Annotatie bij EHRM 10 januari 2013 (Ashby Donald c.s. / Frankrijk) Prof. mr. P.B. Hugenholtz
NJ, 2015-14, nr. 121, p. 1367-1373.
Strafrechtelijke veroordeling wegens auteursrechtinbreuk door modefotografen. Geen sprake van debat van algemeen belang. Zeer ruime beoordelingsmarge bij afweging van door het EVRM en Eerste Protocol beschermde belangen, waartoe auteursrechten van modehuizen behoort. Geen inbreuk artikel 10 EVRM.
Digital Consumers and the Law: Towards a Cohesive European Framework Mr. dr. L. Guibault , Prof. dr. N. Helberger , Mr. drs. B. van der Sloot , M.B.M. Loos, C. Mak, L. Pessers,
Information Law Series, nr. 28, Alphen aan den Rijn: Kluwer Law International 2013,
This book provides a critical analysis of how digitisation affects established concepts and policies in consumer law. Based on evidence of the actual experience and problems encountered by consumers in digital markets, the book offers a ground-breaking study of the main issues arising in relation to the application of general consumer and sector-specific law. An interdisciplinary team of researchers from the Centre for the Study of European Contract Law (CSECL) and the Institute for Information Law (IViR), both University of Amsterdam, combine their expertise in general consumer and contract law, telecommunications law, media law, copyright law and privacy law in a joint effort to point the way to a truly cohesive European Framework for Digital Consumers and the Law. Topics in this book include the characteristics of digital content markets and how they relate to traditional consumer law; consumer concerns, reasonable expectations and how they are protected by law; the difficult question of the classification of digital content; legal questions triggered by prosumers and underage consumers; the feasibility and future of the information approach to consumer protection; the role of fundamental rights considerations, and the legal implications of an economy that uses personal data as the new currency. Digital Consumers and the Law is an important analysis for all those interested or involved in the regulation of digital content markets. With its comprehensive discussion of a wide range of fundamental as well as praxis-oriented questions, it is an essential read for academics, policy makers, members of the content industry as well as consumer representatives.
Search engine freedom: On the implications of the Right to Freedom of Expression for the Legal Governance of Web Search Engines Dr. J.V.J. van Hoboken
Information Law Series , nr. 27, Alphen aan den Rijn: Kluwer Law International 2012,
In this book, the author explores how search media can be incorporated into freedom of expression doctrine, as well as media and communications law and policy more generally. And the book develops a theory of the legal relations between national governments and search media providers on the one hand and between end-users and information providers on the other. Among the many issues covered are the following: role of government under the right to freedom of expression; lack of transparency about the ranking and selection of search results; search engine and ISP intermediary liability; filtering by access providers; freedom of expression and the governance of public libraries; the search engine market, its business model and the separation rule for advertising; search engine self-regulation; user profiling and personalization; decisions and actions for which search engines should be able to claim protection. The analysis draws on specific legal developments under Article 10 of the European Convention on Human Rights and the United States First Amendment, and investigates issues of diversity, pluralism, and freedom of expression as they relate to editorial control in other media. The author concludes with recommendations regarding search engine governance and the proper role of government, indicating which existing elements of the regulatory framework for search media can be improved and offering directions for future legal and empirical research. Considering the ever-growing cultural, political, and economic importance of the Internet and the World Wide Web in our societies, and the societal interests involved in the availability of effective search tools, this first in-depth legal analysis of search engine freedom will prove indispensable to the many practitioners and policymakers concerned with freedom of expression in the digital age
Formalities in Copyright Law: An Analysis of Their History, Rationales and Possible Future Dr. S.J. van Gompel
Information Law Series, nr. 23, Alphen aan den Rijn : Kluwer Law International 2011,
Verkrijgbaar bij Wolters Kluwer.
