EU Copyright Law Research Articles

Drawing the Contours of the European Public Domain

The key question that this chapter aims to address is how, and on what ground, conflicts around the public domain are adjudicated in different contexts. In order to answer this question, the first step consists in examining the rationales behind the current European IP regimes, and more specifically behind the European regimes of copyright and database right (II.). In theory if the goals pursued by a particular legal norm are clear, then the contours of that norm should be easily ascertainable. In other words, the study of the justifications behind the regimes should shed light on the reasons given for the assessment of a conflict between opposing norms. The focus of this chapter is on European Union IP law, specifically copyright and database right, because of its high degree of harmonization. While the various principles underlying the national copyright regimes may serve as guide for the European lawmaker (II.A), an in-depth analysis of such national influences would take us beyond the scope of the BIP-project. The brief analysis of the underpinnings of EU copyright law (II.B) leads to a discussion of the place of the public domain in harmonized European copyright law (II.C). The next section discusses how the rules of European IP law are applied in specific factual situations depicted in the BIP-Cases that touch on the boundaries of a particular IP regime, in the light of the stated objectives of that IP regime (III.).

Flexibility Grave \u2013 Partial Reproduction Focus and Closed System Fetishism in CJEU, Pelham

In the ongoing discussion about the impact of fundamental rights on EU copyright law, the Pelham judgment of the Court of Justice of the European Union (CJEU) has received much attention. However, the decision also raises important legal-doctrinal issues. The CJEU employs the harmonized right of reproduction as a vehicle to regulate adaptations of pre-existing source material. Moreover, the Court insists on a balancing of interests within the EU matrix of exclusive rights and limitations. The closed list of limitations in EU copyright law, however, can hardly be expected to offer sufficient breathing space for adaptation scenarios. As the Information Society Directive did not harmonize the right of adaptation, there was no need to include indispensable free adaptation rules that have evolved at the national level, such as the German “free use” doctrine. Instead of embracing national rules of equity and fairness to fill the gap, the CJEU is reluctant to borrow from the legal traditions of EU Member States and misses an important opportunity to provide guidance for the regulation of adaptations outside the sound sampling arena. After an introduction to the German “Metall auf Metall” saga that led to the Pelham decision, the following analysis sheds light on these developments in EU copyright law and discusses problems arising from the approach taken by the CJEU.

Remuneration Rights in EU Copyright Law

Remuneration Rights in EU Copyright Law

Functionality, cumulation and lessons from trade mark law: the Advocate General’s Opinion in Brompton Bicycle

On 6 February 2020, Advocate General Manuel Campos Sánchez-Bordona delivered his Opinion in Brompton Bicycle Ltd.1This is a copyright infringement case concerning folding bicycles. The basic design for the folding bicycle in question was created by Mr SI in 1975, with the first significant order in 1981 and more significant commercialization in 1987. Mr SI was granted a patent for the bike’s three-step folding mechanism2in 1981 (which has now long-expired), but he never sought design protection for any versions of his design. Could Mr SI, and the company he founded, Brompton Bicycle, now claim copyright in the design of the bikes to prevent the production of a bicycle of similar appearance, which incorporated the same folding mechanism? In this important case, the referring Belgian court asked the Court of Justice of the European Union (CJEU) whether, under harmonized EU copyright law, copyright protection is available to ‘functional’ shapes, ie those which are necessary to achieve a technical result, absent any legislative exclusion of this sort. It further sought clarification of which factors are relevant to ascertain whether a shape is necessary to achieve a technical result. In recommending an answer for the CJEU to adopt, the Advocate General considered the fraught and long-standing issue of when cumulative IP protection is permissible, particularly between copyright and patents or designs. This has been brought to particular attention in the light of Cofemel3 ruling that designs and works of applied art must be subject to no stricter test to qualify for protection than other copyright works. He also considered the nature of originality for the purposes of copyright law in the light of recent CJEU jurisprudence. The Advocate General sought to make a number of links to the approach to excluding functional matter under EU trade mark law, suggesting a negative convergence approach to the issue. However, the extent of his reliance upon trade mark doctrines in the different context of copyright without thoroughly exploring the implications is open to criticism.4

Why a Reform of Hosting Providerss Safe Harbour is Unnecessary Under EU Copyright Law

