João Quintais, Author at IVIR

Impact of content moderation practices and technologies on access and diversity

Dergacheva, D., Katzenbach, C., Quintais, J., Riis, T., Schwemer, S.

2023, (D.6.3 Final Evaluation and Measuring Report).

How platforms govern users’ copyright-protected content: Exploring the power of private ordering and its implications

De Gregorio, G., Magalhães, J.C., Quintais, J.

In: Computer Law & Security Review, vol. 48, 2023.

@article{nokey,

title = {How platforms govern users’ copyright-protected content: Exploring the power of private ordering and its implications},

author = {Quintais, J. and De Gregorio, G. and Magalh\~{a}es, J.C.},

url = {https://www.ivir.nl/computer_law_and_security_review_2023/},

doi = {10.1016/j.clsr.2023.105792},

year  = {2023},

date = {2023-02-24},

journal = {Computer Law \& Security Review},

volume = {48},

abstract = {Online platforms provide primary points of access to information and other content in the digital age. They foster users’ ability to share ideas and opinions while offering opportunities for cultural and creative industries. In Europe, ownership and use of such expressions is partly governed by a complex web of legislation, sectoral self- and co-regulatory norms. To an important degree, it is also governed by private norms defined by contractual agreements and informal relationships between users and platforms. By adopting policies usually defined as Terms of Service and Community Guidelines, platforms almost unilaterally set use, moderation and enforcement rules, structures and practices (including through algorithmic systems) that govern the access and dissemination of protected content by their users. This private governance of essential means of access, dissemination and expression to (and through) creative content is hardly equitable, though. In fact, it is an expression of how platforms control what users \textendash including users-creators \textendash can say and disseminate online, and how they can monetise their content.



As platform power grows, EU law is adjusting by moving towards enhancing the responsibility of platforms for content they host. One crucial example of this is Article 17 of the new Copyright Directive (2019/790), which fundamentally changes the regime and liability of “online content-sharing service providers” (OCSSPs). This complex regime, complemented by rules in the Digital Services Act, sets out a new environment for OCSSPs to design and carry out content moderation, as well as to define their contractual relationship with users, including creators. The latter relationship is characterized by significant power imbalance in favour of platforms, calling into question whether the law can and should do more to protect users-creators.



This article addresses the power of large-scale platforms in EU law over their users’ copyright-protected content and its effects on the governance of that content, including on its exploitation and some of its implications for freedom of expression. Our analysis combines legal and empirical methods. We carry our doctrinal legal research to clarify the complex legal regime that governs platforms’ contractual obligations to users and content moderation activities, including the space available for private ordering, with a focus on EU law. From the empirical perspective, we conducted a thematic analysis of most versions of the Terms of Services published over time by the three largest social media platforms in number of users \textendash Facebook, Instagram and YouTube \textendash so as to identify and examine the rules these companies have established to regulate user-generated content, and the ways in which such provisions shifted in the past two decades. In so doing, we unveil how foundational this sort of regulation has always been to platforms’ functioning and how it contributes to defining a system of content exploitation.},

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Online platforms provide primary points of access to information and other content in the digital age. They foster users’ ability to share ideas and opinions while offering opportunities for cultural and creative industries. In Europe, ownership and use of such expressions is partly governed by a complex web of legislation, sectoral self- and co-regulatory norms. To an important degree, it is also governed by private norms defined by contractual agreements and informal relationships between users and platforms. By adopting policies usually defined as Terms of Service and Community Guidelines, platforms almost unilaterally set use, moderation and enforcement rules, structures and practices (including through algorithmic systems) that govern the access and dissemination of protected content by their users. This private governance of essential means of access, dissemination and expression to (and through) creative content is hardly equitable, though. In fact, it is an expression of how platforms control what users – including users-creators – can say and disseminate online, and how they can monetise their content.

As platform power grows, EU law is adjusting by moving towards enhancing the responsibility of platforms for content they host. One crucial example of this is Article 17 of the new Copyright Directive (2019/790), which fundamentally changes the regime and liability of “online content-sharing service providers” (OCSSPs). This complex regime, complemented by rules in the Digital Services Act, sets out a new environment for OCSSPs to design and carry out content moderation, as well as to define their contractual relationship with users, including creators. The latter relationship is characterized by significant power imbalance in favour of platforms, calling into question whether the law can and should do more to protect users-creators.

This article addresses the power of large-scale platforms in EU law over their users’ copyright-protected content and its effects on the governance of that content, including on its exploitation and some of its implications for freedom of expression. Our analysis combines legal and empirical methods. We carry our doctrinal legal research to clarify the complex legal regime that governs platforms’ contractual obligations to users and content moderation activities, including the space available for private ordering, with a focus on EU law. From the empirical perspective, we conducted a thematic analysis of most versions of the Terms of Services published over time by the three largest social media platforms in number of users – Facebook, Instagram and YouTube – so as to identify and examine the rules these companies have established to regulate user-generated content, and the ways in which such provisions shifted in the past two decades. In so doing, we unveil how foundational this sort of regulation has always been to platforms’ functioning and how it contributes to defining a system of content exploitation.

Putting the DSA into Practice: Enforcement, Access to Justice and Global Implications

Appelman, N., Buri, I., Fahy, R., Quintais, J., Straub, M., van Hoboken, J.

2023, ISBN: 9783757517960.

EU copyright law round up – fourth trimester of 2022

Quintais, J., Trapova, A.

In: Kluwer Copyright Blog, 2023.

(Links | BibTeX)

Butler, B., Carroll, M., Cohen-Sasson, O., Contreras, J.L., Craig, C., Flynn, S., Guibault, L., Jaszi, P., Jütte, B.J., Katz, A., Margoni, T., Quintais, J., Rocha de Souza, A., Sag, M., Samberg, R., Schirru, L., Senftleben, M., Tur-Sinai, O.