At present, copyright is ‘automatic’. From the moment an original work is created, the author enjoys all the benefits that copyright protection entails, without the need to complete a registration, deposit the work, mark it with a copyright notice, or comply with any other statutorily prescribed formality. However, the digital revolution has caused a paradigm shift in the way copyright-protected works are created and consumed. Copyright law is now facing significant challenges arising from the need to establish legal certainty over copyright claims, improve rights clearance, and enhance the free flow of information. Inevitably, proposals to introduce formalities in copyright law (or reintroduce them, as the absence of formalities has not always been the norm) have risen to prominence in legal debate. This book examines whether reintroducing copyright formalities is legally feasible. Based on a comprehensive and thorough analysis of copyright formalities, it sets out to establish the extent to which the current copyright system allows for their reintroduction. To this end, the author describes the role and functions of formalities, revisits the history of formalities at the national and international levels, examines the scope of the international prohibition on formalities, and scrutinizes the rationales behind this prohibition, including an in-depth examination of the validity of the argument that copyright is a ‘natural right’ and therefore should be protected independently of formalities. The author skilfully evaluates and contrasts the conflicting theories according to which formalities, on the one hand, add legal certainty to claims on the ownership of property, and, on the other, hamper individual authors from seeking adequate protection for their works. This book makes an important contribution to legal science by answering questions that so far have been neglected or only marginally addressed. To the degree that current copyright law permits reintroducing formalities, the author posits the specifications that will determine to a great extent what role and functions they may eventually fulfil: depending on the aims to be achieved, lawmakers must choose which types of formalities shall be imposed, and what their legal consequences shall be. This book goes a long way towards reinforcing the foundation for those decisions.
Codes of Conduct and Copyright Enforcement in Cyberspace Prof. mr. P.B. Hugenholtz in: Copyright Enforcement and the Internet, I.A. Stamatoudi (ed.),
Information Law Series, nr. 21, Alphen aan de Rijn : Kluwer Law International 2010, 303-320 pp.
This chapter critically examines the rise of codes of conduct that deal with copyright enforcement. Its focus will be on codes binding ISPs and other online intermediaries offering similar services, such as providers of user-generated content (UGC) platforms. While solutions in the United States and elsewhere will occasionally be discussed, its regional focus will be on the European Union. Following the Introduction, section II commences by offering a general typology of self-regulation, including discussion of the advantages and disadvantages of self-regulatory approaches and of the legal nature and normative effect of codes of conduct. Section III describes statutory law on copyright law, liability and enforcement, which serves as background law to self-regulatory copyright enforcement schemes. Section IV describes and critically assesses actual codes of conduct dealing with copyright enforcement. Section V offers conclusions.
The European Concern with Copyright and Related Rights Dr. S.J. van Gompel , Mr. dr. L. Guibault , Prof. mr. M.M.M. van Eechoud ,
In: Harmonizing European Copyright Law: The Challenges of Better Lawmaking, Information Law Series, nr. 19, Alphen aan den Rijn: Kluwer Law International 2009.
Harmonizing European Copyright Law: The Challenges of Better Lawmaking Dr. S.J. van Gompel , Prof. mr. M.M.M. van Eechoud , Mr. dr. L. Guibault , Prof. dr. N. Helberger , Prof. mr. P.B. Hugenholtz ,
Information Law Series, nr. 19, Alphen aan den Rijn: Kluwer Law International 2009,
Hoofdstuk 1: The European Concern with Copyright and Related Rights;
Hoofdstuk 9:The Last Frontier: Territoriality;
Nobody likes today’s copyright law. Widespread unauthorized use of copyright material proliferates with impunity, while citizens and users protest that intrusive copyright and related rights law stifle cultural expression. Equipment manufacturers and intermediaries complain about yet more ’security’ features that complicate their products and services and encumber marketing, while content owners desperately want enforcement to work. And of course it is crucial that whatever regulatory instruments come into play must not age prematurely in Internet time. The European Union faces the daunting challenge of articulating coherent copyright policies that satisfy these contradictory multiple demands. Yet the legal framework must conform to the European Union’s remit of fostering economic growth in a common market, while respecting the national traditions of its still growing family of Member States. Clearly, an extraordinary balancing act is called for if justice is to be done to all of the private and public interests affected. So how has the European acquis communautaire scored on these issues so far? In this groundbreaking study the Institute for Information Law of the University of Amsterdam brings its extensive academic expertise to bear on this question. The authors scrutinize the present law as laid down in the seven copyright and related rights directives, against the background of the relevant international standards of the Berne Convention, the TRIPs agreement, and the WIPO Internet Treaties. They map out in detail the degree to which certain areas of copyright have been harmonized as they expose the gaps and inconsistencies in the acquis and the urgent unresolved issues that persist. They identify the EU’s ambitions in relation to its present and future competences (following the Lisbon Reform) to regulate copyright, and to its Better Regulation agenda. Following a comprehensive analysis of almost two decades of regulatory intervention, they move on to the salient current trends that point toward a more coherent and balanced European copyright law.