In the context of its Digital Single Market Strategy (DSMS) the EU Commission is currently engaged in a discussion of whether the liability principles and rules envisaged by Directive 2000/31 (the Ecommerce Directive) should be amended. One of the principal concerns in relation to unlicensed online intermediaries (notably unlicensed hosting providers) is that these have been increasingly said to invoke the safe harbour immunities in the Ecommerce Directive lacking the conditions for their application. This alleged abuse has led to a distortion of the online marketplace and the resulting ‘value gap’ indicated by some rightholders. This contribution discusses a recent proposal advanced in France which asks to remove the safe harbour protection pursuant to Article 14 of the Ecommerce Directive for hosting providers that give access to copyright works. After addressing some of the points raised by the French proposal, this work concludes that the Court of Justice of the European Union (CJEU) has not erred in its interpretation of relevant provisions of the Ecommerce Directive and that – in practice – the removal of safe harbour protection for passive hosting providers that give access to copyright works would not provide any distinct advantages to rightholders. Overall, the current framework already provides an adequate degree of protection: what is required is a rigorous application by national courts of the principles enshrined in the Ecommerce Directive, as interpreted by the CJEU.

Towards a European 'Fair Use' Grounded in Freedom of Expression

It is often claimed that an open-ended provision for copyright limitations such as the US fair use clause would be unfit for civil law countries because of their author-centered traditions of copyright law and their traditional skepticism towards “judge made law” encouraged by open norms. However, the rising application in those countries of fundamental rights by the judiciary to solve copyright cases (mainly based on freedom of expression and information) and the balancing of interests it requires resemble in many aspects the practice of common law jurisdictions and the weighing of factors typically done in the context of a fair use analysis. As a consequence, this article argues that some sort of “fair use” is already a reality in Europe; therefore, the debate should shift from the question of the compatibility of an open-ended copyright limitation with the European legal system to the question on how to draft a “fair use” provision that would better fit the European legal tradition. In order to do so, the paper analyses in detail the judicial application of the freedom of expression’s test of proportionality to IP disputes. It further demonstrates that, by providing for a developed list of fairness factors analogous to those of the US fair use, the courts have developed appropriate and functioning criteria to assess the legality of a copyright use, which, once systematized, could serve as a European open-ended copyright limitation. Since in Europe a clause analogous in openness and flexibility to the US fair use provision is lacking, the article advocates the legislative incorporation of an open-ended clause grounded in freedom of expression in EU copyright law in order to enhance clarity, transparency and legal security, and concludes with a drafting proposal for such a provision.

Geoblocking in EU Copyright Law: Challenges and Perspectives

Abstract EU copyright law has attempted to resolve the antithesis between the ideal of the single market and the concept of copyright territoriality through a modest approach, which is based on the axiom of safeguarding copyright territoriality and of the accompanying geoblocking practices. The aim of this article is to critically analyse the EU’s steps towards the circumvention of the principle of territoriality and of geoblocking and to demonstrate that, as the efforts to create a digital single market are intensified, a strict EU geoblocking policy in relation to services offering access to copyright-protected works cannot be retained. The article is divided into three parts. Part one is dedicated to the consequences of the principle of territoriality on European copyright law (II). Part two is dedicated to the steps, both jurisprudential and legislative, which have been taken to move away from the principle of copyright territoriality at the European level (III). Part three is dedicated to the recently adopted Geoblocking Regulation 2018/302, while possible ways to move forward are also analysed (IV).

The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien, Pelham and Spiegel Online Decisions of the CJEU: Progress, but Still Some Way to Go!