Legal reform to enhance global text and data mining research: Outdated copyright laws around the world hinder research

In: Science, vol. 378, iss. 6623, pp. 951-953, 2022.

Using Terms and Conditions to Apply Fundamental Rights to Content Moderation

Appelman, N., Fahy, R., Quintais, J.

In: German Law Journal, Forthcoming.

@article{nokey,

title = {Using Terms and Conditions to Apply Fundamental Rights to Content Moderation},

author = {Quintais, J. and Appelman, N. and Fahy, R.},

url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4286147

https://osf.io/f2n7m/},

year  = {2022},

date = {2022-11-25},

journal = {German Law Journal},

abstract = {Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platform's terms and conditions (T\&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T\&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T\&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T\&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T\&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T\&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards, and therefore allowing Article 14 to fulfil its revolutionary potential.},

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Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platform's terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards, and therefore allowing Article 14 to fulfil its revolutionary potential.

The DSA has been published – now the difficult bit begins

Appelman, N., Buri, I., Fahy, R., Quintais, J., Straub, M., van Hoboken, J.

In: Verfassungsblog, 2022.

(Links | BibTeX)

Quintais, J., Trapova, A.

EU copyright law round up – third trimester of 2022

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Harkai, I., Katzenbach, C., Magalhães, J.C., Mezei, P., Quintais, J., Riis, T., Schwemer, S.

Copyright Content Moderation in the EU: An Interdisciplinary Mapping Analysis

2022, (ReCreating Europe, August 2022).

Copyright Content Moderation in the EU: An Interdisciplinary Mapping Analysis

Harkai, I., Katzenbach, C., Magalhães, J.C., Mezei, P., Quintais, J., Riis, T., Schwemer, S.

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Quintais, J., Trapova, A.

The UK government moves forward with a text and data mining exception for all purposes

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Quintais, J., Trapova, A.

EU copyright law round up – second trimester of 2022

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Mil, J. van, Quintais, J.

A Matter of (Joint) control? Virtual assistants and the general data protection regulation

In: Computer Law & Security Review, vol. 45, 2022.

Algorithmic propagation: do property rights in data increase bias in content moderation? – Part II

Margoni, T., Quintais, J., Schwemer, S.

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Margoni, T., Quintais, J., Schwemer, S.

Algorithmic propagation: do property rights in data increase bias in content moderation? Part I

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Between Filters and Fundamental Rights: How the Court of Justice saved Article 17 in C-401/19 - Poland v. Parliament and Council

In: Verfassungsblog, 2022.

Video recording of the COMMUNIA Salon on the CJEU decision on Article 17 (Case C-401/19)

Giorello, M., Keller, P., Quintais, J., Reda, F.

04.05.2022.

(Links | BibTeX)

Bulayenko, O., Gervais, D.J., Poort, J., Quintais, J.

AI Music Outputs: Challenges to the Copyright Legal Framework – Part II

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Article 17 survives, but freedom of expression safeguards are key: C-401/19 – Poland v Parliament and Council

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Bulayenko, O., Gervais, D.J., Poort, J., Quintais, J.

AI Music Outputs: Challenges to the Copyright Legal Framework – Part I

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Antal, D., Bodó, B., Handke, C.W., Kretschmer, M., Margoni, T., Poort, J., Quintais, J., Schwemer, S., Senftleben, M., van Gompel, S.

Ensuring the Visibility and Accessibility of European Creative Content on the World Market: The Need for Copyright Data Improvement in the Light of New Technologies

In: JIPITEC, vol. 13, iss. 1, pp. 67-86, 2022.

AI Music Outputs: Challenges to the Copyright Legal Framework

Bulayenko, O., Gervais, D.J., Poort, J., Quintais, J.

2022, (reCreating Europe report).

EU copyright law round up – first trimester of 2022

Quintais, J., Trapova, A.

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Husovec, M., Kretschmer, M., Mezei, P., Peukert, A., Quintais, J.

European Copyright Society – Comment on Copyright and the Digital Services Act Proposal

In: IIC - International Review of Intellectual Property and Competition Law , vol. 53, iss. 3, pp. 358-376, 2022, (Opinion).

(Links | BibTeX)

Quintais, J., Schwemer, S.

The Interplay between the Digital Services Act and Sector Regulation: How Special is Copyright?

In: European Journal of Risk Regulation, vol. 13, iss. 2, pp. 191-217, 2022.

@article{Quintais2021e,

title = {The Interplay between the Digital Services Act and Sector Regulation: How Special is Copyright?},

author = {Quintais, J. and Schwemer, S. },

url = {https://www.ivir.nl/ejrr_2022/},

doi = {https://doi.org/10.1017/err.2022.1},

year  = {2022},

date = {2022-03-14},

urldate = {2022-03-14},

journal = {European Journal of Risk Regulation},

volume = {13},

issue = {2},

pages = {191-217},

abstract = {On 15 December 2020, the European Commission published its proposal for a Regulation on a Single Market for Digital Services (Digital Services Act). It carries out a regulatory overhaul of the 21-year- old horizontal rules on intermediary liability in the Directive and introduces new due diligence obligations for intermediary services.



Our analysis illuminates an important point that has so far received little attention: how would the Digital Services Act’s rules interact with existing sector-specific lex specialis rules? In this paper, we look specifically at the intersection of the Digital Services Act with the regime for online content sharing service providers (OCSSPs) set forth in art. 17 of Directive (EU) 2019/790 on copyright in the Digital Single Market (CDSM Directive). At first glance, these regimes do not appear to overlap as the rules on copyright are lex specialis to the Digital Services Act. A closer look shows a more complex and nuanced picture. Our analysis concludes that the DSA will apply to OCSSPs insofar as it contains rules that regulate matters not covered by art. 17 CDSM Directive, as well as specific rules on matters where art. 17 leaves margin of discretion to Member States. This includes, to varying degrees, rules in the DSA relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where art. 17 CDSM Directive contains specific (but less precise) regulation on the matter.



