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Back on the Green Road: How Imperative are Imperative Rules?

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Echos from the Dutch legal and scientific communities indicate that opinions widely diverge on the topic of the imperative character of proposed article 25 fa) of the Dutch Copyright Act in situations bearing an international dimension.

As discussed in my previous blogpost, this new provision would give authors of short works of science for which the research is funded in whole or in part by Dutch public funds, the right to make the work available to the public for free, after a reasonable time after the first publication, provided that the source of the first publication is indicated. In view of the international character of scientific research and of the scientific publishing market, I [...]

Flexibility. Is it all a matter of methodology and assumptions?

Image from page 53 of "American Fence, Catalog no. 27" (1915) Benjamin Gibert’s report for the Lisbon Council entitled ‘The 2015 Intellectual Property and Economic Growth Index: Measuring the Impact of Exceptions and Limitations in Copyright on Growth, Jobs and Prosperity’ raised eyebrows in The Netherlands. Not that the conclusion that ‘countries that employ a broadly “flexible” regime of exceptions in copyright also see higher rates of growth in value-added output throughout their economy’ came as a surprise, but no one ever expected The Netherlands to score lower than France on the topic of flexibility in copyright! Really!

How to explain my and other Dutch copyright experts’ dismay at this finding? Would the answer perhaps lie in the methodolo [...]

Almost there! In Support of the Green Road to Dutch Science!

Image from page 447 of "The theory and practice of horticulture; or, An attempt to explain the chief operations of gardening upon physiological grounds" (1855) The Netherlands Organisation for Scientific Research (NWO), the main public funding agency in the country, has been enforcing already for a few years an Open Access (OA) policy for the dissemination of the results of the research that it finances (both publications and data). The NWO does not mandate a specific form of OA: Green is as good as Gold! But the practical implementation of the Green Road is, as often the case, subject to the capability of individual authors to secure the right to deposit their article in an institutional repository, once they have transferred their rights to a publisher.

For an equally long period of time the Dutch legislator has been engaged in a process to am [...]

Poll Results on the Orphan Works Directive and Extended Collective Licensing

blog-poll-1---200PX“The results are just about as astonishing as the number of people who participated.”

In our first Kluwer Blog Poll, we asked for your reaction to the two following statements regarding the implementation of Directive 2012/28/EC on certain permitted uses of orphan works:

1) whether the Directive would significantly facilitate the mass-digitization efforts of cultural heritage institutions in daily practice; and
2) whether a system of extended collective licensing would provide the most workable solution to the problems of mass-digitization.

The results are just about as astonishing as the number of people who participated in this first edition of the poll: 2076 readers cast their reaction on [...]

First Blog Poll: Orphan works and cultural heritage institutions

blog-poll-1---200PXA relatively new feature on the different Kluwer Legal Blogs (e.g. the KluwerPatentBlog and the KluwerArbitrationBlog) is the so-called legal Blog Poll.

Not only because it is always nice to hear what the communis opinio is about recent developments in jurisprudence and legislative procedures or about new or revived theories and ideas, but also to initiate or to stir a discussion.

You will find our first poll below and in the right column of this site. If you want, you can attach your name to your survey answers. If you want the result to be anonymous, just leave out your name and email address. If you have additional comments, you can either mail them to us or leave them in the comment sect [...]

Private copying levy: The aftershocks of Padawan

thuiskopie“”The difficulty also lies in the fact that (to our knowledge) no levy system within the EU provided before Padawan for such a distinction and that the structure of the payment system did/does not lend itself easily to making such a distinction.”

There’s nothing wrong with a private copying levy, the CJEU decided in SGAE/Padawan, but “the indiscriminate application of the private copying levy to all types of digital reproduction equipment, devices and media, including cases in which such equipment is acquired by persons other than natural persons for purposes clearly unrelated to private copying, is incompatible with the directive.”

An interesting refinement of a controversial legal d [...]

Playing Catch 22 with the Public Domain

Goethe-BouquetPlaying Catch 22 with cultural heritage is quite simple: since cultural heritage institutions hardly ever are in a position to digitize their collection because of a lack of financial resources, they obtain funding on the basis of public/private partnerships.

Chances are that in return for the financial support needed for digitization, the private party will seek to retain exclusivity over the digitized objects and to impose restrictions on their further reproduction and making available to the public. The result: the collection is certainly digitized, but the public’s expectation of being able to freely re-use digitized works remains frustrated for as long as the private party has decided.

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To register or not to register?

On 27 September, the Dutch government introduced what at first glance would seem an inconsequential proposal, e.g. to amend the Register Act of 1970 whereby the possibility for legal and natural persons to register their copyright protected work at the tax office will be eliminated. Should the Dutch proposal be adopted, the registration of private deeds will be limited to those acts concerning subject matter for which registration is a legal formality.

The reasoning behind this proposal is that a deed that witnesses an agreement between two parties has probative force between the parties whether the deed is registered or not. Registration of a work or an invention offers no independent cop [...]

Are European orphans about to be freed?
Last week, the European Parliament approved the draft Directive on certain permitted uses of orphan works. The approval of the Council of Ministers is expected to occur shortly.

This is big news indeed, for it’s the first draft directive in the area of copyright law to make it this far in more than 10 years. It’s been commented and reported by many.

The proposed directive is striking in many respects. Most prominent is the virtually unanimous opinion that the directive ‘is a step in the right direction’, but that it ‘will not facilitate nor promote mass digitization and large-scale preservation of Europe’s vast cultural heritage’. This conjures up the image of the elephant giving birth to a [...]

France solves its XXe century book problem!

Without much noise, France recently adopted Act Nr. 2012-287 of 1st March 2012 relating to the digital exploitation of unavailable books of the 20th century. Contrary to past initiatives from the French lawmaker, the Act does not relate to orphan works, but rather to out-of-commerce works. Or, more precisely: books.

According to the explanatory memorandum to the Proposal, France is the first country in the world to put in place a modern and efficient mechanism to regulate the use of unavailable works, which forms today’s biggest obstacle to the digitization of cultural heritage. The French solution is presented as offering a response to the rejected Google settlement in the United States.

W [...]

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