Mireille van Eechoud is professor of Information Law,
and directs the IViR's Information Law master programme.
A key research theme in Van Eechoudís current work is
the emergent regulatory framework for open public sector
data. Of special interest is the relationship between
rights of access as enshrined in freedom of information
laws and the (commercial) use of public sector
Another important field of research is international and
European intellectual property law, especially
copyright, related rights and database protection. A key
book in this field, co-authored with Hugenholtz et al.
is Harmonizing European Copyright Law. The Challenges
of Better Law Making (Kluwer Law International
2009). Van Eechoud is project leader of a
multidisciplinary research project on
creativity and collaborative authorship in copyright law (2010-2013). It is a
collaborative research project funded by
in which IViR partners with Infomedia (University of
Bergen, Norway) and the Centre for Intellectual Property
and Information Law (University of Cambridge, United
Ever since her doctoral thesis Choice of law in
copyright and related rights, Alternatives to the lex
protectionis (Kluwer Law International 2003), the
private international law aspects of information law
have been another recurrent theme in her work. Van
Eechoud was a member of the European Max-Planck Group
for Conflict of Laws in Intellectual Property (CLIP), a
group that developed principles and provide independent
advice to European and national law-makers. As a member
of the International Law Associationís committee on
Intellectual Property and Private International Law
her work in this area continues.
From September 2009 through August 2012 Van Eechoud was
based in the United Kingdom as a visiting scholar at
the Faculty of Law of the University of Cambridge.
Conflict of Laws in Intellectual Property: The CLIP
Principles and Commentary, European Max
Planck Group on Conflict of Laws in Intellectual
Oxford University Press 2013.
The Conflict of Laws in
Intellectual Property (CLIP) Principles address
issues of private law for disputes involving
intellectual property rights. They were produced by
a Max Planck Institute research project, in which
the authors of this work were heavily involved. The
Principles are intended to provide a model European
framework to respond to the increasing need for
guidance on the applicable law. They represent a
significant body of work which will help to inform
developing practice on applicable law and conflict
throughout the field.
This new work presents the Principles, alongside
article-by-article commentary and notes, which
analyse thoroughly the context of the rule within
the Principles, as well as within the existing legal
solutions at the national, European and
international level. It also explores the policy
considerations underlying the rule, enabling a
better understanding of why the Principles adopt the
solutions laid out in the rules. Useful references
are provided to the relevant legal provisions and
cases dealing with the respective issues of
intellectual property and private international law.
Government Works, in: A Century of Dutch
Copyright Law. Auteurswet 1912-2012,
A.A. Quaedvlieg & D.J.G. Visser (eds.), Amsterdam:
deLex 2012, 554 pp.
(with K. Janssen)
LAPSI Policy Recommendations on Rights of Access to
Public Sector Information.
This paper was
written in the context of the European Commission funded
thematic network on Legal Aspects of Public Sector
Information ('LAPSI'). The reliance on national access
norms is an important feature of the EUís re-use
framework, of which Directive 2003/98/EC on the re-use
of public sector information is a central feature. It
impacts the kinds of policy choices that can be expected
to be effective in stimulating commercial and
non-commercial re-use of public sector information by
private actors (businesses, civil society organizations,
individual citizens, etc.). In this paper we assess in
more detail the relationship between the PSI Directive
and (statutory) rights of access and duties to disclose
information under national laws and European law (the
latter especially in the area of environmental law).
The conclusion is that despite the fact that access
to information is increasingly recognized
internationally as a fundamental right, the nuts and
bolts of it will remain squarely a national affair for
the foreseeable future, environmental information
excepted. This makes it especially important that EU
re-use policies and instruments enable public sector
bodies in Member States to work within their existing
access infrastructure, in terms of local divisions of
competences, procedures and control over pro-active
dissemination of information. If the requirements
imposed under EU re-use law do not align with local
freedom of information laws, it may produce a negative
effect on transparency. Not only that, it may also
adversely affect conditions for fostering (commercial)
Along the Road to Uniformity - Diverse Readings of the
Court of Justice Judgments on Copyright Work,
2012-1, p. 60-80.
