Information Society Directive Research Articles

Oops, I Sampled Again … the Meaning of “Pastiche” as an Autonomous Concept Under EU Copyright Law

With the return of the Metal auf Metal case (Pelham v. Hütter) to the Court of Justice of the European Union (CJEU), the Luxembourg court will again be faced with the question under which circumstances the reproduction of parts of a sound recording requires authorisation. When the case was first argued before the EU’s highest court, it revolved around the concept of partial reproduction of a sound recording and an interpretation of the quotation exception. In addition, the defendant had proposed that national courts, in the absence of an applicable exception, could provide for flexibility by allowing creative uses purely based on fundamental rights. The Court rejected this possibility, arguing that something akin to an open norm would create legal uncertainty. Following the first ruling, Germany, where the case originated, implemented the pastiche exception of Art. 5(3)(k) of the Information Society Directive into its national copyright law. In Pelham v. Hütter II, the CJEU is asked to give guidance on the interpretation of the concept of pastiche. Following the introduction of the exception under German law, German courts had interpreted the exception broadly, allowing a variety of derivative artistic uses. This article explores the concept of pastiche from an interdisciplinary and comparative perspective. After an overview of the relevant German decisions, it explores the various non-legal meanings of pastiche before comparing the development of the notion in the copyright laws of Italy, France and some other EU Member States. Since the non-legal as well as the different national legal understandings of pastiche do not crystallise a common understanding of the notion, pastiche is subsequently developed as an autonomous concept under EU law. In distinguishing pastiche from parody, which the CJEU developed as an autonomous concept in the Deckmyn case, the article proposes that pastiche should be understood as an exception that broadly permits referential uses that have no elements of humour or mockery – as distinct from parody – but are of an artistic nature. An important role must be assigned to the three-step test, which functions as a framework to balance the interests of rightholders and users in a given case.

An authoritative guide to the DSM Directive

As Eleonora Rosati points out in the Preface to her new book, 2021 is a momentous year for European Union copyright law for three reasons. Firstly, it is the 30th anniversary of the first harmonizing Directive in the field of copyright and related rights, the Computer Programs Directive.1 Secondly, it is the 20th anniversary of the most significant of the 19 Directives and Regulations (if you include the E-Commerce Directive2 and the IP Enforcement Directive3) passed so far, the Information Society Directive,4 the interpretation of which continues to keep the Court of Justice of the European Union busy.5 Thirdly, it is the year in which implementation was due of the most ambitious and complex Directive since the Information Society Directive, namely, the Digital Single Market Directive.6 It is the Digital Single Market Directive that forms the subject of this book. For those who are not yet familiar with it, the Directive is divided into five Titles, supplemented by no less than 86 recitals. Title I, ‘General Provisions’, consists of Articles 1 and 2, which set out the subject-matter and scope of the Directive and various definitions. Title II, ‘Measures to Adapt Exceptions and Limitations to the Digital and Cross-Border Environment’, consists of Articles 5–7, which introduce new mandatory exceptions for text and data mining (Articles 3 and 4), digital and cross-border teaching (Article 5) and preservation of cultural heritage (Article 6). Title III, ‘Measures to Improve Licensing Practices and Ensure Wider Access to Content’, is divided into four chapters. Chapter 1 (Articles 8–11) consists of provisions concerned with the use of out-of-commerce works by cultural heritage organizations, in particular through licencing by collective management organizations. Chapter 2 (Article 12) is intended to facilitate extended collective licencing. Chapter 3 (Article 13) is intended to facilitate access to audiovisual works on video-on-demand platforms and Chapter 4 (Article 14) prevents Member States from conferring related rights (as opposed to copyright where the originality criterion of author’s own intellectual creation is satisfied) upon photographs of works of visual art that are in the public domain. Title IV, ‘Measures to Achieve a Well-Functioning Marketplace for Copyright’, is divided into three chapters. Chapter 1 provides a new related right for press publishers (conceptually similar to, but differing in many details from, the UK typographical arrangement right) (Article 15) and for publishers to be able to receive a share of royalties received by authors (Article 16). Chapter 2 (Article 17) contains a complex set of provisions regulating the use of protected content by ‘online content-sharing service providers’. Chapter 3 contains a series of provisions intended to ensure that authors and performers receive fair remuneration from contracts for the exploitation of their works and performances: a requirement that authors and performers receive appropriate and proportionate remuneration (Article 18); an obligation for licencees and transferees to provide authors and performers with information concerning the exploitation of their works and performances (Article 19); a requirement that authors and performers be able to claim additional remuneration where the remuneration originally agreed turns out to be too low (Article 20); a requirement for ADR to be made available (Article 21): and a requirement that authors and performers be able to revoke licences and transfers where there is a lack of exploitation (Article 22). Title V, ‘Final Provisions’, amends some of the earlier Directives and contains some technical provisions dealing with things like application in time and transposition (Articles 24–32).

