Dutch 
Staff

Lucie Guibault
Associate professor
 
Institute for Information Law (IViR)

Visiting address
Korte Spinhuissteeg 3
1012 CG Amsterdam
The Netherlands

Post address
Kloveniersburgwal 48
1012 CX Amsterdam
The Netherlands

kamer B2.03
tel: +31 20 - 525 39 47
fax: +31 20 - 525 30 33
e-mail: L.Guibault@uva.nl
 


Curriculum Vitae

Dr. Lucie Guibault is associate professor at the Institute for Information Law of the University of Amsterdam (UvA). She studied law at the Université de Montréal (Canada) and received in 2002 her doctorate from the University of Amsterdam, where she defended her thesis on Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright.

She is specialized in international and comparative copyright and intellectual property law. Lucie Guibault has been carrying out research for the European Commission, Dutch ministries, UNESCO and the Council of Europe. Her main areas of interest include copyright and related rights in the information society, open content licensing, collective rights management, limitations and exceptions in copyright, and author’s contract law. She has been involved as legal partner in Creative Commons Netherlands since 2005 and in projects related to Europeana (EuropeanaConnect and Europeana Awareness) since 2009.

She is in charge of the coordination of the IViR International Copyright Law Summer Course. Dr. Guibault is member of the international editorial board of Les Cahiers de propriété intellectuelle, member of the editorial board of the Journal of Intellectual Property and Information Technology (JIPITEC), and correspondent for the Netherlands for Computer Law Review International (CRi).

 
Publications
Trouver le diamant dans la mine de données ou les implications juridiques de l'exploration de données, Documentaliste-Sciences de l'Information, 2014-2, p. 23-25.

05.09.2014


(with I. Hargreaves, C.W. Handke, P. Valcke, B. Martens) Standardisation in the area of innovation and technological development, notable in the field of Text and Data Mining, report from the Expert Group, European Commission, Luxembourg: Publications Office of the European Union, 2014.
ISBN 9789279367434.

Text and data mining (TDM) is an important technique for analysing and extracting new insights and knowledge from the exponentially increasing store of digital data ('Big Data'). It is important to understand the extent to which the EU's current legal framework encourages or obstructs this new form of research and to assess the scale of the economic issues at stake.

08.04.2014


(with A. Wiebe, ed.) Safe to be open: Study on the protection of research data and recommendations for access and usage, OpenAIRE+, Universitätsverlag Göttingen, 2013, 168 p.

See also the summary of findings.

19.12.2013


Licensing Research Data under Open Access Conditions, in: D. Beldiman (ed.), Information and Knowledge: 21st Centurt Challenges in Intellectual Property and Knowledge Governance, Cheltenham: Edward Elgar, forthcoming 2013.

09.04.2013


(with N. Helberger, M.B.M. Loos, C. Mak, L. Pessers & B. van der Sloot) Digital Consumers and the Law: Towards a Cohesive European Framework, Kluwer Law International: Alphen aan den Rijn 2013.
ISBN: 9789041140494.

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.

See more details about the book here.

31.01.2013


(with R. van der Noll, S.J. van Gompel, J. Weda, J. Poort, I. Akker & J.M. Breemen) Flexible Copyright: The Law and Economics of Introducing and Open Norm in the Netherlands, study commissioned by the Dutch Ministry of Economic Affairs, Agriculture & Innovation, SEO-rapport nr. 2012-60, Amsterdam, August 2012.

This study analyses the law and economics of introducing flexibility in the system of exceptions and limitations in Dutch copyright law. Flexibility would exist in an open norm, on the basis of which the courts can decide whether certain uses of copyrighted material are permissible or not, instead of explicitly defining this in the law. The report assesses problem areas where the lack of flexibility creates legal disputes and potential barriers to innovation and production. The core of the study concerns the analysis of the economic rationale and effects of introducing flexibility in the Dutch legal order in the form of an open norm.

01.11.2012


(with N. Helberger) Clash of cultures - integrating copyright and consumer law, info, 2012-6, p. 23-33.

In digital content markets, access to and use of digital content products are largely subject to contractual agreements and licensing conditions between suppliers and consumers. The fact that consumers acquire digital content by way of contractual arrangements implies that their relationship with the suppliers of these products is governed by two sets of rules: consumer law and copyright law. Attempts to integrate copyright and consumer law and policy and to accommodate the interests of the consumer of copyright protected content soon encounter conceptual and political challenges. The question that this article examines is what the main conceptual differences between consumer and copyright law, and the resulting ‘‘clash of cultures’’ are that need to be overcome before dealing successfully with copyright law related matters in consumer law.