In the first part of the new millennium, the rise of the use of fundamental rights in shaping and using intellectual property norms has led one of the authors of this article to predict that this movement will be “constitutionalizing” intellectual property law. More than a decade and a half later, the influence of fundamental rights on the scope and limitations of intellectual property has never been more important, as illustrated by three seminal copyright decisions (in the Funke Medien, Pelham and Spiegel Online cases) delivered in July 2019 by the Court of Justice of the European Union. These decisions, dealing with the relationship between copyright and freedom of expression (including freedom of the media, information, and freedom of artistic creativity), stand out in the European judicial practice on copyright and fundamental rights for a number of reasons. First, freedom of expression and its balancing factors play a crucial role in shaping the contours of the exclusive rights, starting from the definition of copyright law’s subject-matter and extending to the right of reproduction, as well as – most importantly – to copyright limitations and exceptions. In essence, the CJEU takes a quite liberal position towards the national courts’ interpretation of existing copyright norms in the light of the freedom of expression requirements. The CJEU goes even as far as to term the Art. 5 InfoSoc exceptions not as “exceptions” as such but as self-sufficient rights of users of copyright-protected subject-matter. It is also notable that, in applying freedom of expression to EU copyright, the CJEU has largely relied on the case law of yet another supranational European court – the European Court of Human Rights – manifesting eagerness to engage in a “dialogue” with the principal human rights tribunal in Europe in order to establish guiding principles for EU copyright law informed by freedom of expression. Such a liberal, “freedom-of-expression-driven” approach of the CJEU to the interpretation of EU copyright appears quite analogue in results that could be reached by applying an external and/or open-ended copyright exception. Nevertheless, the Luxembourg Court indicates in Funke Medien, Pelham and Spiegel Online that an externally introduced flexibility (by means of complementing that already existing in the EU list of exceptions) could be harmful to copyright harmonization and legal certainty. Therefore, despite having taken a more favourable position on the possibility of shaping EU copyright by fundamental rights norms, the CJEU does not go all the way, since it considers in quite categorical terms that an external freedom of expression exception beyond the exhaustive list of limitations of Art. 5 InfoSoc is clearly inacceptable. According to the Court, copyright’s own internal mechanisms present sufficient safety valves for balancing with freedom of expression. Such a position of the CJEU that relies on the fact that the legislature has anticipated all the potential conflicts between copyright and higher ranking norms such as fundamental rights might be incompatible with the EU legal order. Thus, despite visible progress in flexibilizing copyright norms via their interpretation “in the light of” fundamental rights, some further steps will still need to be taken in the future to make the “constitutionalization” of IP law a complete reality in the EU.

Levola Hengelo BV v Smilde Foods BV: The Hard Work of Defining a Copyright Work

AbstractThe Court of Justice of the European Union's judgement in Levola Hengelo BV v Smilde Foods BV ruled that the taste of food cannot be protected as a copyright work under EU copyright law. This note describes the issues in the primary dispute concerning the claim of copyright in the taste of cheese, the reasoning of Advocate General M. Wathelet who advised the CJEU, and the reasoning of the CJEU in its broad concurrence with the AG. It then critiques the CJEU's judgement, which is surprisingly brief, considering the gravity of the question, which probes the boundaries of the copyright work under EU law. The note explains the many opportunities that were overlooked by the court in its brief judgement, attempts to unravel some of the more ambiguous aspects of the judgement, and assesses the merit and utility of the court's primary pronouncement that a copyright work must be objectively identifiable.

The New Copyright in the Digital Single Market Directive: A Critical Look

This article provides an overview and critical examination of the new Directive on copyright and related rights in the Digital Single Market. Despite some positive aspects, the Directive includes multiple problematic provisions, including the controversial new right for press publishers and the new liability regime for content-sharing platforms. On balance, the Directive denotes a normative preference for private ordering over public choice in EU copyright law, and lacks adequate safeguards for users. It is also a complex text with multiple ambiguities, which will likely fail promote the desired harmonization and legal certainty in this area.

Can a Machine Learning Generated Work Be Protected As Original Under EU Law?

