Projects

Activities

Lucie Guibault

Publications

Collective management in the European Union

Guibault, L.

van Gompel, S.

18-05-2017

Remuneration of authors of books and scientific journals, translators, journalists and visual artists for the use of their works

Europe Economics

Guibault, L.

Salamanca, O.

Final report. A study prepared for the European Commission, DG Communications Networks, Content & Technology

A new EU study looks at the remuneration paid to authors in the print sector in ten EU countries (United Kingdom, France, Germany, Italy, Spain, Poland, Ireland, the Netherlands, Hungary and Denmark). The study was conducted to support policy-making in the area of copyright. The Commission is looking for evidence on whether, and to what extent, the differences that exist amongst the Member States' legislative frameworks affect levels of remuneration and the functioning of the internal market.

07-10-2016

International copyright reform in support of open legal information (working paper draft, Sep. 2016)

Guibault, L.

van Eechoud, M.

Paper for Open Data Research Symposium Madrid 2016

This paper analyzes the status of legal information under international and national copyright laws. It argues that the current uncertainties with respect to the copyright status of primary legal materials (legislation, court decisions) and secondary legal materials such as parliamentary records and other official texts relevant to the interpretation of law, constitute a barrier to access and use. The time has come for reform of the international copyright system in WIPO. International law should recognize explicitly that primary and secondary legal materials are public domain and thus not subject to copyright or related rights. This will bring outdated copyright norms across the world up to date with current developments: the trend towards universal recognition of the right to access government information as part of human rights, the UN’s sustainable development goals with respect to access to law, and the rapid growth of open government policies worldwide, supported by the Open Government Partnership (OGP).

30-09-2016

Les aléas du livre numérique aux Pays-Bas

Guibault, L.

15-12-2015

Legal aspects of open access to publicly funded research

Guibault, L.

Margoni, T.

Internet growth, content digitisation, and expanding “big data” and data analytics capabilities have affected the ways in which publicly funded research results are accessed, disseminated and used. While these technological advances have made sharing and processing information easier, that does not change the fact that the information may be protected by IP laws. Open access efforts, which aim to make the outputs of publicly funded research more widely accessible in digital formats, therefore raise a number of IP policy questions. To explain the interplay between open access and IP laws, this chapter provides an overview of the IP regimes that protect research outputs in a sample of OECD jurisdictions. It then reviews the open access policies that are in place in some of those jurisdictions and examines two contexts in which IP questions can arise when open access principles are applied: public/private partnerships and text and data mining.

17-09-2015

Remuneration of authors and performers for the use of their works and the fixations of their performances

Guibault, L.

Salamanca, O.

van Gompel, S.

This study was carried out for the European Commission by Europe Economics and Lucie Guibault, Olivia Salamanca and Stef van Gompel of the University of Amsterdam (IViR). 
ISBN 9789279471629
DOI: 10.2759/834167

See also: http://ec.europa.eu/digital-agenda/en/news/commission-gathers-evidence-remuneration-authors-and-performers-use-their-works-and-fixations

This study analyses the current situation regarding the level of remuneration paid to authors and performers in the music and audio-visual sectors. We compare, from both a legal and economic perspective, the existing national systems of remuneration for authors and performers and identify the relative advantages and disadvantages of those systems for them. We also explore the need to harmonise mechanisms affecting the remuneration of authors and performers, and to identify which ones are the best suited to achieve this. Their potential impact on distribution models and on the functioning of the Internal Market is also examined. Finally, the study outlines a series of policy recommendations based on the analysis conducted.
The information and views set out in this report are those of the author(s) and do not necessarily reflect the official opinion of the Commission. The Commission does not guarantee the accuracy of the data included in this report. Neither the Commission nor any person acting on the Commission’s behalf may be held responsible for the use which may be made of the information contained therein.

18-08-2015

Study on Copyright Limitations and Exceptions for Museums

Guibault, L.

This study investigates the issue of limitations and exceptions to copyright for the benefit of museums, with a view to strengthening the international understanding of the need to have adequate limitations, exploring existing and proposed models of protection, and moving towards agreement regarding specific exceptions or limitations.

02-07-2015

Extended collective licensing: panacee voor massadigitalisering?

Guibault, L.

Hugenholtz, P.

van Gompel, S.

Onderzoek in opdracht van het Ministerie van OCW, Amsterdam, 1 september 2014.