01.11.2012


The Press Exception in the Dutch Copyright Act, in: A Century of Dutch Copyright Law. Auteurswet 1912-2012, P.B. Hugenholtz, A.A. Quaedvlieg & D.J.G. Visser (eds.), Amsterdam: deLex 2012, 554 pp.
ISBN: 9789086920372.

30.10.2012


(with N. Helberger, M.B.M. Loos, C. Mak & L. Pessers) Digital content contracts for consumers, Journal of Consumer Policy, 6 July 2012.

The application of consumer law to digital content contracts encounters a number of obstacles. Some of these are rather typical for digital content markets, e.g., the legal consequences of the classification of digital content as “goods” or “services” and, more importantly, the absence of general benchmarks to evaluate the conformity of digital content. Other problems, such as the limited usefulness of consumer information and the position of underage consumers, are not as such reserved to digital consumers, but they are amplified in the digital content markets. Moreover, particular attention is paid to the complex relationship between copyright law and consumer law. This paper explores the extent to which consumer (contract) law is fit to address the problems faced by digital consumers wishing to enjoy the benefits of digital content and examines whether the on-going initiatives at national and European level are likely to provide relief. Finally, recommendations for improvement are put forward in cases where the analysis shows that the problems identified are not or are insufficiently solved by these initiatives.

13.09.2012


Digital content services for consumers: Comparative analysis of the applicable legal frameworks and suggestions for the contours of a model system of consumer protection in relation to digital content services, Report 1: Country reports, Centre for the Study of European Contract Law (CSECL) & Institute for Information Law (IViR), 2012, 432 pp.

The Centre for the Study of European Contract Law (CSECL) and the Institute for Information Law (IViR) were commissioned by the European Commission to conduct a study on digital content services for consumers. This report contains the country reports of 9 Member States - Finland, France, Germany, Hungary, Italy, The Netherlands, Poland, Spain and the United Kingdom - and two legal systems from outside the EU, i.e. Norway and the United States. The country reports contain the responses of national experts to a questionnaire developed by the CSECL and the IViR.

02.03.2012


(with J. Axhamn) Solving Europeana's mass-digitization issues through Extended Collective Licensing? Nordiskt Immateriellt Rättsskydd, 2011-6, p. 509-516.

The ever increasing use of the Internet and of digitization technologies have opened up new possibilities for distributing and accessing creative content online, including for cultural heritage institutions. However, the digitization and dissemination of a substantial proportion of the collections held by European cultural institutions maybe considerably hindered due to high transaction costs related to clearance of copyright and related rights. This holds equally true for the cultural institutions taking part in the Europeana project. A recent study - Cross-border extended collective licensing: a solution to online dissemination of Europe's cultural heritage - examines whether the Nordic 'extended collective licensing' (ECL) model could provide a viable solution to the problems of digitization and dissemination of copyright protected works held by cultural heritage institutions, with a brief incursion into the issue of the cross-border dissemination of works. This article summarises the main findings of the study.

22.02.2012


The Netherlands: Darfurnica, Miffy and the right to parody! JIPITEC, 2011-3, p. 236-248.

The legal community of the Netherlands let out a sigh of relief in May 2011 when the judgment of the District Court of The Hague in preliminary proceedings was handed down in the Darfurnica case. The same feeling of satisfaction prevailed, more recently, when the Court of Appeal of Amsterdam rendered decision in the Miffy case. Both decisions, rendered on appeal, overruled the judgments of first instance, which had given precedence to the protection of intellectual property rights above the user's freedom of expression in the form of parody. But freedom of expression, and parody in particular, are solidly anchored in the Dutch values and courts more often than not find in favour of the parodist. Apart from the fact that both decisions offer an interesting analysis of where the limit lies between intellectual property protection and artistic freedom, each decision deserves a few words of commentary in view of some noteworthy particularities.

22.02.2012


(with M.B.M. Loos, N. Helberger, C. Mak) The Regulation of Digital Content Contracts in the Optional Instrument of Contract Law, European Review of Private Law, 2011-6, p. 729-758.