From a normative perspective, this might be a desirable outcome, to the extent that the DSA aims to establish “uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. Based on our analysis, we suggest a number of clarifications that might be help achieve that goal. },

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Angelopoulos, C., Quintais, J.

Annotatie bij Hof van Justitie van de EU 22 juni 2021 Frank Peterson / Google & YouTube (C 682/18) & Elsevier / Cyando AG (C 683/18)

In: Auteursrecht, iss. 1, no. 1, pp. 46-51, 2022.

(Links | BibTeX)

Husovec, M., Kretschmer, M., Mezei, P., Peukert, A., Quintais, J.

European Copyright Society (ECS): Comment on Copyright and the Digital Services Act Proposal

In: Kluwer Copyright Blog, 2022.

(Links | BibTeX)

Bodó, B., Giannopoulou, A., Mezei, P., Quintais, J.

The rise of NFTs: These aren't the droids you're looking for

In: European Intellectual Property Review, 2022.

EU copyright law round up – fourth trimester of 2021

Quintais, J., Trapova, A.

In: Kluwer Copyright Blog, 2021.

(Links | BibTeX)

Study on emerging issues on collective licensing practices in the digital environment

Do We Need More Copyright Protection for Sports Events?

In: Intellectual Property and Sports: Essays in Honour of P. Bernt Hugenholtz, pp. 143-156, Wolters Kluwer, 2021, ISBN: 9789403537337.

(BibTeX)

Bulayenko, O., and Handke, C., Peeters, R., Poort, J., Quintais, J., Regeczi, D., van Gompel, S.

2021, ISBN: 978-92-76-39981-0, (Study written by Ecorys, IViR and Erasmus University Rotterdam, commissioned by the European Commission.).

@techreport{nokey,

title = {Study on emerging issues on collective licensing practices in the digital environment},

author = {Bulayenko, O. and van Gompel, S. and and Handke, C. and Peeters, R. and Poort, J. and Quintais, J. and Regeczi, D.},

url = {https://www.ivir.nl/publicaties/download/Study_on_collective_practices_in_the_digital_environment.pdf

https://digital-strategy.ec.europa.eu/en/library/reports-collective-management-and-extended-licensing},

doi = {10.2759/611658},

isbn = {978-92-76-39981-0},

year  = {2021},

date = {2021-11-25},

abstract = {Collective management of copyright and related rights is an important element of the copyright system. First and foremost, it can ensure that rightholders reap greater rewards. By exploiting economies of scale and network effects, collective management can also make markets for copyright licences more efficient, to benefit users and other stakeholders. This study examines two central aspects of collective management of copyright and related rights in Europe.

Part I documents the development of multi-territorial licensing of online rights in musical works in the European Economic Area (EEA) under Title III of Directive 2014/26/EU on Collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (CRM Directive). It highlights the consequences of legal and regulatory reform, based on pervasive quantitative and qualitative data \textendash produced in surveys, interviews and a workshop with stakeholders \textendash and collected among collective management organisations (CMOs), rightholders, online music service providers, and national competent authorities.

Part II examines national mechanisms of collective licensing with an extended effect and comprehensive network of national experts, complemented by surveys of CMOs, as well as interviews with national competent authorities. 

The present study provides a legal and economic analysis that can serve as input for the European Commission to draft the reports required by Article 40 of the CRM Directive and Article 12(6) of the Directive 2019/790/EU on copyright and related rights in the Digital Single Market (DSM Directive).



},

note = {Study written by Ecorys, IViR and Erasmus University Rotterdam, commissioned by the European Commission.},

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Ausloos, J., Helmond, A., Quintais, J., Schumacher, L.D., Senftleben, M., van Gompel, S., van Hoboken, J.

Webharvesting

2021, (Onderzoek in opdracht van het Wetenschappelijk Onderzoek- en Documentatiecentrum (WODC), 20 september 2021, WODC rapport 3142.).

The Regulatory Landscape for Copyright Content Moderation: Evaluation and Future Trajectories

Kowalewska Jahromi, H., Mezei, P., Priora, G., Quintais, J., Reda, J., Riis, T., Schwemer, S., Szkalej, K.

2021, (Webinar ReCreating Europe 16 November 2021).

EU copyright law round up – third trimester of 2021

Quintais, J., Trapova, A.

2021.

(Links | BibTeX)

Hugenholtz, P., Quintais, J.

Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?

In: IIC - International Review of Intellectual Property and Competition Law , vol. 52, no. 9, pp. 1190-1216, 2021.

Using Terms and Conditions to apply Fundamental Rights to Content Moderation: Is Article 12 DSA a Paper Tiger?

Appelman, N., Fahy, R., Quintais, J.

Verfassungsblog, (Ed.): Verfassungsblog 2021.

(Links | BibTeX)

Quintais, J., Trapova, A.

EU copyright law round up – second trimester of 2021

Blog, Kluwer Copyright (Ed.): Kluwer Copyright Blog 2021.

(Links | BibTeX)

Hugenholtz, P., Quintais, J.

Auteursrecht en artificiële creatie

In: Auteursrecht, no. 2, pp. 47-52, 2021.

Commission’s Guidance on Art. 17 CDSM Directive: the authorisation dimension

Kluwer Copyright Blog 2021.

(Links | BibTeX)

Commission’s Guidance on Art. 17 CDSM Directive: the authorisation dimension

In: Kluwer Copyright Blog, 2021.

(Links | BibTeX)

Book review: European Libraries and the Internet: Copyright and Extended Collective Licences, by Ran Tryggvadottir.

In: Common Market Law Review, vol. 58, no. 3, pp. 961 – 964, 2021.

(Links | BibTeX)

Appelman, N., Fahy, R., Quintais, J.

Article 12 DSA: Will platforms be required to apply EU fundamental rights in content moderation decisions?