This is a working chapter of the author's PhD thesis work. Recent years have witnessed a boom in algorithms involving cognition-imitating processes. Different to traditional digital editing programs, these machines fed with large datasets develop complex decision-making, bringing about unforeseen creative outcomes. Eventually, it becomes particularly difficult to identify the person responsible for the final creative choices in a work and thus vest that individual with the copyright authorship claim. The overall expected policy contribution of this PhD research is to avoid a situation of discontinuity in copyright law by adequately safeguarding the author’s role in the creative industries. The first two chapters of this PhD turn respectively to the notion of the author and the concept of ownership in copyright law. The chapter I intend to submit instead focuses on the object of protection under copyright law, namely the work. It studies the standard of originality as developed by the CJEU case law and aims to analyse whether such an approach is indeed in line with the objectives of copyright law. More in general, this research critically analyses the problem of allocating authorship in the final creative output of such programs from an EU law perspective. Since most traditions inevitably associate the notion of authorship with a human being, then naturally, the copyright claim in the final creative work eventually also vests with a human being. While this may be entirely in line with the anthropocentric view dominant in EU copyright law, it is certainly challenged by recent developments in machine learning. Creative works generated by machine learning algorithms are often indistinguishable from true authorial works. Moreover, these have indeed been marketed for significant prices. The authorship analysis in EU copyright law puts under the limelight the romantic figure of the author, whereby the work, the object of copyright protection itself, is protected only by virtue of being the “author’s own intellectual creation” (emphasis added). Such an analysis prejudices the objective assessment of the work since even if a work stands for an original expression, if it lacks the stamp of personal touch of the author it would not be considered protected copyright work and would thus fall in the public domain.

European Union copyright law and the Charter of Fundamental Rights\u2014Advocate General Szpunar\u2019s Opinions in (C-469/17) Funke Medien, (C-476/17) Pelham GmbH and (C-516/17) Spiegel Online

Increasingly, national courts have begun to consider the impact of the Charter of Fundamental Rights on EU copyright law. In (C-469/17) Funke Medien, (C-476/17) Pelham GmbH and (C-516/17) Spiegel Online v Volker Beck, the German Federal Supreme Court has referred a series of important questions about the relationship between the Charter, copyright law and national constitutional norms. This article explores the Opinions of Advocate General Szpunar in those cases and considers some of the broader potential consequences of the approach that he advocates.

Modernization of EU Copyright Law in the Era of Digital Technology

Modernization of EU Copyright Law in the Era of Digital Technology

The Boundaries of EU Copyright Law: Cheese, Jeans and a Military Report in the Court of Justice

Copyright is a centrepiece in the ongoing construction of the digital single market. Evidently, copyright only applies to works. Thus, the definition of its scope lies in knowing what a work is. Although that was not envisioned nor intended by the lawmaker, the Court of Justice has adopted a European notion of work in its controversial decision C-5/08, Infopaq, conflating it with the one of originality. Such an approach has been confirmed and expanded by subsequent case law. The Court has already fleshed out the main criterion for a creation to enjoy copyright – it must be original in the sense of being the author’s own creation – and seems to reject any additional criteria. However, the boundaries of the European notion of work are still unknown. Some recent preliminary ruling requests will allow some clarification. One asks about the possibility of copyright protection for the taste of a specific cheese (C-310/17, Levola Hengelo). Another one deals with the protection of a fashion design for jeans (C-683/17, Cofemel) and yet another concerns a military report (C-469/17, Funke Medien). After describing the evolution of the law on the EU notion of copyright, this article frames and critically analyses the questions surrounding these cases, proposes answers thereto and makes a prediction of the outcome, i.e. the Court’s decision, in each of them.

Sound Sampling, a Permitted Use Under EU Copyright Law? Opinion of the European Copyright Society in Relation to the Pending Reference before the CJEU in Case C-476/17, Pelham GmbH v. H\xfctter

This Opinion from the European Copyright Society (ECS) discusses the legal boundaries of the use of sound sampling under copyright law in the context of the currently pending CJEU case 476/17 (Pelham GmbH v. Hütter). The ECS recommends a careful interpretation of the scope of the phonogram producer’s right. In the absence of any threshold or condition for protection, this right will extend to cover minimal parts of phonograms and will exceed the protection offered to works in copyright law. Sampling should only be covered by the phonogram producer’s rights where it significantly prejudices the economic interests of the right holder. The ECS also argues that the quotation exception in Art. 5(3)(d) InfoSoc Directive should apply to sound sampling, even where it is not evident to the listener that another person’s work or subject matter is being used in the form of a sound sample. However, such use requires that the source, including the author’s name, should be given in the description of the work. In this regard, the ECS reiterates the duty of the CJEU to interpret the provisions of EU Directives in a manner that ensures compatibility with the Charter of Fundamental Rights of the European Union, especially the freedom of the arts (Art. 13) and the freedom of expression and information (Art. 11). In the introduction below, Advocate General Szpunar’s Opinion (which takes a very different view on the issues referred by the national court) is also briefly considered.