Collateral Damage: Reuse in the Arts and the New Role of Quotation Provisions in Countries with Free Use Provisions After the ECJ\u2019s Pelham, Funke Medien and Spiegel Online Judgments

This article examines the impact of the European Court of Justice’s Pelham decision (C-476/17) on reuse, including appropriation art, borrowing and plagiarism in the arts, especially in music. Insofar, the focus lies on countries that have operated before with broad free use provisions. Specifically, we consider the extent to which EU law permits quotation provisions to fill the gap left by free use limitations, which have been curtailed by the Pelham decision. As we explain, Pelham creates a more restrictive approach to certain unlicensed use of copyright materials in new works of artistic expression, including music appropriation. We present our research in four sections. First, we compare existing national free use and quotation provisions in four states subject to EU law regarding their respective wiggle room for unlicensed yet lawful reuse in the arts. Second, we explore how the ECJ’s interpretation of the InfoSoc quotation exception, particularly in the Pelham, Funke Medien and Spiegel Online judgments, minimises the leeway for reuse in the arts provided by these national quotation provisions, in comparison to free use provisions. (Information Society Directive, 2001/29/EC.) Third, we address possible objections to our position and explain why we believe the consequences of the ECJ decisions cannot be bypassed. (Copyright in the Digital Single Market Directive, (EU) 2019/790.) Finally, in the conclusion, we explore the consequences, including the need for legislative reform.

Copyright issues related to reproduction rights arising from streaming

AbstractWith the rapid development of streaming media technology, more and more people have begun to watch films on streaming websites. However, it has been noted that some of them are streaming unauthorized content, which has posed a major challenge to the entertainment sector's traditional business model. Against this background, legal issues arising from the streaming of media online is an area of huge current interest, one issue being the exact liability of providers and users of streaming services and whether they are infringing on the reproduction right of the copyright holders. Since the liability of platforms has been extensively discussed in the academic literature, in this article we mainly focus on the liability of users who stream unauthorized works. To this end, the article analyses the reproduction act of streaming platform users under the UK and European Union approaches and examines Article 5(1) of the Information Society Directive in the context of streaming. In addition, we explore the liability of users who stream unauthorized content via virtual private network services.

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.

EU Copyright Reform: Grappling With the Google Effect

Sweeping changes are coming to copyright law in the European Union. Following four years of negotiations, the European Parliament in April 2019 approved the final text of the Digital Single Market (DSM) Directive. The new directive contains provisions for enhancing cross-border access to content available through digital subscription services, enabling new uses of copyrighted works for education and research, and, most controversially, “clarifying” the role of online services in the distribution of copyrighted works. Article 17 of the DSM Directive is directed to the last of these goals. It was designed to address the so-called value gap — the music industry’s longstanding complaint that YouTube underpays music rights holders for streams of user-uploaded videos containing claimed copyrighted content. The text of the DSM Directive nowhere mentions YouTube, but anyone versed in the political economy of digital copyright knows that Article 17 was designed specifically to make YouTube pay. The important question in the wake of Article 17’s adoption is who else will pay — and in what ways. This Article offers a focused examination of Article 17 as a public law created to settle a private score between the music industry and YouTube. Following an introduction in Part I, Part II explains and critiques the “value gap” as a policy rationale for altering the scope of copyright safe harbors. Part III breaks down the terms of the European Commission’s original proposal for Article 13 (which later became Article 17) in relation to existing provisions of the E-Commerce Directive and the Information Society Directive. Part IV surveys human rights-related and competition-related criticisms of the Commission’s proposal. Part V analyzes the adopted text of Article 17 with attention to the nature and adequacy of revisions made to answer the criticisms outlined in Part IV. Part VI provides a conclusion.