DSA Observatory 2021.

(Links | BibTeX)

Husovec, M., Quintais, J.

Too Small to Matter? On the Copyright Directive’s bias in favour of big right-holders

In: Mylly, Tuomas; Griffiths, Jonathan (Ed.): Oxford University Press, 2021.

@inbook{HusovecQuintais2021-2,

title = {Too Small to Matter? On the Copyright Directive’s bias in favour of big right-holders},

author = {Husovec, M. and Quintais, J.},

editor = {Tuomas Mylly and Jonathan Griffiths},

url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3835930},

year  = {2021},

date = {2021-04-29},

publisher = {Oxford University Press},

abstract = {Copyright law is about recognising the author’s material and non-material interests and setting the incentives for creativity right. The legislative changes in this area increasingly look as if simple linearity governs the world: what we take away from some, we automatically give away in equal part to others. The idea of redistribution is noticeable in recent legislative developments. Art. 17 of the Copyright in the Digital Single Market Directive (DSM Directive) is the latest policy intervention to prove this point. According to its logic, imposing stricter liability on some online gatekeepers will automatically improve the position and revenues for all right-holders. This chapter explores the flaws in such an approach by highlighting how the excessive focus of Art. 17 on big right-holders neglects and harms smaller creators.



EU copyright law often uses a technical term of ‘right-holders’ to refer to a wide range of players with legal entitlements in the copyright ecosystem: authors, performers, phonogram producers, film producers, broadcasting organisations and (most recently) press publishers. Obviously, not all right-holders are created equal nor do their legal entitlements flow from identical normative justifications. We argue in this chapter that even the use of this seemingly neutral term can, due to the design of underlying legal solutions, lead to stark inequality between right-holders. Our broader goal is to demonstrate that maximising enforcement by means of Art. 17 of the DSM Directive does not simply maximise the position of every right-holder at the expense of platforms but does so disproportionality for big right-holders. Besides, we show that blind use of ‘right-holder’ and ‘user’ distinction harms the very creators that provision is supposed to protect. },

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The Rise of Non-Fungible Tokens (NFTs) and the Role of Copyright Law – Part II

Bodó, B., Giannopoulou, A., Mezei, P., Quintais, J.

Kluwer Copyright Blog 2021.

(Links | BibTeX)

Bodó, B., Giannopoulou, A., Mezei, P., Quintais, J.

The Rise of Non-Fungible Tokens (NFTs) and the Role of Copyright Law – Part I

Kluwer Copyright Blog 2021.

(Links | BibTeX)

Quintais, J., Trapova, A.

EU copyright law round up – first trimester of 2021

In: Kluwer Copyright Blog, 2021.

(Links | BibTeX)

Jütte, B.J., Quintais, J.

The Pelham Chronicles: Sampling, Copyright and Fundamental Rights

In: Journal of Intellectual Property Law & Practice, vol. 16, no. 3, pp. 213-225, 2021.

@article{QuintaisJutte2021,

title = {The Pelham Chronicles: Sampling, Copyright and Fundamental Rights},

author = {Quintais, J. and Jutte, B.J.},

url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3775599},

doi = {https://doi.org/10.1093/jiplp/jpab040},

year  = {2021},

date = {2021-02-18},

journal = {Journal of Intellectual Property Law \& Practice},

volume = {16},

number = {3},

pages = {213-225},

abstract = {On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated.



This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling.



This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E\&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6). },

keywords = {},

pubstate = {published},

tppubtype = {article}

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On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated.

This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling.

This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6).

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms under the Copyright in the Digital Single Market Directive

Husovec, M., Quintais, J.

In: GRUR International - Journal of European and International IP Law, vol. 70, no. 4, pp. 325-348, 2021.

Trends And Developments In Artificial Intelligence: Challenges To Patent Law

Gervais, D.J., P.B. Hugenholtz, Quintais, J.

Kluwer Patent Blog 2021.

(Links | BibTeX)

Gervais, D.J., Hugenholtz, P., Quintais, J.

Trends and Developments in Artificial Intelligence: Challenges to Copyright

In: Kluwer Copyright Blog, 2020.

(Links | BibTeX)

Allan, J., Gervais, D.J., Hartmann, C., Hugenholtz, P., Quintais, J.

Trends and Developments in Artificial Intelligence: Challenges to the Intellectual Property Rights Framework: Final Report

2020, (Report written for the European Commission by P.B. Hugenholtz, D. Gervais, J.P. Quintais, C. Hartmann & J. Allan, completed September 2020. ISBN: 97892762244488).

@techreport{Hugenholtz2020f,

title = {Trends and Developments in Artificial Intelligence: Challenges to the Intellectual Property Rights Framework: Final Report},

author = {Hugenholtz, P. and Quintais, J. and Gervais, D.J. and Hartmann, C. and Allan, J.},

url = {https://op.europa.eu/en/publication-detail/-/publication/394345a1-2ecf-11eb-b27b-01aa75ed71a1/language-en

https://www.ivir.nl/publicaties/download/Trends_and_Developments_in_Artificial_Intelligence-1.pdf},

year  = {2020},

date = {2020-11-27},

abstract = {This report examines copyright and patent protection in Europe for AI-assisted outputs in general and in three priority domains: science (in particular, meteorology), media (journalism), and pharmaceutical research. It comprises an assessment of the state of the art of uses of AI in the three focus areas, and a legal analysis of how IP laws currently apply to AI-assisted creative and innovative outputs. The report concludes that the current state of the art in AI does not require or justify immediate substantive changes in copyright and patent law in Europe. The existing concepts of copyright and patent law are sufficiently abstract and flexible to meet the current challenges from AI. In addition, related rights regimes potentially extend to ‘authorless’ AI productions in a variety of sectors, and the sui generis database right may offer protection to AI-produced databases resulting from substantial investment. However, taking into account the practical implications of AI technologies, the report identifies specific avenues for future legal reform (if justified by empirical evidence), offers recommendations for improvements in the application of existing rules (e.g. via guidelines), and highlights the need to study the role of alternative IP regimes to protect AI-assisted outputs, such as trade secret protection, unfair competition and contract law.},

note = {Report written for the European Commission by P.B. Hugenholtz, D. Gervais, J.P. Quintais, C. Hartmann \& J. Allan, completed September 2020. ISBN: 97892762244488},

keywords = {},

pubstate = {published},

tppubtype = {techreport}

}

CIPIL Evening Webinar: 'Article 17 and the New EU Rules on Content-Sharing Platforms'

2020.

