Publicaties

What Member States can learn from the AG opinion on Article 17

Keller, P., Reda, J.

Kluwer Copyright Blog, 2021.

Data na de dood - juridische aspecten van digitale nalatenschappen

Ausloos, J., Loos, M., Mak, C., Pol, L., Reinhartz, B., Schumacher, L.D., van Eechoud, M.

2021, (Onderzoek in opdracht van het Ministerie van Binnenlandse Zaken en Koninkrijksrelaties, April 2021, Bijlage bij Kamerstuk 2020-2021, 30696 nr. 52).

Panta Rhei: A European Perspective on Ensuring a High Level of Protection of Human Rights in a World in Which Everything Flows

Irion, K.

Burri, M (Ed.): Big Data and Global Trade Law, Chapter 11, Cambridge University Press, 2021.

Voorbij privacy: manipulatie is het échte probleem in gezondheidsapps

Sax, M.

Privacy & Informatie, (3), pp. 117-120, 2021.

Hugenholtz, P., Quintais, J.

Auteursrecht en artificiële creatie

Auteursrecht, (2), pp. 47-52, 2021.

Three Cheers for the DSM Directive’s Rules on Author’s Contracts – and a Cautionary Note from the Netherlands

Hugenholtz, P.

Kluwer Copyright Blog, 2021.

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

Quintais, J.

Kluwer Copyright Blog, 2021.

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

Quintais, J.

Kluwer Copyright Blog 2021.

News media’s dependency on big tech: should we be worried?

Seipp, T.

Internet Policy Review, 2021, (Opinion).

Fahy, R., van Hoboken, J.

Smartphone platforms as privacy regulators

Computer Law & Security Review, 41 , 2021.

European Commission back-tracks on user rights in Article 17 Guidance

Keller, P., Reda, J.

Kluwer Copyright Blog, 2021.

Annotatie bij Hof van Justitie EU 11 juni 2020 (Brompton Bicycle / Chedech/Get2Get

Hugenholtz, P.

Nederlandse Jurisprudentie, (22), pp. 3136-3138, 2021.

Annotatie Hof van Justitie EU 19 december 2019 (Airbnb Ireland / Hotelière Turenne)

Nederlandse Jurisprudentie, 2021 (20/21), pp. 2799-2802, 2021.

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

Quintais, J.

Common Market Law Review, 58 (3), pp. 961 – 964, 2021.

Fahy, R., van Hoboken, J.

Regulating Disinformation in Europe: Implications for Speech and Privacy

UC Irvine Journal of International, Transnational, and Comparative Law, 6 (1), pp. 9-36, 2021.

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

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

DSA Observatory 2021.

'Staan op de schouders van reuzen'. Waarheidsgetrouw citeren als maatschappelijke verantwoordelijkheid van de wetenschapper

pp. 59-69, 2021, (Hoofdstuk in 'Plagiaat in onderzoek en onderwijs', red. J. Soeharno & K. Algra, VSNU: Den Haag 2021.).

Platform ad archives in Article 30 DSA

Leerssen, P.

DSA Observatory blog, 2021.

Why a COVID IP Waiver Is not a Good Strategy

Bostyn, S.

2021.