The past decade has shown a rapid development of the markets for digital content. The further development of these markets, however, may be hindered because of the lack of a functioning legal framework to deal with digital content contracts. In this article, it is argued that the future Optional Instrument should contain rules governing digital content contracts. Moreover, suggestions are made as to the content of such rules.

04.01.2012


(with M.B.M. Loos, N. Helberger, C. Mak, L. Pessers, K.J. Cseres, B. van der Sloot & R. Tigner) Analysis of the applicable legal frameworks and suggestions for the contours of a model system of consumer protection in relation to digital content contracts, Final Report, Comparative analysis, Law & Economics analysis, assessment and development of recommendations for possible future rules on digital content contracts.

More information on the website of the European Commission.

23.11.2011


(with J. Axhamn) Cross-border extended collective licensing: a solution to online dissemination of Europe’s cultural heritage?, Amsterdam: Institute for Information Law August 2011. Final report prepared for EuropeanaConnect.

06.09.2011


(with K. van 't Klooster) Report of the Netherlands, to be published in R.M. Hilty & S. Nérisson (ed.), The Balance of Copyright, a Comparative Approach, Springer Verlag, 2011.

06.09.2011


Owning the Right to Open Up Access to Scientific Publications, in L. Guibault & C.J. Angelopoulos (ed.), Open Content Licensing: From Theory to Practice, Amsterdam: Amsterdam University Press, 2011, p. 137-167.

13.07.2011


Open Content Licensing from Theory to Practice - An Introduction, in L. Guibault & C.J. Angelopoulos (ed.), Open Content Licensing: From Theory to Practice, Amsterdam: Amsterdam University Press, 2011, p. 7-20.

13.07.2011


(with S.J. van Gompel) Collective Management in the European Union, in Daniel Gervais (ed.), Collective Management of Copyright and Related Rights, second edition, Alphen aan den Rijn: Kluwer Law International, 2010, p. 135-167.

This chapter examines efforts to regulate the collective management of copyright at the European level. It is divided in three main parts. First, the chapter describes the current state of the law concerning collective rights management organizations (CMOs) in Europe, as pronounced over the past few decades in decisions of the European Court of Justice and the European Commission in competition matters. Second, the chapter discusses the recent efforts deployed by the European lawmakers toward the establishment of a legal framework governing the activities of CMOs in Europe, and more specifically the multi-territorial licensing of online music services. The third part analyses the actual and potential impact on the market for the cross-border collective management of legitimate online music services of the most recent measures adopted by the European bodies. The chapter critically concludes on the overall state of the law in Europe pertaining to CMOs.

13.07.2011


(ed. with C.J. Angelopoulos) Open Content Licensing from Theory to Practice, Amsterdam: Amsterdam University Press, 2011.

This book assembles chapters written by renowned European scholars on a number of selected issues relating to open content licensing. It offers a comprehensive and objective study of the principles of open content from a European intellectual property law perspective and of their possible implementation in practice.

06.07.2011


(with  M.M.M. van Eechoud, S.J. van Gompel, B. van der Sloot & P.B. Hugenholtz) Report of the Netherlands for ALAI 2011 Study Days (Dublin).

19.05.2011


Creative Commons Licenses: What to Do with the Database Right?, Computers and Law Magazine, 'The Future of Open', 2011-6.

Contrary to other types of open content licenses, Creative Commons licenses are intended to be translated and adapted to the laws of a maximum of jurisdictions in the world. Local or regional peculiarities of the copyright regime can sometimes require an adaptation to the licenses that would disrupt their worldwide similarity. This article focuses on one of these peculiarities: the European sui generis database right. It describes how the database right was excluded from the scope of the Creative Commons licenses and discusses the possible consequences of such an exclusion for the Creative Commons movement and for the users of the licenses in Europe.

04.03.2011


Why Cherry Picking Never Leads to Harmonisation: The Case of the Limitations on Copyright under Directive 2001/29/EC, JIPITEC, 2010-2, p. 55-66.

The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list op exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look at three examples of limitations that have led to legislative changes at the Member State level as express measures towards the implementation of the Information Society Directive, that is, the limitations for the benefit of libraries, for teaching and research, and for persons with a disability. These exceptions and limitations were later on also identified by the European Commission as key elements in the deployment of a digital knowledge economy. The analysis will show that the implementation of the provisions on limitations in the Information Society Directive did not, and probably cannot, yield the expected level of harmonisation across the European Union and that, as a consequence, there still exists a significant degree of uncertainty for the stakeholders regarding the extent of permissible acts with respect to copyright protected works.