In dit rechtsvergelijkend onderzoek wordt geanalyseerd welke voor- en nadelen de invoering van een wettelijk stelsel van extended collective licensing (‘verruimde’ collectieve licentieovereenkomsten) kan hebben om de rights clearance van digitaliseringsprojecten van erfgoedinstellingen te vergemakkelijken. Daarbij wordt een vergelijking gemaakt met de situatie waarin collectieve licenties zonder ondersteunende wettelijke maatregelen tot stand komen. De jurisdicties die zijn onderzocht zijn Denemarken, Noorwegen, Duitsland en Nederland.

19-12-2014

Standardisation in the area of innovation and technological development, notably in the field of Text and Data Mining

Guibault, L.

Handke, C.

Hargreaves, I.

Martens, B.

Valcke, P.

Report from the Expert Group.

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

Digital Consumers and the Law: Towards a Cohesive European Framework

B. van der Sloot, d.

Guibault, L.

Helberger, N.

Loos, M.

Mak, C.

Pessers, L.

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.

31-01-2013

Clash of cultures - integrating copyright and consumer law

Guibault, L.

Helberger, N.

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

Flexible Copyright: The Law and Economics of Introducing and Open Norm in the Netherlands

Akker, I.

Breemen, J.

Guibault, L.

Poort, J.

van der Noll, R.

van Gompel, S.

Weda, J.

Rapport in opdracht van het Ministerie van Economische Zaken, Landbouw en Innovatie, SEO-rapport nr. 2012-60, augustus 2012.
Zie ook aanbiedingsbrief Tweede Kamer.

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

The Press Exception in the Dutch Copyright Act

Guibault, L.

Published in P.B. Hugenholtz, A. Quaedvlieg, D. Visser (eds.), A Century of Dutch Copyright Law, Amsterdam, deLex, 2012, pp. 443-475.

30-10-2012

Digital content contracts for consumers

Guibault, L.

Helberger, N.

Loos, M.

Mak, C.

Pessers, L.

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

B. van der Sloot, d.

Baidoo, D.

Guibault, L.

Helberger, N.

Kadouch, A.

Loos, M.

Mak, C.

Pessers, L.

Report 1: Country reports, Centre for the Study of European Contract Law (CSECL) & Institute for Information Law (IViR), 2012.

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

Solving Europeana's mass-digitization issues through Extended Collective Licensing?

Axhamn, J.

Guibault, L.

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

Brussels Memorandum of Understanding inzake digitalisering en online beschikbaarstelling van out-of-commerce boeken en tijdschriften

Guibault, L.

Op 20 september 2011 werd in Brussel middels een Memorandum of Understanding ('MoU') tussen diverse belanghebbenden overeenstemming bereikt over een clearingmodel voor de digitalisering en online beschikbaarstelling door culturele instellingen van zogenaamde 'out-of-commerce' boeken en tijdschriften. Deze bijdrage bespreekt de drie in het MoU gekozen principes en de daarin gebezigde belangrijkste begrippen.

22-02-2012

The Netherlands: Darfurnica, Miffy and the right to parody!

Guibault, L.

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

The Regulation of Digital Content Contracts in the Optional Instrument of Contract Law

Guibault, L.

Helberger, N.

Loos, M.

Mak, C.

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

Analysis of the applicable legal frameworks and suggestions for the contours of a model system of consumer protection in relation to digital content contracts ( )

B. van der Sloot, d.

Cseres, K.

Guibault, L.

Helberger, N.

Loos, M.

Mak, C.

Pessers, L.

Tigner, R.

Final report, comparative analysis, law & economics analysis, assessment and development of recommendations for possible future rules on digital content contracts.

Zie voor meer informatie ook de website van de Europese Commissie.

23-11-2011

Friends or Foes? Creative Commons, Freedom of Information Law and the European Union Framework for Reuse of Public Sector Information

Angelopoulos, C.

Guibault, L.

van Eechoud, M.

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 information. 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.

11-10-2011

Cross-border extended collective licensing: a solution to online dissemination of Europe’s cultural heritage?

Axhamn, J.

Guibault, L.

Onderzoek in opdracht van EuropeanaConnect, Amsterdam, Instituut voor Informatierecht, augustus 2011.

06-09-2011

Report of the Netherlands

Guibault, L.

06-09-2011

Owning the Right to Open Up Access to Scientific Publications

Guibault, L.

13-07-2011

Open Content Licensing from Theory to Practice - An Introduction

Guibault, L.

13-07-2011

Collective Management in the European Union,

Guibault, L.

van Gompel, S.

In: Collective Management of Copyright and Related Rights, D. Gervais (ed.), 2de dr., Alphen aan de 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

Creative Commons and Related Rights in Sound Recordings: Are the Two Systems Compatible?

