Study supported by the Open Society Foundations, 96 pp.
Chapter 7 of OECD report Enquiries Into Intellectual Property's Economic Impact, 2015.
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.
About ten years after a previous initiative to replace the Horserace Betting Levy was abandoned following a judgment from the Court of Justice (CJ),1 the UK government announced that it will introduce a Horserace Betting Right and repeal the Levy that to date has cross-subsidised horseracing. In this comment, the authors warn that the implementation of a Betting Right could be problematic from an EU law perspective. The UK government, and any other interested EU legislator, should reconsider the opportunity of a specifically devised betting right.
The purpose of this paper is to explore the legal consequences of the digitisation of cultural heritage institutions' archives and in particular to establish whether digitisation processes involve the originality required to trigger new copyright or copyright-related protection.<br /> As the European Commission and many MS reported, copyright and in particular "photographers rights" are cause of legal uncertainty during digitisation processes. A major role in this legally uncertain field is played by the standard of originality which is one of the main requirements for copyright protection. Only when a subject matter achieves the requested level of originality, it can be considered a work of authorship. Therefore, a first key issue analysed in this study is whether – and under which conditions – digitisation activities can be considered to be original enough as to constitute works (usually a photographic work) in their own right. A second element of uncertainty is connected with the type of work eventually created by acts of digitisation. If the process of digitisation of a (protected) work can be considered authorial, then the resulting work will be a derivative composed by two works: the original work digitally reproduced and the – probably – photographic work reproducing it. Finally, a third element of uncertainty is found in the protection afforded to "other photographs" by the last sentence of Art. 6 Term Directive and implemented in a handful of European countries.<br /> Accordingly, the paper is structured as follows: Part I is dedicated to the analysis of copyright law key concepts such as the originality standard, the definition of derivative works and the forms of protection available in cases of digital (or film-based) representations of objects (photographs). The second part of the study is devoted to a survey of a selection of EU Member States in an attempt to verify how the general concepts identified in Part I are applied by national legislatures and courts. The selected countries are Germany, France, Spain, Italy, Poland, the Netherlands and the UK. The country analysis fulfils a double function: on the one hand it provides a specific overview of the national implementation of the solutions found at international and EU level. On the other hand, it constitutes the only possible approach in order to analyse the protection afforded by some MS to those "other photographs" (also called non original photographs or mere/simple photographs) provided for by the last sentence of Art. 6 Copyright Term Directive. Part III presents some conclusions and recommendations for cultural heritage institutions and for legislatures.<br />
In 2013 the European Union amended the Directive on Public Sector Information, establishing the principle that all available information produced and collected by public sector institutions must be made available for reuse under open terms and conditions. The amended Directive also brings publicly funded libraries, museums and archives into its scope. These new rules on reuse of heritage materials, treated as public sector information (PSI), attempt for the first time to define a general framework for sharing cultural heritage information all around Europe. In this paper we argue that if Member States are not careful, the implementation of the changes required by the new Directive could do more harm than good when it comes to access to digitized cultural heritage in Europe. These concerns center on how the directive interacts with copyright legislation. The paper recommends that in order to contribute to the opening up of cultural heritage resources, Member States should ensure that all qualifying documents that are not currently covered by third party intellectual property rights fall within the scope of the Directive. Member States should also implement the Directive in a way that does not encourage or require institutions to charge for the reuse of works that they make available for reuse. For documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions that have these works in their collections, Member States should encourage the use of Open Definition-compliant licenses.
Report prepared by the T.M.C. Asser Instituut (Asser International Sport Law Centre) and the Institute for Information Law of the University of Amsterdam, for the European Commission, DG Education and Culture.
See also the <a href="http://www.adobe.com/products/acrobat/readstep2.html" target="_blank"><img border="0" height="10" src="http://www.ivir.nl/images/pdf-icon.gif" width="11" /></a> <a href="http://ec.europa.eu/sport/news/2014/docs/study-sor2014-executive-summary-gc-compatible_en.pdf" target="_blank"><span style="color:#bc0031;"> executive summary</span></a>.
The main objectives of the study were to map the legal framework applicable to the origin and ownership of rights to sports events (sports organizers' rights) in the 28 EU Member States; to analyze the nature and scope of sports organizers' rights with regard to licensing practices in the field of the media; and to examine the possibility of establishing licensing practices beyond the media field, notably in the area of gambling and betting. Following this, the study had to formulate recommendations on the opportunity of EU action to address any problems that may be identified in the abovementioned areas of analysis.
Design rights represent an interesting example of how the EU legislature has successfully regulated an otherwise heterogeneous field of law. Yet this type of protection is not for all. The tools created by EU intervention have been drafted paying much more attention to the industry sector rather than to designers themselves. In particular, modern, digitally based, individual or small-sized, 3D printing, open designers and their needs are largely neglected by such legislation. There is obviously nothing wrong in drafting legal tools around the needs of an industrial sector with an important role in the EU economy, on the contrary, this is a legitimate and good decision of industrial policy. However, good legislation should be fair, balanced, and (technologically) neutral in order to offer suitable solutions to all the players in the market, and all the citizens in the society, without discriminating the smallest or the newest: the cost would be to stifle innovation. The use of printing machinery to manufacture physical objects created digitally thanks to computer programs such as Computer-Aided Design (CAD) software has been in place for quite a few years, and it is actually the standard in many industrial fields, from aeronautics to home furniture. The change in recent years that has the potential to be a paradigm-shifting factor is a combination between the opularization of such technologies (price, size, usability, quality) and the diffusion of a culture based on access to and reuse of knowledge. We will call this blend Open Design. It is probably still too early, however, to say whether 3D printing will be used in the future to refer to a major event in human history, or instead will be relegated to a lonely Wikipedia entry similarly to ³Betamax² (copyright scholars are familiar with it for other reasons). It is not too early, however, to develop a legal analysis that will hopefully contribute to clarifying the major issues found in current EU design law structure, why many modern open designers will probably find better protection in copyright, and whether they can successfully rely on open licenses to achieve their goals. With regard to the latter point, we will use Creative Commons (CC) licenses to test our hypothesis due to their unique characteristic to be modular, i.e. to have different license elements (clauses) that licensors can choose in order to adapt the license to their own needs.”