10.09.2010


(with N. Helberger, E.H. Janssen, N.A.N.M. van Eijk, C.J. Angelopoulos, J.V.J. van Hoboken, E. Swart, et al.) User-Created-Content: Supporting a participative Information Society, Final Report, Study carried out for the European Commission by IDATE, TNO and IViR, 2008.

28.10.2009


(with M.M.M. van Eechoud, P.B. Hugenholtz, S. van Gompel and N. Helberger) Harmonizing European Copyright Law: The Challenges of Better Lawmaking, Information Law Series 19, Alphen aan den Rijn: Kluwer Law International 2009.

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.

13.10.2009


Creative Commons: Struggling to ‘Keep it Simple’, in E. Schweighofer & P. Sint (Ed.), Conference Proceedings KnowRight 08, Wenen: Österreichische Computer Gesellschaft 2008, p. 75-83.

06.05.2009


Accommodating the Needs of iConsumers: Making Sure They Get Their Money’s Worth of Digital Entertainment, Journal of Consumer Policy, Volume 31, Issue 4 (2008), p. 409.d

01.11.2008


(with G. Westkamp, T. Rieber-Mohn, et al.) Study 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.

This study, 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.

22.03.2007


(with S.J. van Gompel) Collective Management in the European Union, also published in: Daniel Gervais (ed.), Collective Management of Copyright and Related Rights, The Hague, Kluwer Law International, 2006, p. 117-152.

09.03.2007


Wrapping Information in Contract: How Does it Affect the Public Domain? in: L. Guibault and P.B. Hugenholtz, The Future of the Public Domain - Identifying the Commons in Information Law, Information Law Series 16, The Hague: Kluwer Law International 2006, p. 87-104. 

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?

09.03.2007


P.B. Hugenholtz, M.M.M. van Eechoud, S.J. van Gompel, et al. The Recasting of Copyright & Related Rights for the Knowledge Economy, report to the European Commission, DG Internal Market, November 2006, 308 p.
See also the executive summary.

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.

10.01.2007


(with P.B. Hugenholtz, eds.) The Future of the Public Domain - Identifying the Commons in Information Law, Information Law Series 16, The Hague: Kluwer Law International 2006 (ISBN 9041124357).

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.

Read chapter 1: The Future of the Public Domain. An introduction.

16.06.2006


(with O.L. van Daalen) Unravelling the myth around open source licences : An analysis from a Dutch and European law perspective, Information technology & law series 8, The Hague: T.M.C. Asser Press 2006 (ISBN 9067042145).

This study gives an overview of the current legal situation regarding the use of open source software licences and investigates how the most commonly used open source software licences measure up to Dutch and European law.
By its in-depth analysis and clear conclusions, this book contributes to the understanding of this complex field that policy makers, regulators, and academics so crucially require. Taking the provisions of the GNU GPL, the BSD, and the Mozilla Public Licence as examples, it investigates the implications of open source licensing from a private law, copyright law and patent law perspective. It also takes a brief look at the issue of the enforcement of these licences. To facilitate the use and enforcement of open source software licences in Europe, and more particularly in the Netherlands, the authors conclude their study by making a number of recommendations for the adaptation of the licence terms with a view to enhancing their compliance with the legal requirements.

See also the draft version of this book.

01.02.2006


(with N. Helberger) Copyright Law and Consumer Protection, European Consumer Law Group, February 2005.
Policy conclusions of the European Consumer Law Group (ECLG) based on a study carried out by L. Guibault and N. Helberger.

The purpose of this study is to provide an overview of certain key aspects of the relationship between copyright law and consumer protection. More particularly, the paper concentrates on what would appear today as the most problematic issue, from the perspective of the consumer, understood in the narrow sense of the word, namely the implementation of technological protection measures (TPM) and digital rights management (DRM) systems and its implication for the exercise of the private use exemption.

20.05.2005


(with R. Melzer) 'The Legal Protection of Broadcast Signals', IRIS plus, 2004-10.

24.11.2004


A quand l'octroi de licences transfrontières pour l'utilisation de droits d'auteur et de droits voisins en Europe?’, Les Cahiers de Propriété Intellectuelle, vol. 16, 2004-HS (Hors série), p. 189-208.

03.11.2004


Vous qui téléchargez des oeuvres de l'Internet, pourrait-on savoir qui vous êtes?’, Revue du Droit des Technologies de l'Information, 2004-18, p. 9-31.