@online{Quintais2020d,

title = {CIPIL Evening Webinar: 'Article 17 and the New EU Rules on Content-Sharing Platforms' },

author = {Quintais, J.},

url = {https://youtu.be/f1tGV_IdueQ },

year  = {2020},

date = {2020-11-17},

abstract = {This presentation addresses the hottest topic in EU copyright law and policy: Article 17 of the new Copyright in the Digital Single Market (CDSM) Directive (2019/790). The CDSM Directive is the culmination of a controversial political and legislative process at EU level. None of its provisions has caused greater debate than Article 17, which introduces a new liability regime for "online content-sharing service providers". These include most user-generated content platforms hosting copyright-protected content accessed daily by millions of individuals in the EU and across the globe. Even before the CDSM Directive is implemented into national law, the issues surrounding Article 17 have already spilled out to the policy and judicial arenas. At the policy level, the debates taking place in a number of Commission-led Stakeholder Dialogues have laid bare many of the unresolved challenges ahead for national legislators and courts. At the judicial level, the Polish government has filed an action for annulment with the CJEU under Article 263 TFEU, focusing on the most problematic aspects of Article 17. This presentation will first place Article 17 into its broader EU policy context of the discussion on the responsibilities of online platforms \textendash from the agenda on "Tackling Illegal Content Online" to the Digital Services Act \textendash and the narrow copyright context regarding the liability of intermediary platforms for third-party content they host. This will be followed by an explanation of the complex mechanics of Article 17 and an identification of some of its fundamental problems. Finally, some tentative proposals will be advanced for how to begin to address such problems, focusing on the core issues of licensing mechanisms and fundamental rights safeguards.},

keywords = {},

pubstate = {published},

tppubtype = {online}

}

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms

Husovec, M., Quintais, J.

In: 2020.

Article 17 of the Copyright Directive: Why the German implementation proposal is compatible with EU law – Part 2

Husovec, M., Quintais, J.

In: Kluwer Copyright Blog, 2020.

(Links | BibTeX)

Husovec, M., Quintais, J.

Article 17 of the Copyright Directive: Why the German implementation proposal is compatible with EU law – Part 1

In: Kluwer Copyright Blog, 2020.

(Links | BibTeX)

Harkai, I., Katzenbach, C., Magalhães, J.C., Mezei, P., Quintais, J., Riis, T., Schwemer, S.

Webinar on Public and Regulatory Framework of Online Intermediaries

2020.

Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for International Action

Carroll, M., Flynn, S., Geiger, C., Guibault, L., Margoni, T., Quintais, J., Sag, M.

In: European Intellectual Property Review, vol. 2020, no. 7, Forthcoming.

Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for Action at International Level

Flynn, S., Geiger, C., Quintais, J.

In: Kluwer Copyright Blog, 2020.

Joint Comment to WIPO on Copyright and Artificial Intelligence

Bogataj Jancic, M., Botero, C., Butler, B., Carroll, M., Craig, C., Flynn, S., Geiger, C., Guibault, L., Jaszi, P., Margoni, T., Ncube, C., Quintais, J., Rocha de Souza, A., Sag, M., Scaria, A.G., White, B.

In: 2020.

Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics

Frosio, G., Hugenholtz, P., Husovec, M., Jütte, B.J., Quintais, J., Senftleben, M., van Gompel, S.

In: JIPITEC, vol. vol. 10, no. nr. 3 - 2019, 2020.

(Links | BibTeX)

Ducato, R., Hegladóttir, A., Mazgal, A., Quintais, J., Zuiderveen Borgesius, F.

Panel discussion at CPDP 2020: We need to talk about filters: algorithmic copyright enforcement vs data protection.

06.02.2020.

@misc{Quintais2020,

title = {Panel discussion at CPDP 2020: We need to talk about filters: algorithmic copyright enforcement vs data protection. },

author = {Quintais, J. and Zuiderveen Borgesius, F. and Mazgal, A. and Ducato, R. and Heglad\'{o}ttir, A. },

url = {https://www.youtube.com/watch?v=SstHA1ALZoI},

year  = {2020},

date = {2020-02-06},

abstract = {The new Copyright in the Digital Single Market (DSM) Directive was published in May 2019. Its most controversial provision is Article 17 (ex 13), which creates a new liability regime for user-generated content platforms, like YouTube and Facebook. The new regime makes these platforms directly liable for their users’ uploads, without the possibility of benefiting from the hosting safe-harbour. This forces platforms to either license all or most of the content uploaded by users (which is near impossible) or to adopt preventive measures like filters. The likely outcome is that covered platforms will engage in general monitoring of the content uploaded by their users. This panel will discuss the issues raised by Article 17 DSM Directive and the model of algorithmic enforcement it incentivizes, with a focus on the freedom of expression and data protection risks it entails. 

 

       • Article 17 of the Copyright in the Digital Single Market Directive creates a new liability regime for user-generated content platforms.

       •  Does this provision introduce de facto the controversial upload filtering systems and, as a result, general monitoring of information in content-sharing platforms?

       •  Is Article 17 essentially in conflict with the GDPR and, in particular, the principle of minimisation and the right not to be subject to automated decision-making processes? What are the potential consequences of this provision on users’ freedom of expression? 