Utilitarianism v. Deontology: A Philosophy for Copyright

The Anglosaxon copyright system is founded upon theories of utilitarianism, whereas the European system, generally upon deontology. A series of particular traits aid us at the identification of which theory a copyright system supports. For example, the management of the moral rights of authors and creators shows this difference very eloquently. In Europe, starting with the Berne Convention of 1886, authors and creators enjoy a right to paternity, a right to first publication and a right to integrity of the work; in the US, it is mainly visual artists only who enjoy similar protection, under the Visual Artists Rights Act of 1990. In the last decade or so, the European Union has proceeded with a number of copyright Directives which approach the American system much more than in the past ever thought possible. Whereas national legislations on moral rights remain intact, the 1991 Directive on Computer Programs, the 1996 Database Directive, the 2001 Information Society Directive of 2001 and the 2001 Resale Right Directive lean strongly towards the economic rationale of copyrights. The work attempts to show how this approach has occurred, at a time where no major change in philosophical thought of copyright in the European Union appears sustainable. This work also attempts to explain why the economic rationale seems to have superseded the deontological one in the EU, stressing the impact of lobbying by the copyright industries and pressure from forces outside the European Union. The work, finally, arrives at a conclusion founded upon the supremacy of the deontological reasoning behind copyright.

The Impact of the Information Society Directive on UK Copyright Law

This paper examines the impact of Directive 2001/29/EC in light of two major developments since 2011. The first is the extensive growth of EU jurisprudence on Directive 2001/29/EC and, particularly, increased judicial harmonization of copyright. As a result of this shift, clarity on some – but not all - aspects of Directive 2001/29/EC has emerged and the flexibility of Article 5 exceptions and limitations has been somewhat constrained. While UK courts have sought to apply the interpretations of the European Court of Justice, on occasions (such as with the originality requirement) they have still been prone to relying on domestic concepts and principles. The second and more troublesome development is the regrettable decision of the United Kingdom to withdraw from the European Union. The negotiations for withdrawal are on-going and so it is difficult to predict the consequences for UK copyright law. Even so, the Directive 2001/29/EC and its interpretations by the European Court of Justice are likely to remain influential in future to UK copyright law. As a result of these two major developments, the picture of how Directive 2001/29/EC impacts UK copyright law has become more complex. This paper will seek to tease out these complexities in discussion of the following topics: i) originality; ii) exclusive rights; iii) exceptions; and iv) the UK’s post-Brexit future.

Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the US Experience

The ongoing transposition of the EU Information Society Directive's requirement that member States adopt of legal prohibitions of the circumvention of technological protections of works of authorship occasions this review of international obligations and their implementation in the US. This article addresses the scope of international obligations the WIPO Copyright Treaties impose on member States to protect against circumvention, as well as the US experience with the Digital Millennium Copyright Act's prohibitions on circumvention of access and copy controls. It examines the text of the statute, codified at sec. 1201 of the 1976 Copyright Act, the five years of judicial decisions interpreting the statute, and the two administrative proceedings implementing one aspect of the statutory scheme. The analysis of the DMCA and its judicial and administrative interpretation will take up three issues: 1) What technological measures does sec. 1201 protect? 2) What conduct does sec. 1201 prohibit? 3) To what extent does sec. 1201 accommodate copyright exceptions? The US experience to date indicates that legal protection for technological measures has helped foster new business models that make works available to the public at a variety of price points and enjoyment options, without engendering the digital lockup and other copyright owner abuses that many had feared. This is not to say that the US legislation and its judicial interpretation represent the most preferable means to making the internet a hospitable place for authors while continuing to enable lawful user conduct. But brooding forecasts and legitimate continuing concerns notwithstanding, the overall equilibrium so far appears to be a reasonable one.

Comparative Analysis of the Search Engine Caching Process under EU and US Copyright Laws

In fact, search engines operate as filters for the abundance of information available online; moreover, they represent the essential online techniques within the functioning of the Internet. The importance of search engines is undeniable. In fact, some of the most popular search engines such as Google, Yahoo, Bing and Ask receive billions and even trillions of requests every day. Generally, search engines can be represented as the virtual portals through which the Internet is actually experienced and online information is “properly” organized. Search engine caching is a complex process and may be viewed as a solution to the Internet congestion and traffic. It can benefit end users by providing “cached” links to the relevant information; however, it increases potential legal risk by copying protected content without authorization. This paper examines the search engines caching process and their potential liability for copyright infringement in both EU and US legal systems. The first part of the analysis will explore the general aspects and “nature” of caching process, its benefits and drawbacks for online environment. The second part will consider the potential liability of search engines and lawfulness of caching process.This paper will analyze the European Union and United States legal approaches to possible violation of copyright by search engines and “available” defenses, which can be applied to Online Service Providers (OSPs), particularly, application of Fair Use doctrine, Digital Millennium Copyright Act (DMCA) provisions, exemptions and limitations under Information Society Directive and E-Commerce Directive’s “safe harbor” provisions.

