bill and to introduce a deeper review of the legal framework for professional services, of the professional associations themselves, and for the activities that are subject to compulsory membership within a professional association. Spain’s territorial map of professional associations must too be redrawn.