@article{Bostyn2021,
title = {Why a COVID IP Waiver Is not a Good Strategy},
author = {Bostyn, S.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3843327},
year = {2021},
date = {2021-05-17},
abstract = {The COVID-19 pandemic has a profound influence on all aspects of society. The development of successful vaccines in record speed is almost a miracle. But despite the successful development and approval of multiple vaccines, many people still die of this terrible disease, and there is an urgent need to see more vaccines manufactured and distributed across the globe.
The proposed COVID-19 IP waiver has been touted by some to be the perfect solution to a terrible problem. We all agree that there is a terrible problem of insufficient vaccines to inoculate the world population.
An IP waiver is not a good strategy however, to tackle this crisis. There are multiple more effective solution conceivable which do not require a very disruptive IP waiver.
The problem of insufficient supply is much more complicated than a simple IP waiver suggests. This is a complex ecosystem, and there are many moving parts. Moreover, IP rights are only part of the problem relating to more supply of vaccine or therapeutics. In view of the complexities, it will probably take many months to negotiate any kind of IP waiver system that would be acceptable to all WTO member states, if consensus could be reached at all. And the end result is likely to satisfy very few if any countries.
The legality of an IP waiver can be doubted, and it would require retro-active effect, a concept that should be extremely sparingly used.
A multitude of complex issues needs to be sorted out. There are hundreds of patents to navigate. A waiver to the equally patented vaccine platform technology (covering many patents), which may be used to develop any other vaccine, will make those companies who have invested heavily into developing it very nervous indeed, to say the least.
Crucial manufacturing know-how is often not protected by IP rights, but is kept secret, and it will be difficult to force companies to disclose that information, also because one does not know what to ask for.
The present IP waiver proposal also provides for a disclosure of commercially very sensitive information. Companies did not have a chance to adapt their regulatory disclosure strategies to this new reality, which means that information which will be disclosed under the waiver could very well have a major negative impact on future innovation strategies, and may also hamper competitive advantage or leverage.
Market exclusivity is arguably not covered by the IP waiver, which means that separate national statutory intervention will be required to ensure that this market exclusivity is set aside, absent of which the IP waiver cannot have any practical effect.
A quick and determined use of compulsory licensing could be a better way forward, as they have the potential to be a powerful tool. There are inefficiencies in using the instrument however, and invoking them when the need is high will require a relatively long lead time before they sort practical effect. They also require additional statutory intervention to ensure that regulatory exclusivities do not block their practical effect. And they might not necessarily work as well with low and middle-income countries, who would have less leverage in the negotiations.
More efficient solutions can be arrived at by introducing hard clauses into contracts in the context of push and pull mechanisms. Those obligations are much more likely to result in more supply in the shorter to medium term if they are agreed upon long before the vaccine enters the market. It is obviously too late for the contracts that have been concluded in the past, but it should be a template for the future.},
keywords = {},
pubstate = {published},
tppubtype = {article}
}

The COVID-19 pandemic has a profound influence on all aspects of society. The development of successful vaccines in record speed is almost a miracle. But despite the successful development and approval of multiple vaccines, many people still die of this terrible disease, and there is an urgent need to see more vaccines manufactured and distributed across the globe.
The proposed COVID-19 IP waiver has been touted by some to be the perfect solution to a terrible problem. We all agree that there is a terrible problem of insufficient vaccines to inoculate the world population.
An IP waiver is not a good strategy however, to tackle this crisis. There are multiple more effective solution conceivable which do not require a very disruptive IP waiver.
The problem of insufficient supply is much more complicated than a simple IP waiver suggests. This is a complex ecosystem, and there are many moving parts. Moreover, IP rights are only part of the problem relating to more supply of vaccine or therapeutics. In view of the complexities, it will probably take many months to negotiate any kind of IP waiver system that would be acceptable to all WTO member states, if consensus could be reached at all. And the end result is likely to satisfy very few if any countries.
The legality of an IP waiver can be doubted, and it would require retro-active effect, a concept that should be extremely sparingly used.
A multitude of complex issues needs to be sorted out. There are hundreds of patents to navigate. A waiver to the equally patented vaccine platform technology (covering many patents), which may be used to develop any other vaccine, will make those companies who have invested heavily into developing it very nervous indeed, to say the least.
Crucial manufacturing know-how is often not protected by IP rights, but is kept secret, and it will be difficult to force companies to disclose that information, also because one does not know what to ask for.
The present IP waiver proposal also provides for a disclosure of commercially very sensitive information. Companies did not have a chance to adapt their regulatory disclosure strategies to this new reality, which means that information which will be disclosed under the waiver could very well have a major negative impact on future innovation strategies, and may also hamper competitive advantage or leverage.
Market exclusivity is arguably not covered by the IP waiver, which means that separate national statutory intervention will be required to ensure that this market exclusivity is set aside, absent of which the IP waiver cannot have any practical effect.
A quick and determined use of compulsory licensing could be a better way forward, as they have the potential to be a powerful tool. There are inefficiencies in using the instrument however, and invoking them when the need is high will require a relatively long lead time before they sort practical effect. They also require additional statutory intervention to ensure that regulatory exclusivities do not block their practical effect. And they might not necessarily work as well with low and middle-income countries, who would have less leverage in the negotiations.
More efficient solutions can be arrived at by introducing hard clauses into contracts in the context of push and pull mechanisms. Those obligations are much more likely to result in more supply in the shorter to medium term if they are agreed upon long before the vaccine enters the market. It is obviously too late for the contracts that have been concluded in the past, but it should be a template for the future.

