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Cristiana Sappa

Data of publicly funded services that are used to accomplish a public function is Public Sector Information (PSI). More precisely, any data, information or content created, produced, retained, disseminated or otherwise managed both for official purposes and accidentally by Public Sector Bodies (PSBs) or public undertakings while performing a public task can be considered as PSI. Thus, PSI covers documents and datasets, encompassing works of any nature such as geographical, meteorological, spatial, cadastral data, statistics, metadata, administrative documents, records, compilations, databases on corporate information and financial data, and any other information and contents, no matter whether its form is printed, digital or electronic, including sound recordings. PSBs can be any central or local government office, public administration or agency, including executive offices, legislatures, ministries, courts, assemblies, whether at the federal, regional, national or local level, including local administrations, municipalities, districts, and regions. PSBs can also be sectorial institutions, such as registrars, cadaster, and offices for statistics. In some instances, the PSB may also be an international or multinational organization. Also, cultural institutions, research or educational institutions can be considered PSBs. Thus, information on cultural goods, such as description of works of art in museums (metadata), as well as their reproductions can be considered as PSI. The broader the notion of PSB, the broader is the notion of PSI. The more PSI is available to the public, the stronger may be the impact on the potential economic and social growth of a community.

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Alain Strowel

The Europeanization of copyright law follows various paths. Secondary European Union (EU) copyright law, embedded in the ten directives (and one regulation) devoted to copyright issues, has indeed contributed to the approximation of national copyright laws. The obligation for the copyright directives to be transposed into national law nevertheless reduces the level of harmonization. But the Europeanization of copyright has taken another route: since its seminal Infopaq decision, the Court of Justice of the EU (CJEU) regularly delivers decisions which rule on major copyright issues, such as originality and the scope of the right of communication to the public. Those decisions not only make the law, they also show some shortcomings in the existing framework and indirectly indicate the direction that copyright reform could take in the future - if the EU continues to legislate in the field of copyright. To describe the far-reaching impact of the CJEU case law, some scholars have coined the terms ‘harmonisation by stealth’ or ‘by interpretation’. Basically, the CJEU is ‘filling the gaps’ of the primary and secondary EU laws. It is clear that a court-made harmonization of European copyright has been under way since 2009 at least. The CJEU probably offers a reasonably coherent interpretation of the substantive conditions of protection, the scope of the rights and of the exceptions, the balancing with other fundamental rights (freedom of expression, privacy, freedom to operate), the responsibilities of online intermediaries (including for hyperlinking and aggregating content), some contractual principles, etc.

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Nadine Klass, Hajo Rupp and Julia Wildgans

Even though the European Union (EU) is characterised by linguistic and also cultural diversity, Europeans also share a large common cultural heritage. ‘Culture’, as a term or concept, is recognised as very hard to define. It is a sphere of intellectual expression and comprises not only material culture, but also values, ideas and beliefs. Culture, thus, also has a non-material, intangible and communicative dimension. Culture as a root for European cultural heritage legislation and policy regarding digitisation can be broken down into art, including works of literature, music or architecture, science and education. As such, it plays an essential role in human development. Cultural heritage is a valuable asset in the knowledge-based world, an important resource for the European culture industry and a catalyst for creativity, as well as an important driver of growth and the creation of jobs. Supporting and promoting culture serves as a signal for prosperity and economic competence leading to further investments and international cooperation. Therefore, it is not surprising that the European Commission has emphasised already in its ‘European agenda for culture in a globalizing world’, which was adopted in 2007, that ‘creative entrepreneurship and a vibrant cultural industry are a unique source of innovation for the future’, and that ‘culture is an indispensable feature to achieve the EU’s strategic objectives of prosperity, solidarity and security, while ensuring a stronger presence in the international scene’.