For a long time, EU
law's impact on the meaning of copyright work seemed
limited to software and databases. But recent
judgments of the CJEU (Infopaq, BSA, Football
Association [Murphy], Painer) suggest we have
entered an era of harmonization of copyright subject
matter after decades of focus on the scope of
exclusive rights and their duration. Unlike before,
however, it is the Court and not the legislator that
takes centre stage in shaping pivotal concepts. This
article reviews the different readings and
criticisms evoked by the recent case law on
copyright works in legal doctrine across the EU. It
puts them in the wider perspective of the
on-going-development towards uniform law and the
role of the preliminary reference procedure in that
Multiple defendants and territorial intellectual
property rights: Painer revisits Roche through Freeport,
Conflict of Laws.net.
The Painer judgment from
1 December 2011 (Case C-145/10) signals a departure
from the strict formalist-territorial approach to
jurisdiction in intellectual property matters. The
Court of Justice of the EU says that joining
defendants under art. 6(1) Brussels Regulation is
not precluded Ďsolely because actions against
several defendants for substantially identical
copyright infringements are brought on national
legal grounds which vary according to the Member
States concernedí. The
Advocate General took to heart the criticism
unleashed by the Courts
Roche judgment on multiple defendants
jurisdiction, citing among others the position of
the European Max Planck Group on Conflict of Laws in
Intellectual Property (CLIP).
The Court follows suit.
Friends or Foes? Creative Commons, Freedom of
Information Law and the European Union Framework for
Reuse of Public Sector Information in:
L. Guibault and
Angelopoulos (ed.) Open Content Licensing From
Theory to Practice, Amsterdam: Amsterdam University
Press, 2011, p. 169-202.
Freedom of information
law is, first and foremost, an instrument that helps to
effectuate democratic control of public administration,
by giving citizens rights to access government held
But access rights are also associated with broader
benefits. Government data has economic value beyond the
public sector, as it can be used for private sector
provision of information services and products.
Enhancing commercial exploitation of public sector
information has, in recent years, become part of
national and European economic policy.
Access for both democratic and economic purposes has
implications for how intellectual property rights in
government information are exercised. This chapter
explores the role of copyright policy in light of the
objectives and principles behind freedom of information
law and the regulatory framework for the reuse of public
sector information. More specifically, it queries
whether open content licenses, such as Creative Commons
(CC), are indeed as attractive an instrument for the
management of intellectual property in government
information as they appear to be.
S.J. van Gompel,
B. van der Sloot
& P.B. Hugenholtz)
Report of the Netherlands for ALAI 2011 Study Days
S. van Gompel,
L. Guibault and
Harmonizing European Copyright Law: The Challenges of
Better Lawmaking, Information Law Series 19, Alphen
aan den Rijn: Kluwer Law International 2009.
todayís 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 ísecurityí
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
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
Unionís 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
EUís 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.
van der Wal)
commons licensing for public sector information:
Opportunities and pitfalls, Institute for
Information Law, 2007.
The Creative Commons
model seems an attractice instrument for public sector
bodies that seek to enhance transparent access to
their information, be it for purposes of democratic
accountability or re-use for economic or other uses.
This study examined that hypothesis and highlights the
major opportunities and pitfalls of the Creative
Commons model for public sector information. It
assesses where there is a match between the creative
commons model and the principles of freedom of
information law and the Public Sector Information
Directive (EC Directive 2003/98 on the re-use of
public sector information) as implemented in the new
chapter V-A of the Dutch Freedom of Information Act
(Wet Openbaarheid van Bestuur). The assessment was
made not only at the more principled, abstract level,
but also at the level of the individual licensing
terms. It is preceded by an analysis of government
information as subject of intellectual property
rights, under the Dutch Copyright Act and the Database
Comments on the European Commission's Proposal for a
Regulation on the Law Applicable to Contractual
Obligations ("Rome I") of December 15, 2005
and the European Parliament Committee on Legal Affairs'
Draft Report on the Proposal of August 22, 2006.
Max-Planck Group for Conflict of Laws in Intellectual
Property (CLIP) analyses in these comments the effects
on intellectual property contracts of the proposed
Rome I regulation on the law applicable to contractual
obligations. CLIP argues that the European legislator
should not introduce a rule on the law applicable tot
contracts relating to intellectual property rights in
Art. 4 of the future Rome I-Regulation, or introduce
at least a more flexible one.