The commodification of trust

Bodó, B.

Blockchain & Society Policy Research Lab Research Nodes, (1), 2021.

@article{Bod\'{o}2021,
title = {The commodification of trust},
author = {Bod\'{o}, B.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3843707},
year = {2021},
date = {2021-05-17},
journal = {Blockchain & Society Policy Research Lab Research Nodes},
number = {1},
abstract = {Fundamental, wide-ranging, and highly consequential transformations take place in interpersonal, and systemic trust relations due to the rapid adoption of complex, planetary-scale digital technological innovations. Trust is remediated by planetary scale techno-social systems, which leads to the privatization of trust production in society, and the ultimate commodification of trust itself.
Modern societies rely on communal, public and private logics of trust production. Communal logics produce trust by the group for the group, and are based on familiar, ethnic, religious or tribal relations, professional associations epistemic or value communities, groups with shared location or shared past. Public trust logics developed in the context of the modern state, and produce trust as a free public service. Abstract, institutionalized frameworks, institutions, such as the press, or public education, science, various arms of the bureaucratic state create familiarity, control, and insurance in social, political, and economic relations. Finally, private trust producers sell confidence as a product: lawyers, accountants, credit rating agencies, insurers, but also commercial brands offer trust for a fee.
With the emergence of the internet and digitization, a new class of private trust producers emerged. Online reputation management services, distributed ledgers, and AI-based predictive systems are widely adopted technological infrastructures, which are designed to facilitate trust-necessitating social, economic interactions by controlling the past, the present and the future, respectively. These systems enjoy immense economic success, and they are adopted en masse by individuals and institutional actors alike.
The emergence of the private, technical means of trust production paves the way towards the widescale commodification of trust, where trust is produced as a commercial activity, conducted by private parties, for economic gain, often far removed from the loci where trust-necessitating social interactions take place. The remediation and consequent privatization and commodification of trust production has a number of potentially adverse social effects: it may decontextualize trust relationships; it removes trust from the local social, cultural relational contexts; it changes the calculus of interpersonal trust relations. Maybe more importantly as more and more social and economic relations are conditional upon having access to, and good standing in private trust infrastructures, commodification turns trust into the question of continuous labor, or devastating exclusion. By invoking Karl Polanyi’s work on fictious commodities, I argue that the privatization, and commodification of trust may have a catastrophic impact on the most fundamental layers of the social fabric.},
keywords = {},
pubstate = {published},
tppubtype = {article}
}