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Lucie Guibault and Updated by Sabine Jacques

Collective management organisations play an essential role in enabling the mass dissemination of content that is protected by copyright and related rights within Europe and beyond, especially when such dissemination takes place over the internet. Whether it is through commercial content delivery services, through cultural heritage institutions in pursuit of their public mission, or through any other type of legitimate service, works are nowadays typically made accessible beyond the boundaries of a single territory. The need for multi-territorial licensing that spans the entire European territory is more acute than ever. The absence of EU-wide copyright licences has been one factor that has made it difficult for new internet-based music services to develop their full potential. Rights clearance for the exploitation of non-domestic repertoire must therefore be facilitated as much as possible. Since a significant portion of royalty collections in collective management organisations derives from the non-domestic repertoire, the facilitation of multi-territorial licensing of online music rights goes hand in hand with the establishment of a coherent system of collective rights management as a whole. The role and functioning of collective management organisations in the exploitation of copyright protected works in Europe therefore stands under the close scrutiny of European lawmakers and stakeholders with a view to developing solutions for the licensing of the aggregate repertoire of works administered by all European societies. The creation at the European level of a level playing field for collective management organisations has been for a long time an item on the European Commission’s agenda,

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Irini Stamatoudi and Paul Torremans

The obvious starting point for a conclusion is that the EU has already dealt with copyright in an extensive way. We currently number eleven Directives and two Regulations. Some years ago, it would have been difficult to imagine that the EU would opt for Regulations unless it wanted to go down the path of a unitary right. Initially, these interventions dealt with new technological developments, such as photographs, software and databases, where it was easier to introduce new legislation compared to an already vastly regulated area. What followed were interventions to iron out existing differences in national copyright rules that risked disturbing the operation of the Single Market. Such examples are the term of protection and the artists’ resale right, which was extended to all EU Member States. A third group of interventions reflects what happened in the international arena. After the conclusion of the TRIPs Agreement there was a real need to equip rightholders and judges with efficient and streamlined tools to enforce copyright. And the WCT and the WPPT needed to be transposed into EU and national law. That was also the case with the Marrakesh Treaty. The fourth group of interventions dealt with on the one hand the need to deal with transparency and accountability in the field of collective management (a field with a number of worrying symptoms in various Member States during a number of years) and the need to attain the Digital Single Market, i.e., to modernize copyright rules.

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Estelle Derclaye

The first sentence of Article 1 has not attracted controversy. The literature agreed that ‘any form’ means analogue or digital format and includes any potential future format. Accordingly, databases published on paper as well as electronic databases accessible online and on hard copies such as CD-ROMs are included within the scope of protection. The CJEU confirmed that the definition of a database is broad and was meant to be. Protection therefore subsists irrelevant of the medium. It would have contradicted the Berne Convention, WCT and TRIPs if the CJEU had decided they could not be in all formats. In addition, the CJEU ruled that in order to be protected a database must be fixed. The Directive was silent in this regard except for Recital 13 which stated that a database needed to be stored. Thus a database which is only in broadcast format is not protectable. Nor is a database in purely oral form. The CJEU has interpreted most of the terms of the second sentence of Article 1. A ‘collection ’ does not mean a large number of elements. The absence of such requirement may overprotect databases as technically a database composed of only two elements could be protected. However, if Recitals 45, 46 and 47 are taken into account, they should prevent abuses of a dominant position which could result from small but valuable databases. The Directive does not define ‘independent ’ but Recital 17 gives examples of subject matter which are not independent.

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Irini Stamatoudi and Paul Torremans

Article 1(1) states the obvious: that the Directive aims to harmonise further Union copyright and related rights law taking into account in particular digital and cross-border uses of protected content within the internal market. This aim was already provided in the Commission Communication of 9 December 2015 entitled ‘Towards a modern, more European copyright framework’ and is pertinent to achieving the Digital Single Market, as this term is stated in the Directive’s title. Article 1(1) also enumerates in broad terms the areas where action is taken, i.e., it lays down rules on exceptions and limitations, on the facilitation of licences, as well as rules, which aim to ensure a well-functioning marketplace for the exploitation of works and other subject matter. More particularly according to Recital 3: This Directive provides for rules to adapt certain exceptions and limitations to copyright and related rights to digital and cross-border environments, as well as for measures to facilitate certain licensing practices, in particular, but not only, as regards the dissemination of out-of-commerce works and other subject matter and the online availability of audiovisual works on video-on-demand platforms, with a view to ensuring wider access to content. It also contains rules to facilitate the use of content in the public domain. In order to achieve a well-functioning and fair marketplace for copyright, there should also be rules on rights in publications, on the use of works or other subject matter by online service providers storing and giving access to user-uploaded content.