Artificial Intelligence, Machine Learning and EU Copyright Law: Who Owns AI?

Within the broad field of Artificial Intelligence (AI), Machine learning (ML) looks at improving the performances of computers in executing tasks for which they were not specifically pre-programmed. Applied to the field of Natural Language Processing (NLP), ML helps computers to autonomously learn tasks such as the recognition, understanding and generation of natural language (i.e. the language spoken by humans). In other words, ML applied to NLP refers to the ability of humans to interact with computers in the same way in which humans interact among themselves. On the part of the computers this implies being able to understand human language, to understand its meaning, and to interact with it thorough the generation of new language. Examples of these applications are very common in the current information society. Digital devices including phones, tablets, watches and an increasing number of home furniture, are nowadays equipped with personal assistants (generally called “AI”) which can be activated and can communicate through voice. More often than what one may think, when calling the consumer support service of a growing number of companies – or more commonly when contacting them via social networks – it is not a human who answers the phone call, replies to the tweets or other notifications. This study focuses specifically on this element, i.e. how computers learn a language. The reason is straightforward: when humans learn a new language they usually store the training information (e.g. the text book used to learn it) as an electrochemical trace in the area of the brain dedicated to language. Humans do not need a copyright exception in order to store that copy. Traditional copyright law and theory (in addition to common sense) have that this activity is outwith the copyright realm. However, it is far from clear that when a computer makes the corresponding digital copy of training material in order to learn a language this activity is likewise excluded from the copyright domain. On the contrary, normally any digital copy, temporary or permanent, in whole or in part, direct or indirect, has the potential to infringe copyright. Normally, computers learning natural languages need to “train models” using specific ML algorithms. The trained models represent the “memory” of a machine which has learned a language. But how is this memory created? Or in NLP parlance, how are the models trained? Usually, models are trained on corpora, that is to say on literary works often “available on the internet”. The question thus becomes the following: is the act of training a model for ML purposes a copyright relevant activity? The answer to this question is not only relevant in terms of copyright law and theory, but more broadly in terms of innovation policy as it has the potential to determine who has to ask whom for what permission in order to perform ML functions. In other words: who owns AI? In more precise terms, the research question of this short contribution will focus on the act of training a model for ML/NLP purposes and attempts to answer the question of whether this act infringes copyright and in particular the right of reproduction. In addition to this, the contribution also intends to explore whether there are other rights that may be infringed, in particular the right of adaptation, and thus determine whether a ML trained model can be considered a creative adaptation of the original corpora. The reference legal framework will be EU copyright law, with occasional reference to domestic law when necessary.

Artificial Intelligence and Copyright Protection

The proliferation of cultural creations using AI, and their increasing commodification, raises interesting questions from a copyright perspective. This paper addresses the copyright issues raised by works that are generated by AI. In particular, it assesses whether AI generated content may constitute an original, copyright protected work, and who is the author and owner of copyright in such a work, if at all. This is done from the perspective of international, EU and domestic copyright law (UK, France and US). The paper suggests that there is sufficient copyright protection for AI generated content such that reforms to the system are probably not needed.

Text and Data Mining in the EU “Acquis Communataire” Tinkering with TDM & Digital Legal Deposit

textabstractText and Data Mining (hereinafter, TDM) issue for the purpose of scientific research or for any other purpose which is included in the provisions of the new EU Directive on Copyright in the Digital Single Market (hereinafter, DSM). TDM is a term that includes Web harvesting and Web Archiving activities. Web harvesting and archiving pertains to the processes of collecting from the web and archiving of works that reside on the Web. In the following analysis we will elaborate briefly upon provisions in EU Copyright law which were discussed during the proposal for a new Directive on Copyright in the DSM as well as provisions which are included in the text of art.3 and art.4 of the new Directive 2019/790/EU per TDM. In addition, the following analysis presents legislation in very few EU Member States which pertains to TDM and preceded the rulings of Directive 2019/790/EU. Digital legal deposit remarkable examples from EU Member States are also presented in this paper. The example of Australia is also presented below hereto because it is one of the oldest and most successful worldwide. The National Library of Australia’s digital legal deposit is state-of-the-art.

Intermediary Liability and Trademark Infringement: Proliferation of Filter Obligations in Civil Law Jurisdictions?