      •  If Article 17 can negatively affect data protection and freedom of expression what are the possible legal and extra-legal responses to neutralise the risk?

},

keywords = {},

pubstate = {published},

tppubtype = {presentation}

}

The New Copyright in the Digital Single Market Directive: A Critical Look

In: European Intellectual Property Review, vol. 42, no. 1, pp. 28-41, 2020.

Sample, sample in my song, can they tell where you are from? The Pelham judgment – Part II

Jütte, B.J., Quintais, J.

In: Kluwer Copyright Blog, 2019.

(Links | BibTeX)

Frosio, G., Hugenholtz, P., Husovec, M., Jütte, B.J., Quintais, J., Senftleben, M., van Gompel, S.

Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics

In: 2019.

Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics

In: Kluwer Copyright Blog, 2019.

(Links | BibTeX)

Jütte, B.J., Quintais, J.

Sample, sample in my song, can they tell where you are from? The Pelham judgment – Part I

In: Kluwer Copyright Blog, 2019.

(Links | BibTeX)

Angelopoulos, C., Quintais, J.

Fixing Copyright Reform: A Better Solution to Online Infringement

In: JIPITEC, vol. 10, no. 2, 2019.

How to license Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms

Husovec, M., Quintais, J.

In: 2019, (Working paper).

Conference on Freedom of Expression and Copyright: Luxembourg, 7 November 2019

Jütte, B.J., Quintais, J.

In: Kluwer Copyright Blog, 2019.

(Links | BibTeX)

The Decline of Online Piracy: How Markets - Not Enforcement - Drive Down Copyright Infringement

In: American University International Law Review, vol. 34, no. 4, pp. 807-876, 2019.

Hosting intermediary services and illegal content online: An analysis of the scope of article 14 ECD in light of developments in the online service landscape

Poort, J., Quintais, J., van Eijk, N., van Hoboken, J.

2019, ISBN: 9789279930027, (A study prepared for the European Commission DG Communications Networks, Content & Technology, European Union, 2018, 47 p.).

Knocking on Heaven’s Door: User preferences on digital cultural distribution

Bodó, B., Handke, C.W., Quintais, J., Vallbé, J.

In: Internet Policy Review, vol. 8, no. 2, 2019.

@article{Vallb\'{e}2019,

title = {Knocking on Heaven’s Door: User preferences on digital cultural distribution},

author = {Vallb\'{e}, J. and Bod\'{o}, B. and Quintais, J. and Handke, C.W.},

url = {https://policyreview.info/articles/analysis/knocking-heavens-door-user-preferences-digital-cultural-distribution},

year  = {2019},

date = {2019-06-20},

journal = {Internet Policy Review},

volume = {8},

number = {2},

abstract = {This paper explores the social, demographic and attitudinal basis of consumer support of a Copyright Compensation System (CCS), which, for a small monthly fee would legalise currently infringing online social practices such as private copying from illegal sources and online sharing of copyrighted works. We do this by first identifying how different online and offline, legal and illegal, free and paying content acquisition channels are used in the media market using a cluster-based classification of respondents. Second, we assess the effect of cultural consumption on the support for a shift from the status quo towards alternative, CCS-based forms of digital cultural content distribution. Finally, we link these two analyses to identify the factors that drive the dynamics of change in digital cultural consumption habits. Our study shows significant support to a CCS compared to the status quo by both occasional and frequent buyers of cultural goods, despite the widespread adoption of legal free and paying online services by consumers. The nature of these preferences are also explored with the inclusion of consumer preference intensities regarding certain CCS attributes. Our results have relevant policy implications, for they outline CCS as a reform option. In particular, they point evidence-based copyright reform away from its current direction in the EU of stronger enforcement measures, additional exclusive rights, and increased liability and duties of care for online platforms. This work shows that CCS may be an apt policy tool to hinder piracy and potentially increase right holder revenues, while respecting fundamental rights and promoting technological development.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

The New Copyright Directive: A tour d’horizon – Part II (of press publishers, upload filters and the real value gap)

(Links | BibTeX)

The New Copyright Directive: A tour d’horizon – Part I

(Links | BibTeX)

Jütte, B., Quintais, J.

Advocate General Turns down the Music - Sampling Is Not a Fundamental Right under EU Copyright Law

In: European Intellectual Property Review , vol. 41, no. 10, pp. 654-657, 2019.

Blockchain and the Law: A Critical Evaluation

Bodó, B., Ferrari, V., Giannopoulou, A., Quintais, J.

In: Stanford Journal of Blockchain Law & Policy, vol. 2, no. 1, 2019.

(Links | BibTeX)

Bodó, B., Handke, Christian W., Quintais, J.

Truce in the Copyright War? The Pros and Cons of Copyright Compensation Systems for Digital Use

In: Review of Economic Research on Copyright Issues, vol. 15, no. 2, pp. 23-56, 2019.

Thou shalt not sample...without permission!

Jütte, B.J., Quintais, J.

(Links | BibTeX)

González Otero, B.,, Quintais, J.

Before the Singularity: Copyright and the Challenges of Artificial Intelligence

(Links | BibTeX)

Bodó, B., Gervais, D.J., Quintais, J.

Blockchain and smart contracts: the missing link in copyright licensing?

In: International Journal of Law and Information Technology, vol. 2018, no. 4, pp. 311-336, 2018.

Angelopoulos, C., Quintais, J.

Fixing Copyright Reform: How to Address Online Infringement and Bridge the Value Gap

(Links | BibTeX)

Global Online Piracy Study

Global Online Piracy Study

Ende, M. van der, Hageraats, M., Poort, J., Quintais, J., Yagafarova, A.

In: 2018.

(Links | BibTeX)

Ende, M. van der, Hageraats, M., Poort, J., Quintais, J., Yagafarova, A.

Global Online Piracy Study - Annexes

In: 2018.