Fundamental, wide-ranging, and highly consequential transformations take place in interpersonal, and systemic trust relations due to the rapid adoption of complex, planetary-scale digital technological innovations. Trust is remediated by planetary scale techno-social systems, which leads to the privatization of trust production in society, and the ultimate commodification of trust itself.
Modern societies rely on communal, public and private logics of trust production. Communal logics produce trust by the group for the group, and are based on familiar, ethnic, religious or tribal relations, professional associations epistemic or value communities, groups with shared location or shared past. Public trust logics developed in the context of the modern state, and produce trust as a free public service. Abstract, institutionalized frameworks, institutions, such as the press, or public education, science, various arms of the bureaucratic state create familiarity, control, and insurance in social, political, and economic relations. Finally, private trust producers sell confidence as a product: lawyers, accountants, credit rating agencies, insurers, but also commercial brands offer trust for a fee.
With the emergence of the internet and digitization, a new class of private trust producers emerged. Online reputation management services, distributed ledgers, and AI-based predictive systems are widely adopted technological infrastructures, which are designed to facilitate trust-necessitating social, economic interactions by controlling the past, the present and the future, respectively. These systems enjoy immense economic success, and they are adopted en masse by individuals and institutional actors alike.
The emergence of the private, technical means of trust production paves the way towards the widescale commodification of trust, where trust is produced as a commercial activity, conducted by private parties, for economic gain, often far removed from the loci where trust-necessitating social interactions take place. The remediation and consequent privatization and commodification of trust production has a number of potentially adverse social effects: it may decontextualize trust relationships; it removes trust from the local social, cultural relational contexts; it changes the calculus of interpersonal trust relations. Maybe more importantly as more and more social and economic relations are conditional upon having access to, and good standing in private trust infrastructures, commodification turns trust into the question of continuous labor, or devastating exclusion. By invoking Karl Polanyi’s work on fictious commodities, I argue that the privatization, and commodification of trust may have a catastrophic impact on the most fundamental layers of the social fabric.

Annex Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”)

as part of ILA Committee:, van Eechoud, M.

JIPITEC, 12 (1), pp. 86-93, 2021.

International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”): Applicable Law

Ancel, M-E., Binctin, N., Drexl, J., Ginsburg, J.C., Kono, T., Lee, G., Matulionyte, R., Moura Vicente, D., Treppoz, E., van Eechoud, M.

JIPITEC, 12 (1), pp. 44-73, 2021.

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

Quintais, J., Schwemer, S.

Working Paper, 2021.

@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://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3841606},
year = {2021},
date = {2021-05-10},
journal = {Working Paper},
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. },
keywords = {},
pubstate = {published},
tppubtype = {article}
}

Freedom of expression, the Media and Journalists: Case-law of the Euopean Court of Human Rights

McGonagle, T., Voorhoof, D.

2021, ISBN: 9789287184351, (IRIS Themes, vol. III, 6th edition, April 2021).

Persvrijheidsmonitor 2020

McGonagle, T., Volgenant, O.

2021.

Annotatie bij Rb Amsterdam 10 september 2020 (Left Lane c.s. / Sony Music)

van Gompel, S.

Auteursrecht, (1), pp. 40-42, 2021.

‘Non, non, rien n’a changé’: Over vergoedingsaanspraken voor makers uit hoofde van exploitatiecontracten

van Gompel, S.

Auteursrecht, 2021 (1), pp. 3-9, 2021.

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

Husovec, M., Quintais, J.

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. },
keywords = {},
pubstate = {published},
tppubtype = {inbook}
}

It’s 23 April 2021, so where is the Advocate General opinion in Case C-401/19 Poland v Parliament and Council?

Keller, P.

Kluwer Copyright Blog, 2021.

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.

A Serpent Eating Its Tail: The Database Directive Meets the Open Data Directive

van Eechoud, M.

IIC - International Review of Intellectual Property and Competition Law , 52 (4), pp. 375-378, 2021, (Editorial).

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

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

Kluwer Copyright Blog 2021.

EU copyright law round up – first trimester of 2021

Quintais, J., Trapova, A.

Kluwer Copyright Blog, 2021.

Nieuws in de platformeconomie

van Eechoud, M.

De Hofvijver, 11 (118), 2021.

Toward a Critique of Algorithmic Violence

Bellanova, R., Irion, K., Lindskov Jacobsen, K., Ragazzi, F., Saugmann, R., Suchman, L.

International Political Sociology, 15 (1), pp. 121–150, 2021.

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

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

2021.

Annotatie bij Hoge Raad 1 oktober 2019 (nr. 17/01305)

Nederlandse Jurisprudentie, 2021 (5/6), pp. 550-551, 2021.

Annotatie bij Hof van Justitie EU 16 juli 2020 (Data Protection Commissioner / Facebook Ireland & Schrems)(Schrems II)

Nederlandse Jurisprudentie, 2021 (5/6), pp. 455-458, 2021.