The erosion of the safe harbour for hosting in the EU Directive on Copyright in the Digital Single Market (CDSM Directive) leads to a remarkable climate change in the field of EU copyright law and the civil law jurisdictions of continental EU Member States. Inevitably, it raises the question of potential repercussions on the safe harbour for hosting and filtering standards in trademark cases. Even though online marketplaces are explicitly exempted from the new copyright rules and the CDSM Directive is not intended to neutralize the safe harbour for hosting in trademark cases, the adoption of a more restrictive approach in copyright law may quicken the appetite of trademark proprietors for similar measures in trademark law. The extension of the new copyright approach to trademark cases, however, is unlikely to yield satisfactory results. Due to the different conceptual contours of trademark rights, a system mimicking the filtering obligations following from the CDSM Directive would give trademark proprietors excessive control over the use of their trademarks in the digital environment. Such an overbroad system of automated, algorithmic filtering would encroach upon the fundamental guarantee of freedom of expression and freedom of competition. It is likely to have a chilling effect on legitimate descriptive use of trademarks, comparative advertising, advertising by resellers, information about alternative offers in the marketplace, and use criticizing or commenting upon trademarked products. As a result, consumers would receive less diverse information on goods and services and the free movement of goods and services in the internal market would be curtailed. The reliability of the internet as an independent source of trademark-related information would be put at risk. The analysis, thus, leads to the insight that a proliferation of the new filtering obligations in copyright law is undesirable and should be avoided.

The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien, Pelham and Spiegel Online Decisions of the CJEU: Progress, But Still Some Way to Go!

In the first part of the new millennium, the rise of the use of fundamental rights in shaping and using intellectual property norms has led one of the authors of this article to predict that this movement will be “constitutionalizing” intellectual property law. More than a decade and a half later, the influence of fundamental rights on the scope and limitations of intellectual property has never been more important, as illustrated by three seminal copyright decisions (in the Funke Medien, Pelham and Spiegel Online cases) delivered in July 2019 by the Court of Justice of the European Union. These decisions, dealing with the relationship between copyright and freedom of expression (including freedom of the media, information, and freedom of artistic creativity), stand out in the European judicial practice on copyright and fundamental rights for a number of reasons. First, freedom of expression and its balancing factors play a crucial role in shaping the contours of the exclusive rights, starting from the definition of copyright law’s subject-matter and extending to the right of reproduction, as well as, most importantly – to copyright limitations and exceptions. In essence, the CJEU takes a quite liberal position towards the national courts’ interpretation of existing copyright norms in the light of the freedom of expression requirements. The CJEU goes even as far as to term the Article 5 InfoSoc exceptions not as “exceptions” as such but as self-sufficient rights of users of copyright-protected subject-matter. It is also notable that, in applying freedom of expression to EU copyright, the CJEU has largely relied on the case law of yet another supranational European court – the European Court of Human Rights – manifesting eagerness to engage in a “dialogue” with the principal human rights tribunal in Europe in order to establish guiding principles for EU copyright law informed by freedom of expression. Such a liberal, “freedom of expression-driven” approach of the CJEU to the interpretation of EU copyright appears quite analogue in results that could be reached by applying an external and/or open-ended copyright exceptions. Nevertheless, the Luxemburg Court indicates in Funke Medien, Pelham and Spiegel Online that an externally-introduced flexibility (by means of complementing an already existing in EU list of exceptions) could be harmful to copyright harmonisation and legal certainty. Therefore, despite having shown a more favourable position to the possibility of shaping EU copyright by fundamental rights norms, the CJEU does not go all the way, since it considers in quite categorical terms that an external freedom of expression exception beyond an exhaustive list of limitations of Article 5 InfoSoc is clearly inacceptable. According to the Court, copyright’s own internal mechanisms present sufficient safety valves for balancing with freedom of expression. Such position of the CJEU that relies on the fact that the legislator has anticipated all the potential conflicts between copyright and higher ranking norms such as fundamental rights might be incompatible with the EU legal order. Thus, despite a visible progress in flexibilizing copyright norms via their interpretation “in the light of” fundamental rights, some further steps will still need to be taken in the future to make the “constitutionalization” of IP law a complete reality in the EU.