Angelopoulos, C.

Angelopoulos, C.

Guibault, L.

Can the will of the author cancel her copyright? The Creative Commons licensing system depends on a positive answer to this question, and indeed, in the area of copyright proper, for the most part this is the case. But the related rights of performers and phonogram producers are a different matter: in addition to their exclusive rights, performers and phonogram producers are also granted a right to equitable remuneration for the use of their phonograms in communications to the public or broadcasting by wireless means. Given that, in many EU Member States the right to equitable remuneration has been implemented in the form of a (waivable or non-waivable) compulsory licensing scheme, while, even where a voluntary license scheme is in place, the functional reality of collecting societies will limit the flexibility that this will allow right-owners, the following question arises: is the legal framework of related rights and the collective management systems in place for the exploitation of these rights compatible with the use of Creative Commons licenses? This book chapter attempts to answer this complicated question with regard to the law of the two EU Member States of the UK and the Netherlands. The issue is examined against the backdrop of the innovative flexible collective management pilot project was initiated for musical works between Buma/Stemra, the Dutch collecting society for music authors and publishers, and Creative Commons Netherlands, the Dutch branch of Creative Commons. The chapter concludes that, when contemplating the application of Creative Commons licenses to musical works in the context of the user’s obligation to pay equitable remuneration to the performer and phonogram producer for use of a phonogram in a communication to the public or broadcast, three main circumstances must be kept in mind: (a) Whether the work has been published for commercial purposes; (b) Whether the work is offered by the user on an interactive, on-demand basis; (c) What type of licensing scheme is established in the country in question for the management of the right.

13-07-2011

Open Content Licensing from Theory to Practice

Angelopoulos, C.

Guibault, L.

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

Creative Commons Licenses: What to Do with the Database Right?

Guibault, L.

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

Annotatie bij Rb. Amsterdam 20 mei 2009 (Iglesias & Jungle Aire / Sony BMG)

Guibault, L.

Overdracht en licentiëring van naburige rechten. Aanhoudende contractuele verhouding tussen uitvoerend kunstenaar en platenmaatschappij waarbij een reeks overeenkomsten werd gesloten voor en na de inwerkingtreding van de WNR. Vraag of deze overeenkomsten ook betrekking hebben op digital exploitatiemogelijkheden. Uit de aard en strekking van de overeenkomsten volgt geen rechtenoverdracht, maar wel een onbeperkte en exclusieve licentie, die ook op de digitale exploitatiemogelijkheden betrekking heeft.

14-10-2010

Why Cherry Picking Never Leads to Harmonisation: The Case of the Limitations on Copyright under Directive 2001/29/EC

Guibault, L.

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

User-Created-Content: Supporting a participative Information Society, Final Report

Angelopoulos, C.

Guibault, L.

Helberger, N.

E. Swart

van Eijk, N.

van Hoboken, J.

Studie in opdracht van de Europese Commissie, uitgevoerd door IDATE, TNO en IViR.

28-10-2009

Harmonizing European Copyright Law: The Challenges of Better Lawmaking

Guibault, L.

Helberger, N.

Hugenholtz, P.

van Eechoud, M.

van Gompel, S.

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

The European Concern with Copyright and Related Rights

Guibault, L.

van Eechoud, M.

van Gompel, S.

In: Harmonizing European Copyright Law: The Challenges of Better Lawmaking, Information Law Series, nr. 19, Alphen aan den Rijn: Kluwer Law International 2009.

13-10-2009

Auteursrecht en Open leermiddelen

Guibault, L.

Onderzoek in opdracht van Kennisnet.

08-07-2009

Creative Commons: Struggling to ‘Keep it Simple’

Guibault, L.

06-05-2009

Evaluatie van de artikelen 29a en 29b van de Auteurswet 1912

Guibault, L.

Mom, G.

Onderzoek in opdracht van het WODC (Ministerie van Justitie).

De komst van de digitale netwerkomgeving als een commercieel levensvatbaar platform voor het verspreiden van auteursrechtelijk beschermd materiaal, heeft het noodzakelijk gemaakt de bescherming van de rechthebbenden op dit materiaal (de 'content') te versterken en uit te breiden. Deze studie beoogt de achtergrond en werking van de Nederlandse bepalingen betreffende de rechtsbescherming van technische voorzieningen en van informatie over het beheer van rechten (artikelen 29a en 29b Auteurswet) beknopt te inventariseren en analyseren.

26-03-2008

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

Guibault, L.

Helberger, N.