Formal meeting (oral evidence session): Digital trade and data

Irion, K.

2021.

Evaluatie 2020: Wet op de Inlichtingen- en veiligheidsdiensten 2017

Bot, Th. P.L., Dommering, E., van den Herik, L.J., Jacobs, B.P.F., Jones-Bos, R.V.M., Nagtegaal, W., Zijlstra, S.E. (Evaluatiecommissie Wiv 2017)

2021, (Den Haag: Ministeries BDZK en Defensie, 2021, 180 pp.).

Annotatie bij EHRM 8 oktober 2019 (Szurovecz / Hongarije)

Nederlandse Jurisprudentie, 2021 (4), pp. 230-231, 2021.

Front-running legislatures can foster AI that empowers users of digital technologies

Irion, K.

(ed.), Nadia El-Imam (Ed.): pp. 114-15, 2021.

EU Consumer Protection 2.0: Structural Asymmetries in Digital Consumer Markets

Natali Helberger, Orla Lynskey, Hans-W. Micklitz, Peter Rott, Marijn Sax,, Joanna Strycharz

2021.

Annotatie bij EHRM 30 januari 2020 (Breyer/ Duitsland)

Nederlandse Jurisprudentie, (51/52), pp. 7926-7929, 2021.

Poort, J., Zuiderveen Borgesius, F.

Personalised pricing: The demise of the fixed price?

2021, (Forthcoming as chapter 10 in: Kohl, U., & Eisler, J. (eds.), Data-Driven Personalisation in Markets, Politics and Law. Cambridge: Cambridge University Press, 2021.).

Getting under your skin(s): A legal-ethical exploration of Fortnite’s transformation into a content delivery platform and its manipulative potential

Ausloos, J., Sax, M.

Interactive Entertainment Law Review, 4 (1), 2021.

@article{SaxAusloos2021,
title = {Getting under your skin(s): A legal-ethical exploration of Fortnite’s transformation into a content delivery platform and its manipulative potential},
author = {Sax, M. and Ausloos, J.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3764489},
year = {2021},
date = {2021-03-01},
journal = {Interactive Entertainment Law Review},
volume = {4},
number = {1},
abstract = {This paper investigates the ethical and legal implications of increasingly manipulative practices in the gaming industry by looking at one of the currently most popular and profitable video games in the world. Fortnite has morphed from an online game into a quasi-social network and an important cultural reference point in the lifeworld of many (young) people. The game is also emblematic of the freemium business model, with strong incentives to design the game in a manner which maximises microtransactions. This article suggests that to properly understand Fortnite’s practices \textendash which we predict will become more widely adopted in the video game industry in the near future \textendash we need an additional perspective. Fortnite is not only designed for hyper-engagement; its search for continued growth and sustained relevance is driving its transformation from being a mere video game into a content delivery platform. This means that third parties can offer non game-related services to players within Fortnite’s immersive game experience. In this paper, we draw on an ethical theory of manipulation (which defines manipulation as an ethically problematic influence on a person’s behaviour) to explore whether the gaming experience offered by Fortnite harbours manipulative potential. To legally address the manipulative potential of commercial video game practices such as the ones found in Fortnite, we turn to European data protection and consumer protection law. More specifically, we explore how the European Union’s General Data Protection Regulation and Unfair Commercial Practices Directive can provide regulators with tools to address Fortnite’s manipulative potential and to make Fortnite (more) forthright.},
keywords = {},
pubstate = {published},
tppubtype = {article}
}

Regulation of news recommenders in the Digital Services Act: empowering David against the Very Large Online Goliath

Drunen, M. van, Helberger, N., Möller, J., Vrijenhoek, S.

Internet Policy Review, 2021, (Opinion).

The Pelham Chronicles: Sampling, Copyright and Fundamental Rights

Jütte, B.J., Quintais, J.

Journal of Intellectual Property Law & Practice, 16 (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}
}

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.

GRUR International - Journal of European and International IP Law, 70 (4), pp. 325-348, 2021.