03.11.2004


(with P.B. Hugenholtz), Copyright contract law: towards a statutory regulation? Study conducted on commission for the department of Scientific Research and Documentation Centre (WODC) of the Dutch Ministry of Justice,August 2004 (Text in the Dutch language).

For an English translation of the Summary, please click here

06.08.2004


The nature and scope of limitations and exceptions to copyright and neighbouring rights with regard to general interest missions for the transmission of knowledge: prospects for their adaptation to the digital environment’, Copyright Bulletin December 2003.

Published 28.11.2003


The reprography levies across the European Union, L.M.C.R. Guibault, March 2003.

Published 29.04.2003


(with P.B. Hugenholtz & S.M. van Geffen), The Future of Levies in a Digital Environment’, March 2003.

Published 24.03.2003


(with R.B. Bakels & P.B. Hugenholtz), European Parliament Hearing on Software Patentability (Contribution IViR).

Published 27.11.2002


Le tir manqué de la Directive européenne sur le droit d'auteur dans la société de l'information, Cahiers de propriété intellectuelle, 2003/15, pp. 537-573.

Published 08.10.2002


(with P.B. Hugenholtz; assisted by M.A.R. Vermunt & M. Berghuis), Study on the conditions applicable to contracts relating to intellectual property in the European Union, final report, study commissioned by the EC (May 2002).

Published 27.06.2002


Copyright Limitations and Contracts. An Analysis of the Contractual Overridability of Limitations on Copyright, Information Law Series Vol. 9, London / The Hague / Boston: Kluwer Law International, February 2002, 392 pp., hardbound (ISBN 90-411-9867-9).

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.

Published 12.02.2002


Council of Europe, Discussion paper on the question of Exceptions to and limitations on copyright and neighbouring rights in the digital era, Strasbourg, October 1998.

Published 18.02.2002


'Pre-emption Issues in the Digital Environment: Can Copyright Limitations Be Overridden by Contractual Agreements under European Law?', in F.W. Grosheide & K. Boele-Woelki (red.), Molengrafica nr. 11. Europees Privaatrecht 1998. Opstellen over Internationale Transacties en Intellectuele Eigendom, Lelystad: Koninklijke Vermande 1998, p. 225-262.

Published 21.02.1999


'Limitations found outside of copyright law', General report prepared for the ALAI STUDY DAYS Cambridge, September 14-17, 1998: The Exceptions And Limitations To Copyright.

Published 12.01.1999


Agreements between Authors or Performers and Collective Rights Societies: Comparative Study of Some Provisions, Report prepared for the 1997 ALAI Congress held in Montebello, Canada, Montreal: ALAI Canada 1997.

Text in French - with the Introduction and a summary for each chapter translated into English. Available in paper format with ALAI Canada for $ 75. CDN.

In the context of the 1997 Congress of the Association Littéraire et Artistique Internationale (ALAI), entitled 'Protection of Authors and Performers through Contracts', the Canadian Group of ALAI wished to draw particular attention to the legal relationship existing between authors or performers and collective rights societies. The nature of the copyrights and neighbouring rights conferred by law, the legal framework surrounding the structure and operations of collective societies, their number in each territory and the presence of complementary professional associations are determining factors in the definition of the scope of protection granted to authors and performers. Taking these elements into account, this report analyzes around fifty agreements entered into by authors and performers on the one hand, and organizations whose activities consist of collecting and distributing copyrights and neighbouring rights, on the other hand. The study is divided into two main chapters, the first one dealing with the contractual relationship between members and the society, and the second one examining the extent to which members may participate in the operations of the society.

Published 01.01.2001


'Les programmes d'ordinateur et le droit d'innovation technologique', Cahiers de Propriété Intellectuelle (9) 1997-2, p. 171-202.

Text in French. This article discusses the legal protection of computer software and proposes the creation of a new sui generis right more suited to the characteristics of this technology. The proposal of a new technological innovation right arises from the experience acquired over the last twenty years with respect to computer software protection. The parameters of this new right are inspired by copyright law, patent law, integrated circuit topography law, as well as the new sui generis right on databases recognized in Europe. This article presents the technological innovation right: the scope of its application, the exclusive rights granted and their limitations, the formalities for acquisition and the duration of the protection.

Published 01.01.2001



Updated 05.09.2014