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.
This article examines the online right of communication to the public under EUlaw and its interpretation by the Court of Justice of the EU. The focus of the analysis is on the controversial application of the right to hyperlinking, and its implications for the online activities of users and intermediaries. After outlining the international and EU legal framework on the right of communication to the public, the article advances a conceptual framework for the interpretation of the exclusive right in the online environment, which is both based on, and attempts to bring coherence to, the Court's complex case law. On this basis, the article then explores and critically assesses the main areas of legal uncertainty for the online application of the right and the normative considerations at stake—especially fundamental rights and the promotion of technological development—offering interpretative and legislative solutions for their resolution. The article argues for abandoning the legislative proposals for a new right for press publishers and the so-called value gap, as both are fundamentally flawed. Instead, reform should focus on redefining the right of communication to the public and preserving safe harbors, especially for hosting providers.
This article examines the applicability of the private copying exception to cloud services against the backdrop of the judgment of the Court of Justice of the European Union (CJEU) and the Opinion of Advocate General (AG) Szpunar in Case C-265/16, VCAST. The case raises the question of whether the exception protects services of an online platform allowing users to store copies of free-to-air TV programmes in private cloud storage spaces. The AG’s proposed answer was to consider that cloud copying could generally be covered by the exception, but the specific service of VCAST could not. The CJEU focused on VCAST’s service only, largely following AG Szpunar’s conclusion. The article explains and discusses both the Opinion and the Judgment, further addressing the possible implications of the case for the “leviability” of cloud-based services and the interface between the private copying exception and the right of communication to the public.
The adoption of limitations to copyright is regulated at international and EU level by the three-step test. The major obstacle to new limitations for online use is a strict interpretation of the test, namely its second step, according to which a limitation shall not conflict with the normal exploitation of works. This article examines the test with a focus on the second step and its application to the digital and crossborder environment. It argues for a flexible and policy-oriented reading of the concept of normal exploitation. Following this approach could enable the introduction of new online limitations in EU law. In particular, within the context of current EU copyright reform, a flexible interpretation could support the introduction of a mandatory and unwaivable limitation for user-generated content.
Kluwer Copyright Blog
On 7 September 2017, AG Szpunar delivered his opinion on Case C-265/16, VCAST. The case concerns the question of whether the private copying exception covers the services of an online platform that allows users to store copies of free-to-air TV programmes in private cloud storage spaces. AG Szpunar’s proposed answer was a mixed one: while cloud copying, in general, should be considered covered by the exception, the specific service offered by VCAST should not.
This book examines pragmatic legal solutions that enable Internet users to access works in the digital environment by exploring the flexibilities in EU copyright law in search of a consistent regulation of non-commercial online use. In addition to proving virtually impossible, online enforcement of copyright may be undesirable because it risks encroaching upon fundamental rights and freedoms. However, the problem remains that creators are often not fairly remunerated for the online use of their works. This book addresses the need for legalisation schemes that favour remunerated access over exclusivity and enforcement for large-scale online use by individuals, while assuring remuneration to rights holders and promoting the development of the information society.
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)
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 – downloading, uploading, sharing, modifying –, 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.
Summary Report of <a href="http://www.ivir.nl/onderzoek/acs">ACS Symposium</a> on Saturday 11 July 2015.
14 July 2015.<br /> This paper explores the social, demographic and attitudinal basis of consumer support to a change from the status quo in digital cultural distribution. First we identify how different online and offline, legal and illegal, free and paying content acquisition channels are used in the Dutch media market using a cluster-based classification of respondents according to their cultural consumption. Second, we assess the effect of cultural consumption on the support to the introduction of a Copyright Compensation System (CCS), which, for a small monthly fee would legalize currently infringing online social practices such as private copying from illegal sources and online sharing of copyrighted works. Finally, we link these two analyses to identify the factors that drive the dynamics of change in digital cultural consumption habits.
Lead article in IRIS plus 2014-4.
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.
1 October 2014
On 2-4 July 2014 Information Influx, the 25th anniversary conference of the Institute for Information Law (IViR) was held in Amsterdam. Integrated in the conference, on Friday, 4 July a panel entitled “Legalizing file-sharing: an idea whose time has come – or gone?” met.<br /> The panel’s moderator was Professor Bernt Hugenholtz (University of Amsterdam, IViR) and the panelists were scholars with groundbreaking research on the topic for the past decade: Professor Neil Netanel (University of California, Los Angeles), Professor Alexander Peukert (University of Frankfurt), Dr. Philippe Aigrain (La Quadrature du Net), Professor Séverine Dusollier (SciencesPo./École de droit).<br /> The panel was divided into four parts, which this report reflects. First, the moderator introduced the topic and the panelists. Second, IViR member Mr. Balázs Bodó offered a short presentation of an ongoing research project on the topic of debate. Third, each panelist commented on the topic from different perspectives. The panel discussion was then opened for comments from the audience and responses from the panel.
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 General Court's judgments in Case T-442/08 and related cases annulled Article 3 of the Commission's 2008 decision against CISAC and 20 collecting societies, on the basis of the Commission's failure to prove the required evidentiary legal standard for the existence of a concerted practice on national territorial limitations. These judgments should have an impact on the legislative process of the proposed Directive on collective rights management, namely in what concerns the multi-territorial licensing of rights in musical works for online uses.
A recent decision by a Public Prosecutor in a criminal case in Portugal, based on an Opinion by the Prosecutor General's Office, considers download acts by peer-to-peer (P2P) users to be covered by the private use limitation, raises the possibility that acts of upload are also covered by it and considers IP addresses insufficient evidence upon which to prosecute users.
Article available on Westlaw. Preliminary version on Kluwer Copyright Blog: Part I and Part II.
This article provides a brief descriptive analysis of the recent Proposal from the European Commission for a Directive on collective rights management and multi-territorial licensing. After setting the necessary background, it examines the Proposal's main provisions, focusing on those establishing a governance and transparency framework for collecting societies and multi-territorial licensing for online uses of musical works.
This book analyzes the E.U.’s approach to P2P, a digital age technology that highlights the tensions between the Internet and a territorial and fragmented copyright law. It aims at providing the necessary legal qualification and context to understand why the E.U., while following an economic and socially onerous path, has thus far failed to achieve its deterrence goals. It is argued that a solution to this conundrum must be based on the use of copyright law and policy as tools for market organization and innovation growth, with respect for rights holders and users (sometimes) opposing interests and the existing legal framework. The best answer to mass online P2P uses seems to be that of collective rights management, as it offers an organized licensing and remuneration system compatible with the interests of stakeholders. This is especially true in the E.U., home to a developed and sophisticated market of CMOs, subject to numerous ECJ and Commission decisions, as well as varying E.U. institutional approaches, all pointing towards a preference for multi-territorial and pan-European licensing models. In this context, this book tests the compatibility of several non-voluntary and voluntary approaches to P2P with international treaties, the <i>acquis </i>or simply strategic policy considerations.