United Kingdom Copyright Decisions and Legislative Developments 2016

This report highlights the main UK copyright decisions in 2016, which relate to the definition of “substantial part” in the context of copyright infringement, the interaction between the fair dealing provisions and the Information Society Directive, the relationship between copyright enforcement and competition law, the interaction between national legislation on copyright damages and the Enforcement Directive, and the effect of choice of law clauses on statutory rights conferred by the copyright legislation of other jurisdictions. It also discusses the repeal of Sec. 52 of the CDPA, which had previously limited the term of copyright protection for artistic works that had been exploited through industrial manufacturing to 25 years from the date of first marketing.

Cloud computing and copyright law: cloud-based video recording reaches the CJEU

In the context of national proceedings opposing VCAST Limited and Italian television broadcaster Reti Televisive Italiane S.p.A. (RTI), the Court of Turin (Italy) referred questions about the interpretation of article 5(2)(b) of the Information Society Directive. The referring court essentially asks the CJEU whether the private copying exception should be interpreted as covering reproductions of protected works made through a cloud-based video recording platform.What is crucial for the case currently pending before the CJEU is that the private copying exception is only applicable when the reproduction is made by a natural person, as opposed to a legal person, for ends that are neither directly nor indirectly commercial. I argue, like the U.S. Court of Appeals for the Second Circuit in the Cablevision case, that it is the individual user, not the platform operator, who makes the copies. Accordingly, I conclude that the CJEU should interpret the private copying exception as extending to cases like VCAST's.

A court-ordered graduated response system in Ireland: the beginning of the end?

The Irish High Court recently became the first court to order a ‘common law’ based graduated response system (GRS) to deal with the problem of unauthorized peer-to-peer (P2P) file-sharing of sound recordings on the Internet. Such systems have previously been the subject of legislative measures in other EU Member States such as the Hadopi Law in France. A small number of voluntary arrangements have also arisen on a pan-industry basis such as the recent Creative Content UK initiative. In Ireland, the largest Internet service provider (ISP), Eircom, voluntarily agreed to adopt a type of GRS as part of a settlement. No court has previously ordered a GRS and the music industry was previously unsuccessful in obtaining such a relief in Ireland in 2010. This article examines the history of P2P file-sharing litigation in Ireland from Norwich Pharmacal order ten years ago to the more recent attention on GRS. The article examines the recent case of Sony v UPC Communications Ireland Limited, where a GRS was ordered under Article 8(3) of the Information Society Directive. While this recent decision is currently under appeal, there are multiple issues that the court had to consider which demonstrate how difficult it is to craft an Order to provide for a GRS. This begs the question of whether the cost and complexity of such a relief is better left to the legislature and that is why courts, such as the Australian High Court in Roadshow Films Pty v iiNet Ltd, have previously declined to grant such relief.

United Kingdom Copyright Decisions 2015

This report highlights the main UK copyright decisions in 2015, which relate to the judicial review of the UK Government’s decision to implement an exception permitting the making of personal copies for private uses, the compatibility of a national exception on the reception and retransmission of broadcasts with the Information Society Directive, website blocking injunctions, the application of the Enforcement Directive, the application of the US fair use doctrine, and copyright protection of dramatic formats.

Private Copying and Fair Compensation: An Empirical Study of Copyright Levies in Europe

Following the Information Society Directive of 2001 (introducing the concept of “fair compensation” for private copying into EU Law), total collection from levies on copying media and equipment in the EU tripled, from about €170m to more than €500m per annum. Levy schemes exist now in 22 out of 27 Member States (with only the UK, Ireland, Malta, Cyprus and Luxembourg remaining outside). Despite their wide adoption, levy systems are little understood, both in respect of their rationale and their economic consequences. Tariffs are increasingly contested in court, leading to a large gap between claimed and collected revenues. The European Commission has announced “comprehensive legislative action” for 2012. This report offers the first independent empirical assessment of the European levy system as a whole. The research consolidates the evidence on levy setting, collection and distribution; reviews the scope of consumer permissions associated with levy payments; and reports the results of three product level studies (printer/scanners, portable music/video/game devices, and tablet computers), analysing the relationship between VAT, levy tariffs and retail prices in 20 levy and non�levy countries. Key findings: There are dramatic differences between countries in the methodology used for identifying leviable devices, setting tariffs, and allocating beneficiaries of the levy. There are levies on blank media in 22 EU countries, on MP3 players in 18 countries, on printers in 12 countries, on personal computers in 4 countries. Revenues collected per capita vary between €0.02 (Romania) and €2.6 (France). The distribution of levy revenues to recording artists is less than €0.01 per album These variations cannot be explained by an underlying concept of economic harm to rightholders from private copying The scope of consumer permissions under the statutory exceptions for private copying within the EU vary, and generally do not match with what consumers ordinarily understand as private activities In levy countries, the costs of levies as an indirect tax are not always passed on to the consumer. In competitive markets, such as those for printers, manufacturers of levied goods appear to absorb the levy. There appears to be a pan-European retail price range for many consumer devices regardless of levy schemes (with the exception of Scandinavia). In non-levy countries, such as the UK, a certain amount of private copying is already priced into retail purchases. For example, right holders have either explicitly permitted acts of format shifting, or decided not to enforce their exclusive rights. Commercial practice will not change as a result of introducing a narrowly conceived private copying exception. A more widely conceived exception that would cover private activities that take place in digital networks (such as downloading for personal use, or non-commercial adaptation and distribution within networks of friends) may be best understood not as an exception but as a statutory licence. Such a licence could include state regulated payments with levy characteristics as part of a wider overhaul of the copyright system, facilitating the growth of new digital services.