Wrapping Information in Contract: How Does it Affect the Public Domain? Mr. dr. L. Guibault in: The Future of the Public Domain - Identifying the Commons in Information Law, L. Guibault & P.B. Hugenholtz,
Information Law Series, nr. 16, The Hague: Kluwer Law International 2006, 87-104 pp.
Contracts are an essential tool in the distribution of information. If a specific element of information has any commercial value at all, its access and use will most likely be governed by the terms of a license, whether it is protected by an intellectual property or not. The central question addressed in this chapter is whether the use of contracts with respect to the distribution of public domain information bears any impact on the supply of information and on the composition of the public domain. Would contracts that restrict the use of public domain information or limit the exercise of uses privileged under the law be actually enforced by the courts? If so, would the use of contracts in the trade of information tend to increase the amount of information available to the public anyway? Or would it, on the contrary, withdraw from the public domain some elements of information that were until then freely available?
The Future of the Public Domain - Identifying the Commons in Information Law Mr. dr. L. Guibault , Prof. mr. P.B. Hugenholtz ,
Information Law Series, nr. 16, The Hague: Kluwer Law International 2006,
Zie ook hoofdstuk 1: The Future of the Public Domain. An Introduction.
The presence of a robust public domain is an essential precondition for cultural, social and economic development and for a healthy democratic process. But the public domain is under pressure as a result of the ongoing march towards an information economy.
This book takes a broad, 'information law' oriented approach towards the question of preservering the public domain, in which a wide range of interrelated legal questions converge.
Thirteen contributions from academia worldwide make up the present book, addressing the future of the public domain from a different angle. In addition, all authors were invited to reflect upon the notion and role of the public domain in the context of information law and policy.
Controlling Access to Content: Regulating Conditional Access in Digital Broadcasting Prof. dr. N. Helberger
Information Law Series, nr. 15, Den Haag: Kluwer Law International ,
Zie ook de samenvatting van het proefschrift:
Control of access to content has become a vital aspect of many business models for modern broadcasting and online services. Using the example of digital broadcasting, the author reveals the resulting challenges for competition and public information policy and how they are addressed in European law governing competition, broadcasting, and telecommunications. Controlling Access to Content explores the relationship between electronic access control, freedom of expression and functioning competition. It scrutinizes the interplay between law and technique, and the ways in which broadcasting, telecommunications, and general competition law are inevitably interconnected.
Choice of Law in Copyright and Related Rights. Alternatives to the Lex Protectionis Prof. mr. M.M.M. van Eechoud
Information Law Series, nr. 12, Den Haag: Kluwer Law International 2003,
Copyright Limitations and Contracts - An Analysis of the Contractual Overridability of Limitations on Copyright, Information Law Series Mr. dr. L. Guibault
Information Law Series, nr. 9, London / The Hague / Boston: Kluwer Law International 2002, pp.
Traditional copyright law strikes a delicate balance between an author’s control of original material and society’s interest in the free flow of ideas, information, and commerce. In today’s digitally networked environment, this balance has shifted dramatically to one side, as powerful rights holders contractually impose terms and conditions of use far beyond the bounds set by copyright law. This vitally significant book explores this conflict from its gestation through its current manifestations to its future lineaments and potential consequences. Focusing on statutory copyright limitations that enshrine constitutional rights such as freedom of expression and privacy, foster dissemination of knowledge, safeguard competition, and protect authors from market failure, Copyright Limitations and Contracts clearly explains the rationale for these limitations and questions the legality of overriding them by contractual means. The author finds a complex array of factors clouding the emergence of coherent rules in the matter, among them the nature of the contract (e.g., fully negotiated vs. “shrink-wrap”), the respective interests of the parties involved, and the legislated policy of particular regimes. She points out that the United States’ new Uniform Computer Information Transactions Act (UCITA), which is likely to be adopted by many U.S. States and influence similar legislation in many other countries, leaves this crucial issue essentially unresolved. Among the author’s many startling insights is that, contrary to the commonly held notion that the Internet is a bastion of free speech, in fact it is now possible (via encryption technology) for the first time in human history to exercise absolute control over copyrighted material, even under circumstances of global mass distribution. As we become more and more aware that the intersection of copyright and contract reveals one of the deepest and most far-reaching contradictions of our time, this illuminating analysis will be of extraordinary value to jurists in every area of public and private law.