(Links | BibTeX)

Global Online Piracy Study: Legal Background Report

In: 2018.

(Links | BibTeX)

Untangling the Hyperlinking Web: In Search of the Online Right of Communication to the Public

In: Journal of World Intellectual Property (forthcoming), vol. 2018, pp. 1-36, Forthcoming, (The article is also available on SSRN: https://ssrn.com/abstract=3199733.An earlier version of this paper was awarded the 1st Prize in the 2017 ATRIP Essay Competition.).

EU Copyright Law and the Cloud: VCAST and the Intersection of Private Copying and Communication to the Public

A Brief History of Value Gaps: Pre-Internet Copyright Protection and Exploitation Models

In: vol. 2018, Chapter 2, pp. 11-58, Wolters Kluwer, 2018, (Chapter in: Copyright Reconstructed: Rethinking Copyright's Economic Rights in a Time of Highly Dynamic Technological and Economic Change, Hugenholtz, P.B. ed., Information Law Series, no. 41, Alphen aan den Rijn: Wolters Kluwer, 2018. ISBN: 9789041191038).

(BibTeX)

Hugenholtz, P., Quintais, J.

Towards a Universal Rights of Remuneration: Legalizing the Non-commercial Online Use of Works

In: 2018, (Chapter in: Copyright Reconstructed: Rethinking Copyright's Economic Rights in a Time of Highly Dynamic Technological and Economic Change, Hugenholtz, P.B. ed., Information Law Series, no. 41, Alphen aan den Rijn: Wolters Kluwer, 2018. ISBN: 9789041191038).

(BibTeX)

Quintais, J., Rendas, T.

In: Journal of Intellectual Property Law & Practice , vol. 2018, no. 9, pp. 711-719, 2018.

Rethinking Normal Exploitation: Enabling Online Limitations in EU Copyright Law

In: AMI, vol. 2017, no. 6, pp. 197-205, 2018.

AG Szpunar on VCAST: Copyright and the Cloud

Quintais, J., Rendas, T.

2017, (Kluwer Copyright Blog).

Copyright in the Age of Online Access: Alternative Compensation Systems in EU Law

Kluwer Law International, 2017, ISBN: 9789041186676.

Alternative compensation models for large-scale non-commercial online use of works

Remuneration for the use of works : exclusivity vs. other approaches, ALAI DE GRUYTER, Berlin, 2016, ISBN: 978-3-11-047819-8, ( Paper presented at ALAI International Congress - 50 Years of the German Copyright Act: Remuneration for the Use of Works - Exclusivity vs. Other Approaches, Bonn, June 18-20, 2015. Published in: Remuneration for the Use of Works - Exclusivity vs. Other Approaches, Edited by S. von Lewinski, Silke, De Gruyter (December 2016) ).

@conference{,

title = {Alternative compensation models for large-scale non-commercial online use of works},

author = {Quintais, J.},

editor = {Lewinski, S. von},

url = {https://ssrn.com/abstract=2625492},

doi = { https://doi.org/10.1515/9783110478198},

isbn = {978-3-11-047819-8},

year  = {2016},

date = {2016-12-01},

booktitle = {Remuneration for the use of works : exclusivity vs. other approaches},

pages = {pp. 298-306},

publisher = {DE GRUYTER},

address = {Berlin},

organization = {ALAI},

abstract = {

	This paper briefly discusses an alternative legal model to assure remuneration for non-commercial mass online uses by individuals, covered by the exclusive rights of reproduction and communication/making available to the public in Directive 2001/29/EC. Alternative compensation systems (ACS) are legal mechanisms that forsake the need for direct authorization of end-user acts under the aforementioned rights \textendash downloading, uploading, sharing, modifying \textendash, while simultaneously ensuring compensation to creators (i.e. authors and performers) or all rights holders of works included in the scheme. After providing some background, the paper explains the concept of ACS, outlines the legal models and challenges to its implementation and reports on the results of an ongoing interdisciplinary research project on the legal and socioeconomic feasibility of such systems carried out by the Institute for Information Law (IViR), University of Amsterdam. Chief among the findings are the willingness of users to pay for and participate in an ACS, its quantification and, using the case-study of recorded music, the realization that such a model holds the promise of being welfare increasing.

},

note = {

	Paper presented at ALAI International Congress - 50 Years of the German Copyright Act: Remuneration for the Use of Works - Exclusivity vs. Other Approaches, Bonn, June 18-20, 2015. Published in: Remuneration for the Use of Works - Exclusivity vs. Other Approaches, Edited by S. von Lewinski, Silke, De Gruyter (December 2016) 

},

keywords = {},

pubstate = {published},

tppubtype = {conference}

}

Symposium on Alternative Compensation Systems for Digital Copyright

Quintais, J., Velze, S.C. van, Yakovleva, S.

2015, ( Summary Report of <a href="http://www.ivir.nl/onderzoek/acs">ACS Symposium</a> on Saturday 11 July 2015. ).

(Links | BibTeX)

Bodó, B., Handke, C.W., Quintais, J., Vallbé, J.

Knocking on Heaven's Door - User Preferences on Digital Cultural Distribution

In: 2015.

Copyright, technology and the exploitation of audiovisual works in the EU

Guibault, L., Quintais, J.

In: IRIS Plus, no. 4, pp. 9-24., 2014, ( Lead article in IRIS plus 2014-4. ).

(Links | BibTeX)

Private Copying and Downloading from Unlawful Sources

In: IIC - International Review of Intellectual Property and Competition Law, vol. 46, no. 1, pp. 66-92, 2014, (Article also available on SSRN).