Coexisting digital exploitation for creative content and the private use exception

The private copy exception is a staple in most national copyright laws. It has its roots in the analogue era and has had its difficulties adapting to the new digital environment. The development of new forms of exploitations for protected content has put the exception under pressure. Relatively, new business models allow users to download and stream digital content on multiple devices at home and on-the-go. This article seeks to explore whether the private use exception under Article 5(2)(b) of the Information Society Directive (InfoSoc) is compatible with different online business models. First, the exception at the European level and at selected national levels (UK, FR, DE) is analysed as to its normative content. Second, limitations to the private use exception in the terms of use of download- and streaming-based services are compared and discussed as to their relation with the exception. Finally, the three-step test of Article 5(5) InfoSoc is applied to the private use exception in different scenarios. The article concludes with a brief summary of the findings.

Private Copying and Harm to Authors: Compensation versus Remuneration

This Article examines recently quashed UK approach towards private copying in the light of requirements imposed by art.5(2)(b) of the Information Society Directive. It shows that the proposition, upon which EU law is based and which assumes that private non-commercial copying causes or is likely to cause harm to authors, is based upon anecdotal evidence and has not been proven by any solid empirical study. The Article thus challenges the use of the concept of “compensation” with regard to private non-commercial copying. It also demonstrates that the lavish approach towards the interpretation of copyright holders’ exclusive rights, combined with a very restrictive and inflexible construction of copyright exceptions and limitations, can only worsen the current mass disregard of copyright law by the public. Copyright law that disregards those phenomena and stigmatizes activities considered as normal and innocuous by the majority of society tends to be largely ignored by those targeted by the law.

Destereotyping the Copyright Wars: The 'Fair Use vs. Closed List' Debate in the EU

The paper critically addresses the alleged lack of flexibility of the closed list of limitations to copyright. It calls into question the established idea that the closed catalogue of Article 5 of the Information Society Directive has been preventing European courts from accommodating new technology-enabled uses of copyrighted works. Particularly, it analyses the judicial approach on both sides of the Atlantic to three of these uses: thumbnails, caching and downloading. The conclusion reached in the paper is twofold: (i) European courts frequently interpret limitations in an ample fashion, rendering emerging unauthorized uses non-infringing, despite the absence of a limitation whose letter expressly harbors them; (ii) the outcomes courts reach in Europe and in the U.S. are largely convergent, in spite of the doctrinal differences. The analysis suggests that the main problem with closed lists of limitations is the legal uncertainty they generate – the opposite of what is commonly touted as being their main advantage.

Are the new ‘fair dealing’ provisions an improvement on the previous UK law, and why?

In October 2014 the parody exception came into force in UK copyright law. Finally taking the opportunity offered by the Information Society Directive, s 30A CDPA 1988 now provides a fair dealing exception for the purpose of caricature, parody or pastiche. The recent guidance on the interpretation of the exception issued by the Court of Justice of the European Union (CJEU) in in Deckmyn and Vrijheidsfonds VZW v Vandersteen, C-201/13, EU:C:2014:2132 makes it timely to review the possible impact of the provision.The impact of the exception is hard to predict for two reasons. First, the subject matter is delicate to define as it covers a myriad of different uses. Secondly, owing to the form of the exception, no factors are provided by the legislator. This article revisits English case law in light of the guidance provided by the CJEU to determine the likely scope of the exception. The article then seeks the potential impact of the exception by considering musical parodies, one of the oldest forms of the genre, on the music industry, which represents one of the most lucrative and complex creative sectors.This article argues that, while the exception is an improvement on the old law, its success depends on its interpretation by the courts. Additionally, its effectiveness will be impaired if business practices do not reflect the principles underlying this new exception.

The British private copying exception and its compatibility with the Information Society Directive

The British private copying exception and its compatibility with the Information Society Directive