With contributions by Nils Dietrich, Lucie Guibault, Thomas Margoni, Krzysztof Siewicz, Gerald Spindler and Andreas Wiebe.
See also the <a href="/syscontent/uploads/2013_12_19_dd3e185ee06e75e52a34b728b28e8488"><span style="color: rgb(178, 34, 34);">summary of findings</span></a>
In: 3D printing: destiny, dream or doom?, B. van den Berg, S. van der Hof, C. Mair (eds.), Leiden: Leiden University Press 2013, p. 39-61.
Deep Packet Inspection (DPI) is a set of methodologies used for the analysis of data flow over the Internet. It is the intention of this paper to describe technical details of this issue and to show that by using DPI technologies it is possible to understand the content of Transmission Control Protocol/Internet Protocol communications. This communications can carry public available content, private users information, legitimate copyrighted works, as well as infringing copyrighted works.<br /> Legislation in many jurisdictions regarding Internet service providers’ liability, or more generally the liability of communication intermediaries, usually contains “safe harbour” provisions. The World Intellectual Property Organization Copyright Treaty of 1996 has a short but significant provision excluding liability for suppliers of physical facilities. The provision is aimed at communication to the public and the facilitation of physical means. Its extensive interpretation to cases of contributory or vicarious liability, in absence of specific national implementation, can prove problematic. Two of the most relevant legislative interventions in the field, the Digital Millennium Copyright Act and the European Directive on Electronic Commerce, regulate extensively the field of intermediary liability. This paper looks at the relationship between existing packet inspection technologies, especially the ‘deep version,’ and the international and national legal and regulatory interventions connected with intellectual property protection and with the correlated liabilities ‘exemptions. In analyzing the referred two main statutes, we will take a comparative look at similar interventions in Australia and Canada that can offer some interesting elements of reflection.
Copyright legislation, at least in its implementation, can be seen as a triumph of international harmonisation. However, in the area of joint works this is not the case. In the comparison of a North American and a European country this article observes very different outcomes, despite the similar statutory definitions in copyright legislation. However, the explanation for the divergence of application is not to be found in copyright law, but rather the parts of property law that deal with tenancy in common. Starting from this observation, the article uses comparative analysis of rules and remedies available in both systems and concludes with recommendations towards a more fair and efficient framework.
Despite the lack of unanimity among European nations on how to treat so-called scientific and critical editions, most of these nations agree on the major proposition that this kind of work should attract some kind of protection under neighbouring rights doctrines in their copyright codes. Canada has no such provisions. This article explores the neighbouring rights protection in some European nations and shows that Canadian publishers of such editions should be aware of the diverse range of protection that they are given in Europe and the potential liability of Canadian publishers.
Concomitant with the increased market appeal of cloud-based services, there is growing concern over issues of privacy within the architecture. In this paper, we analyze what is meant by the term privacy from a legal perspective, and how the meaning of cloud computing and their operation may be affected in at least one jurisdiction. We also look at some possible solutions to addressing privacy in clouds.
Sophisticated network management is now very common. However, the legal consequences in terms of the liabilities, whether civil or criminal, of the Service Provider in connection with the type of management used have been poorly explored. In this work in progress, we identify the research questions, the methodology and work hypotheses of our future research.
Increasingly the digital content used in everyday life has little or no human intervention in its creation. Typically, when such content is delivered to consumers it comes with attached claims of copyright. However, depending on the jurisdiction, approaches to ownership of computer-generated works vary from legislated to uncertain. In this paper we look at the various approaches taken by the common law, such as in Canada, and the legislative approach taken in the United Kingdom. The options for how computer-generated works may be treated and suggestions for their best placement in copyright are discussed.
Free Libre Open Source Software (FLOSS) is characterised by a specific programming and development paradigm. The availability and freedom of use of source code are at the core of this paradigm, and are the prerequisites for FLOSS features. Unfortunately, the fundamental role of code is often ignored among those who decide the software purchases for Canadian public agencies. Source code availability and the connected freedoms are often seen as unrelated and accidental aspects, and the only real advantage acknowledged, which is the absence of royalty fees, becomes paramount. In this paper we discuss some relevant legal issues and explain why public administrations should choose FLOSS for their technological infrastructure. We also present the results of a survey regarding the penetration and awareness of FLOSS usage into the Government of Canada. The data demonstrates that the Government of Canada shows no enforced policy regarding the implementation of a specific technological framework (which has legal, economic, business, and ethical repercussions) in their departments and agencies.
The issue of what discriminatory use of a network means has arisen in two recent decisions of the United States and Canadian federal communications commissions, the FCC and the CRTC respectively. The topic is a contemporary and hotly debated one, as when a course is fixed it will strongly influence the future of the Internet. It can be stated as the dichotomy of open and competitive or closed and oligopolistic. A study and comparison of the two different approaches is vital to clarify the debate, and hopefully guide Canadian policy in a direction that will benefit the whole community.
Position Paper Nexa Center for Internet and Society, 2009.