@article{,

title = {Private Copying and Downloading from Unlawful Sources},

author = {Quintais, J.},

url = {http://link.springer.com/article/10.1007/s40319-014-0295-7},

doi = {10.1007/s40319-014-0295-7},

year  = {2014},

date = {2014-10-29},

journal = {IIC - International Review of Intellectual Property and Competition Law},

volume = {46},

number = {1},

pages = {66-92},

abstract = {

	Private copying is one of the most contested areas of EU copyright law. This paper surveys that nebulous area and examines the issue of copies made from unlawful sources in light of the ECJ’s ACI Adam decision. After describing the legal background of copyright levies and the facts of the litigation, the paper scrutinizes the Advocate General’s Opinion and the Court’s decision. The latter is analyzed against the history of copyright levies, the ECJ’s extensive case-law on the private copying limitation and Member States’ regulation of unlawful sources. This paper further reflects on the decision’s implications for end-users, rights holders, collective management organizations and manufacturers/importers of levied goods. It concludes that, from a legal and economic standpoint, the decision not only fails to be properly justified, but its consequences will likely diverge from those anticipated by the Court. Most worrisome is the Court’s stance on the three-step test, which it views as a restrictive, rather than enabling, clause. In its interpretation of the test, the decision fails to strike the necessary balance between competing rights and interests. This is due to multiple factors: overreliance on the principle of strict interpretation; failure to consider the fundamental right of privacy; lack of justification of the normative and empirical elements of the test’s second condition; and a disregard for the remuneration element in connection with the test’s third condition. To the contrary, it is argued that a flexible construction of the three-step test is more suited to the Infosoc Directive’s balancing aims.

},

note = {Article also available on SSRN},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

Legalizing File-Sharing: An Idea Whose Time Has Come - Or Gone? Report from the Information Influx Conference 2014

In: 2014, ( 1 October 2014 ).

The Levy Runs Dry: A Legal and Economic Analysis of EU Private Copying Levies

In: JIPITEC, no. 3, pp. 205-224, 2013.

@article{,

title = {The Levy Runs Dry: A Legal and Economic Analysis of EU Private Copying Levies},

author = {Poort, J. and Quintais, J.},

url = {http://www.jipitec.eu/issues/jipitec-4-3-2013/3846},

year  = {2013},

date = {2013-09-19},

journal = {JIPITEC},

number = {3},

pages = {205-224},

abstract = {

	This article provides a legal and economic analysis of private copying levies in the EU, against the background of the Copyright Directive (2001/29), a number of recent rulings by the European Court of Justice and the recommendations presented by mediator Vitorino earlier this year. It concludes that notwithstanding these rulings and recommendations, there remains a lack of concordance on the relevance of contractual stipulations and digital rights management technologies (DRM) for setting levies, and the concept of harm. While Mr. Vitorino and AG Sharpston (in the Opinion preceding VG Wort v Kyocera) use different lines of reasoning to argue that levies raised on authorized copies would lead to double payment, the Court of Justice’s decision in VG Wort v Kyocera seems to conclude that such copies should nonetheless be levied. If levies are to provide fair compensation for harm resulting from acts of private copying, economic analysis suggests one should distinguish between various kinds of private copies and take account of the extent to which the value said copies have for consumers can be priced into the purchase. Given the availability of DRM (including technical protection measures), the possibility of such indirect appropriation leads to the conclusion that the harm from most kinds of private copies is de minimis and gives no cause for levies. The user value of copies from unauthorised sources (e.g. from torrent networks or cyber lockers), on the other hand, cannot be appropriated indirectly by rightholders. It is however an open question in references for preliminary rulings pending at the Court of Justice whether these copies are included in the scope of the private copying exception or limitation and can thus be be levied for. If they are not, as currently happens in several EU Member States, legal and economic analysis leads to the conclusion that the scope of private copying acts giving rise to harm susceptible of justifying levies is gradually diminishing.

},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

This article provides a legal and economic analysis of private copying levies in the EU, against the background of the Copyright Directive (2001/29), a number of recent rulings by the European Court of Justice and the recommendations presented by mediator Vitorino earlier this year. It concludes that notwithstanding these rulings and recommendations, there remains a lack of concordance on the relevance of contractual stipulations and digital rights management technologies (DRM) for setting levies, and the concept of harm. While Mr. Vitorino and AG Sharpston (in the Opinion preceding VG Wort v Kyocera) use different lines of reasoning to argue that levies raised on authorized copies would lead to double payment, the Court of Justice’s decision in VG Wort v Kyocera seems to conclude that such copies should nonetheless be levied. If levies are to provide fair compensation for harm resulting from acts of private copying, economic analysis suggests one should distinguish between various kinds of private copies and take account of the extent to which the value said copies have for consumers can be priced into the purchase. Given the availability of DRM (including technical protection measures), the possibility of such indirect appropriation leads to the conclusion that the harm from most kinds of private copies is de minimis and gives no cause for levies. The user value of copies from unauthorised sources (e.g. from torrent networks or cyber lockers), on the other hand, cannot be appropriated indirectly by rightholders. It is however an open question in references for preliminary rulings pending at the Court of Justice whether these copies are included in the scope of the private copying exception or limitation and can thus be be levied for. If they are not, as currently happens in several EU Member States, legal and economic analysis leads to the conclusion that the scope of private copying acts giving rise to harm susceptible of justifying levies is gradually diminishing.

The empire strikes back: CISAC beats Commission in General Court

In: Journal of Intellectual Property Law & Practice, no. 9, pp. 680-683, 2013.

Dr Strangelaw, or how Portugal learned to stop worrying and love P2P

In: Journal of Intellectual Property Law & Practice, no. 3, pp. 193-196, 2013.

Proposal for a Directive on collective rights management and (some) multi-territorial licensing

In: European Intellectual Property Review, no. 2, pp. 65-73, 2013, ( Article available on Westlaw. Preliminary version on Kluwer Copyright Blog: Part I and Part II. ).

On Peers and Copyright: Why the EU should consider collective management of P2P

Munich Intellectual Property Law Center, Nomos, 2012, ISBN: 978-3-8329-7638-5, ( ).