Suggestions for amendment of the Brussels I regulation
with respect to Exclusive jurisdiction and cross border
intellectual property (patent) infringement.
In consequence of ECJ
judgments C-4/03 - GAT v. LuK and C-539/03 - Roche
Nederland v. Primus, handed down on 13 July 2005, it
appears no longer feasible for a national court to
allow for consolidation of claims against a person
infringing parallel intellectual property rights
registered in different Member States, and/or to
accept a joinder of claims against multiple defendants
engaged in concerted actions. It is feared that this
will entail considerable impediments for an efficient
enforcement of intellectual property rights, in
particular of patents. In these comments, the European
Max-Planck Group for Conflict of Laws in Intellectual
Property (CLIP) suggests the adverse affects of the
ECJ's rulings should be cured. This can be done by
revising the drafting of article 22(4) and article 6
of the Brussels Regulation on Jurisdiction and
Enforcement of Foreign Judgments in Civil and
Commercial Matters (44/2001).
Guibault, G. Westkamp, T. Rieber-Mohn, P.B.
Hugenholtz, et al.),
on the Implementation and Effect in Member States' laws
of Directive 2001/29/EC on the Harmonisation of Certain
Aspects of Copyright and Related Rights in the
Information Society, report to the European
Commission, DG Internal Market, February 2007.
commissioned by the European Commission, examines the
application of Directive 2001/29/EC in the light of
the development of the digital market. Its purpose is
to consider how Member States have implemented the
Directive into national law and to assist the
Commission in evaluating whether the Directive, as
currently formulated, remains the appropriate response
to the continuing challenges faced by the stakeholders
concerned, such as rights holders, commercial users,
consumers, educational and scientific users. As set
out in specifications of the study set out by the
Commission, its aim is "to assess the role that
the Directive has played in fostering the digital
market for goods and services in the four years since
its adoption". The impact of the Directive on the
development of digital (chiefly online) business
models, therefore, will be the focal point of our
enquiry throughout this study.
Hugenholtz, S.J. van Gompel
Recasting of Copyright & Related Rights for the
Knowledge Economy, report to the European
Commission, DG Internal Market, November 2006, 308 p.
See also the
Study carried out by
the Institute for Information Law for the European
Commission (DG Internal Market). Chapters 1 and 2
describe and examine the existing 'acquis
communautaire' in the field of copyright and related
(neighbouring) rights, with special focus on
inconsistencies and unclarities. Chapters 3-6 deal
with distinct issues that were identified a priori by
the European Commission as meriting special attention:
possible extension of the term of protection of
phonograms (Chapter 3), possible alignment of the term
of protection of co-written musical works (Chapter 4),
the problems connected to multiple copyright
ownership, including the issue of 'orphan works'
(Chapter 5), and copyright awareness among consumers
(Chapter 6). Chapter 7 provides an overall assessment
of the benefits and drawbacks of the fifteen years of
harmonisation of copyright and related rights in the
EU and dwells on regulatory alternatives.
public sector information. Delineating the issues,
in: L. Guibault
Hugenholtz (eds.), The Future of the Public
Domain - Identifying the Commons in Information Law,
Information Law Series 16, The Hague: Kluwer Law
position of broadcasters and other media under
"Rome II": Proposed regulation on the law
applicable to non-contractual obligations, IRIS
plus (Supplement to IRIS - Legal observations of
the European Audiovisual Observatory), 2006-10.
There is also a German
translation of this article.
The EU are in the
advanced stages of legislating conflict of laws rules
for torts, with the adoption by the Council of a
common position on the proposed Rome II regulation on
the law applicable to non-contractual obligations. In
this contribution, a critical look is taken at this
private international law instrument and its impact on
the broadcasting and media industries. The legislative
background and objectives of Rome II are set out,
followed by an introduction to its general rules.