Hugenholtz, P.

Rieber-Mohn, T.

van Eechoud, M.

Westkamp, G.

Rapport aan de Europese Commissie, DG Interne Markt, februari 2007. Zie ook Part II: Country Reports on the Implementation of Directive 2001/29/EC in the Member States, G. Westkamp, Queen Mary Intellectual Property Research Institute, februari 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

Collective Management in the European Union

Guibault, L.

van Gompel, S.

In: Collective Management of Copyright and Related Rights, Daniel Gervais (red.), The Hague: Kluwer Law International 2006, p. 117-152.

20-03-2007

Wrapping Information in Contract: How Does it Affect the Public Domain?

Guibault, L.

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

The Recasting of Copyright & Related Rights for the Knowledge Economy

Guibault, L.

Helberger, N.

Hugenholtz, P.

van Eechoud, M.

van Gompel, S.

Rapport aan de Europese Commissie, DG Interne Markt, november 2006, 308 p.
Zie ook de 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

The Future of the Public Domain - Identifying the Commons in Information Law

Guibault, L.

Hugenholtz, P.

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.

16-06-2006

Unravelling the myth around open source licences : An analysis from a Dutch and European law perspective

Guibault, L.

van Daalen, O.

Zie ook de "draft"-versie van dit boek.

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.

01-02-2006

Copyright Law and Consumer Protection

Guibault, L.

Helberger, N.

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

Vous qui téléchargez des oeuvres de l'Internet, pourrait-on savoir qui vous êtes?

Guibault, L.

03-11-2004

Copyright contract law: towards a statutory regulation?

Guibault, L.

Hugenholtz, P.

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).

06-08-2004

Auteurscontractenrecht: naar een wettelijke regeling?

Guibault, L.

Hugenholtz, P.

Onderzoek in opdracht van het WODC (Ministerie van Justitie), augustus 2004.

Deze studie, die is verricht in opdracht van het WODC (Ministerie van Justitie), strekt ertoe de behoefte aan specifieke wettelijke maatregelen in Nederland te inventariseren. In het onderzoek ligt het accent op de vanuit auteursrechtelijk of nabuurrechtelijk oogpunt meest wezenlijke aspecten van de exploitatieovereenkomst: formele vereisten, de omvang en interpretatie van de rechtenverlening, het recht op vergoeding, derdenwerking van de rechtenverlening en de mogelijkheid van herziening en beëindiging van de overeenkomst. Op basis van de bevindingen worden de hoofdlijnen van een mogelijke wettelijke regeling geschetst.

21-07-2004

Study on the conditions applicable to contracts relating to intellectual property in the European Union

Berghuis, M.

Guibault, L.

Hugenholtz, P.

M.A.R. Vermunt, m.

Eindrapport, studie in opdracht van de EG, mei 2002.

The cross-border exploitation of copyrighted works or performances has increased dramatically in recent years. This development is evident in respect of such ‘borderless’ media such as broadcasting and information services provided online. However, more traditional sectors of the information and entertainment industries, such as book publishing and film production, are also undergoing a process of rapid internationalisation, particularly within the European Union. As a consequence, contractual relationships between authors or performers on the one hand, and publishers, broadcasters or producers on the other hand, are increasingly taking on an international dimension. In view of the differences that presently exist at the national level regarding the law applicable to copyright contracts, this process of internationalisation has, inevitably, prompted the question whether some form of harmonisation at the European level is called for. This is the central question of this study.

27-06-2002

Copyright Limitations and Contracts - An Analysis of the Contractual Overridability of Limitations on Copyright, Information Law Series

Guibault, L.

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.

12-02-2002

Agreements between Authors or Performers and Collective Rights Societies: Comparative Study of Some Provisions

Guibault, L.

Report prepared for the 1997 ALAI Congress held in Montebello

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 in two main chapters, the first one dealing with the contractual relationship between members and the society, and the second one examing the extent to which members may participate in the operations of the society.

01-01-2001

Les programmes d'ordinateur et le droit d'innovation technologique

Guibault, L.

Text in French. This articles 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 borrows known avenues 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 application, the exclusive rights granted and their limitations, the formalities for acquisition and the duration of the protection.

01-01-2001

Pre-emption Issues in the Digital Environment: Can Copyright Limitations Be Overridden by Contractual Agreements under European Law?

Guibault, L.

21-02-1999

Limitations found outside of copyright law

Guibault, L.

General report prepared for the ALAI STUDY DAYS Cambridge, September 14-17, 1998: The Exceptions And Limitations To Copyright.

12-01-1999

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