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Open Access to Scientific Articles: Comparing Italian with German law

Valentina-MosconBy Valentina Moscon, Scholarship holder at the Max Planck Institute & University of Trento

The Italian Parliament recently approved a new law concerning the valorization of culture (Law of October 7, 2013, n. 112, G.U. n. 236, 8.10.2013). The law includes, in section 4, a regulation for Open Access (OA) to scientific publications.

With this new law, the Italian parliament aims to align Italy’s national law with the European Open Access policies that are clearly expressed in the EU Commission’s Recommendation of 17 July 2012 on “Access to and Preservation of Scientific Information” and the Communication “Towards better access to scientific information: Boosting the benefits of publ [...]

ECHR: Copyright vs. Freedom of Expression II (The Pirate Bay)

Dirk Voorhoof   and  Inger Hoedt-RasmussenECHR Decision of the ECtHR (5th section) of 19 February 2013. Case of Fredrik Neij and Peter Sunde Kolmisoppi (The Pirate Bay) v. Sweden, Appl. nr. 40397/12.

By Dirk Voorhoof, Ghent University and Inger Høedt-Rasmussen, Copenhagen Business School.

The criminal conviction of the co-founders of The Pirate Bay for infringement of copyright does not violate Article 10 ECHR.

Only a few weeks after the Strasbourg Court’s judgment in the case of Ashby Donald and others v. France (ECtHR 10 January 2013, see our blogs on the KluwerCopyrightBlog and the ECHR-Blog ) the Court has decided a new case of conflicting rights between copyright and freedom of expression.

The case concerned the complaint b [...]

Can e-lending land itself a spot under the public lending right?

elending-ebooks“However, in none of the studied countries, e-lending activities rely on a statutory copyright or lending right exception.”

By Kelly Breemen and Vicky Breemen, Institute for Information Law, Amsterdam (IViR).

Public libraries in various countries are increasingly involved in e-lending practices. Thus far, these practices are largely based on contractual agreements between the parties concerned rather than on a copyright exception or limitation. But why would public libraries not be allowed to lend e-books under the same conditions that apply to physical books, that is, without prior authorization but against equitable remuneration?

In the context of plans for developing a national digita [...]

ECHR: Copyright vs. freedom of expression

Dirk Voorhoof   and  Inger Hoedt-RasmussenECtHR (5th section), 10 January 2013, case of Ashby Donald and others v. France, Appl. nr. 36769/08.

By Dirk Voorhoof, Ghent University and Inger Høedt-Rasmussen, Copenhagen Business School.

“Although the European Court did not find a violation of Article 10 in the case of Ashby Donald and others v. France, the judgment in this case has definitely confirmed that copyright enforcement, restrictions on the use of copyright protected works and sanctions based on copyright law ultimately can be regarded as interferences with the right of freedom of expression and information.”

For the first time in a judgment on the merits, the European Court of Human Rights has clarified that a conviction base [...]

What’s the size of small parts? (Germany)

By Benjamin Schütze, Institute of Legal Informatics, Leibniz Universität Hannover

“Since its introduction in 2003, the provision marks the centre of a controversy between schools and institutions of higher education and copyright holders, especially publishing houses marketing a scientific – educational portfolio.”

About the right to make available small parts of a work for illustration purposes for teaching in schools and higher education and how it is interpreted by OLG Stuttgart in Alfred Kröner Verlag GmbH & Co. KG v Fernuniversität in Hagen (4 U 171/11).

The dispute between the parties centres on the question of whether Fernuniversität Hagen shall be permitted under § 52a Germ [...]

Spanish Supreme Court rules in favour of Google search engine

By Raquel Xalabarder, Universitat Oberta de Catalunya

“This ruling is very good news for the recent doctrinal attempts to bring some flexibility in the way copyright laws are being interpreted and applied.  It is difficult to predict the impact that this ruling may have in successive case law, but it is certainly an important milestone in adding flexibility in the application of copyright laws within technologically changing contexts. “

On 3 April 2012, the Spanish Supreme Court issued a major ruling in favor of the Google search engine (including its “cache copy” service):  Sentencia n.172/2012, of 3 April 2012, Supreme Court, Civil Chamber.

After accepting that none of the statutory [...]

Irelands’s SOPA

by Linda Scales, solicitor, Dublin. A copyright controversy has been raging in Ireland this week. The SOPA/PIPA debate fuelled fears that an unpublished piece of secondary legislation would provide a regime similar to that proposed in the US. The Irish instrument was labelled “Ireland’s SOPA”, even though no one knew what the document contained.

In the background to this controversy is the “UPC case”, in which the Irish High Court determined that Article 8(3) of the Information Society Directive had not been adequately transposed into Irish law. In consequence, the court was unable to grant injunctions to the music industry plaintiffs to restrain the ISP from permitting its service [...]

NL: Lending rights. Court of Appeal The Hague (Leenrecht / VOB)

Court of Appeal The Hague, 28 June 2011,  Stichting Leenrecht v. VOB

Lending rights. Plaintiff, the Dutch Association for Lending Rights, argues that an extended loan of library books should be considered a new loan and that therefore public lending rights are due. The Court of Appeal The Hague disagrees and concludes by referring to the rental and lending right directive that an extension cannot be considered to be a new communication to the public. The extension is part of the original loan, not a new loan and payment of a new remuneration for the extension period is therefore not due.

For the full text of this case click here.

A summary of this case will be posted on [...]

An American Perspective on the SAS v. WPL Case

Pamela SamuelsonGuest Blog by Pamela Samuelson, Berkeley Law School

Are programming languages, program functionality, and data interfaces protectable by copyright law or not? These questions were highly contentious in the United States during the mid-1980s to the mid-1990s. Plaintiffs in several cases argued that because these were parts of the “structure, sequence, and organization” (SSO) of programs, they should be within the scope of copyright protection accorded to programs as “literary works.” The EU is now confronting these same questions in the SAS Institute v. World Programming Ltd. case which is pending before the European Court of Justice (ECJ).

U.S. appellate court decisions in the Lot [...]

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