Special attention is paid to questions of intellectual
property, unfair competition and violations of
interests in personality (including defamation).
to the Lex Protectionis as the Choice-of-Law Rule for
Initial Ownership of Copyrightí, in: J. Drexl
& A. Kur (eds.), Intellectual Property and
Private International Law, IIC Studies, vol. 24,
Oxford: Hart Publishing 2005, p. 289-307.
in international copyright doctrine has it that the
law of the country for whose territory protection is
claimed governs copyright issues - whether it concerns
existence, scope, duration, ownership, transfer or
infringement. The Berne Convention of 1886 and other
international copyright treaties do not lay down the
lex protectionis as conflict rule, contrary to what is
often assumed. This paper addresses the drawbacks of
the lex protectionis for the initial ownership issue.
It assesses alternative conflict rules that can
increase legal certainty, while giving due respect to
the diversity in national allocation regimes. There is
a case to be made for the development of
creator-oriented conflict rules for initial ownership
issues, particularly if they also serve legal
certainty by identifying a single governing law. Such
rules may be construed using the main allocation
principles of modern European private international
|Choice of Law in
Copyright and Related Rights. Alternatives to the Lex
Protectionis. Information Law Series 12, The Hague:
Kluwer Law International 2003. ISBN 9041120718. (Thesis
Amsterdam UvA, promotores: Prof. mr. Th.M. de Boer and prof.
mr. P.B. Hugenholtz).
Den Haag 21 december 2000 (De Telegraaf / NVM)
(sequel to NVM-case below), published in Mediaforum
2001-3, nr. 11.
bij Pres. Rb. Den Haag 12 september 2000 (NVM/De
Telegraaf), published in Mediaforum
2000-11/12, nr. 76.
Dutch legal comment
on the ruling of District Court The Hague of October
10, 2000 in the case of NVM v. De Telegraaf, on
database protection for data on the housing market.
Injunction against operator of search engine.
inzake rechtsmacht in burgerlijke zaken,
published in Computerrecht 2000-2, p. 113-115.
Analysis of draft
European Union Regulation on jurisdiction in
commercial and civil matters of January 2000 (in
bij GvEA EG 6 april 2000 (Kuijer vs. Raad EU),
published in Mediaforum 2000-5, nr. 32.
Legal comment (in
Dutch) on the ruling of the Court of First Instance of
the European Union on public access to documents held
by the Council of the European Union (Case T-83/96).
tot U - Brussel verordent openbaarheid EU-documenten,
published in Mediaforum 2000-3, p. 73-79.
Critical review (in
Dutch) of the proposal for a Regulation on public
access to documents of the European Union of January
2000 (eq. government in the sunshine legislation,
freedom of information act).
schadekant van het gelijk, published in Mediaforum
1999-13, p. 341-342.
Contribution to the
special Mediaforum issue 1999-13 in honour of
Prof. Schuijt, on the development of emotional damages
awarded in cases of defamation and other wrongful
publications (in Dutch).
bij Pres. Rb. Dordrecht 8 september 1998 (KPN /
Kapitol), published in AMI/Informatierecht
1999-1, p. 10-12.
Legal Comment (in
Dutch) on the ruling of the District Court of
Dordrecht (The Netherlands) in the case of KPN (major
telecommunications company) v. Kapitol, a Belgium firm
that allegedly ripped KPNís cd-rom with
telephone-subscriber information and put it on its
bij Gerecht van Eerste Aanleg EG 17 juni 1998, zaak
T-174/95, Zweedse Journalistenbond vs. Raad van de
Europese Unie, published in Mediaforum
1998-9, nr. 41.
Comment (in Dutch) on
case T-174/95 of the European Court of First Instance
on public access to public sector information.
bij Gerecht van Eerste Aanleg EG 19 maart 1998, zaak
T-83/96 (Van der Wal & Nederland vs. Commissie),
published in Mediaforum 1998-6, nr. 30.
Legal comment (in
Dutch) on the ruling of the Court of First Instance of
the European Union on public access to documents held
by the European Commission (case T-83/96).
exclusiviteit en markt: commercialisering van
overheidsinformatie, published in Mediaforum
1998-6, p. 177-184.
Analysis (in Dutch)
on commercial use of government information, esp.
issues involving intellectual property law, public
access or freedom of information law and competition