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Irini Stamatoudi and Olivier Vrins

Directive 2004/48 on the enforcement of intellectual property rights (hereinafter the ‘Enforcement Directive’ or the ‘Directive’), which came into force on 20 May 2004, although a compromise as are most EU Directives, is the most comprehensive piece of EU legislation when it comes to counterfeiting and piracy. It harmonises the minimum means available to right holders and public authorities for fighting infringements of intellectual property (IP) rights and establishes a general framework for exchanging information and administrative cooperation between national authorities and with the Commission. It is the only EU legal instrument which deals with all IP rights (copyright and industrial property rights) without any distinction between them encompassing even those that have not been harmonised at EU level. It also sets the basis for EU harmonisation in an area that had not been touched upon before. It covers both substantive and procedural rules though mainly targeted to the latter. Issues that are not covered although included in the initial proposal are criminal sanctions and technical protection measures. Issues that are not covered and for which there was no such intention from the start are rules applicable to judicial cooperation, judicial powers, the recognition and enforcement of decisions in civil and commercial matters and applicable national law. The enactment of the Directive came as a response to the problem of counterfeiting and piracy that tormented the EU as well as its Member States and other countries for decades.

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Alison Firth

Article 102 TFEU is concerned to protect freedom of competition in the European Union’s (EU) ‘single market’ or ‘internal market’; competition law makes an important contribution to the goal of market integration. Article 102 (formerly Art. 82EC) has been described as, ‘the legal basis for a crucial component of competition policy … its effective enforcement helps markets to work better for the benefit of businesses and consumers. This is particularly important in the context of the wider objective of achieving an integrated internal market’. As articulated by AG Jacobs in Bronner, its ‘principal purpose is to prevent the distortion of competition - and in particular to safeguard the interest of consumers - rather than to protect the position of particular competitors’. Nevertheless, where an essential facility exists is controlled by a dominant undertaking and a competitor’s ability to compete is being prevented or hindered by refusal of access to the facility, the competitor may be able to complain to the Competition Authorities of abuse of dominance and request access as a remedy. The essential facility might be something tangible, such as a transport terminal, infrastructure, or other transport facility, a public telecommunication network or service, or intangible, such as finance, a copyright licence, or access to software code, or a licence to use a standard-essential patent. Article 102 constitutes one of three main strands of EU competition law, the others being Article 101, which regulates restrictive agreements.

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Olivier Vrins

‘Used as a noun, any child would be able to describe the archetypal pirate just by listing his most characteristic features: the wooden leg, the hook for a hand, the unkempt beard and the eye patch, which are the inevitable price of choosing such a risky way of life, full of adventures and dangers. […] The noun is used, by extension, as an adjective, particularly in conjunction with goods, referring to their lack of authenticity or the unorthodox means used to put them on the market. But this definition contrasts with the real spoils obtained by these characters, because the riches that they stole were never considered illegal, only their seizure by force from the rightful owners. One poet, in an ode to rebellion typical of that era, wrote that his ship was the pirate’s most valued possession, prized above all the fabulous stolen treasures.’ It was thus that the late lamented Damaso Ruiz-Jarabo Colomer, who was visibly in a good mood on 8 April 2008, tried to define the concept of ‘piracy’ - in a case which, in passing, was not only nothing to do with copyright law but was, furthermore, to do with genuine goods. Even for intellectual property law specialists, the concept of ‘piracy’ is not without ambiguity. It is generally applied to goods produced by infringing copyright or related rights. Depending on the context, it could refer to any type of infringement of a copyright or related right.