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IViR Survey Shows Public Support for Legalizing Digital Content Sharing through Alternative Compensation System

quintais Since 2012 a multidisciplinary research group at the Institute for Information Law (IViR), University of Amsterdam has been conducting a large-scale empirical study of Alternative Compensation Systems (ACS). In simple terms, ACS are legal mechanisms that for a small monthly fee would authorize non-commercial online uses by individuals, including the downloading and sharing of protected works (such as music, films, and books), while compensating rights holders.

On Saturday, 11th of July, 2015, we will present our results in Amsterdam, and discuss the implications of our findings in three high-profile panels examining the economic, socio-political and legal aspects of ACS . (You can access th [...]

Private Copying, an Institution Shaped by the Courts

Pablo HernandezThe progressive breakdown of the legal system regulating compensatory remuneration for private copying has given rise to some unusual cases.  We consider this to be true of a Spanish Supreme Court judgment of 6 March 2015 which had to rule on whether mobile telephones and memory cards were subject to compensatory remuneration payment, the amount of that payment and the application of the Padawan doctrine.  The legislation on which the court was to base its findings was shaky and limited to the general principle governing devices suitable for making recordings.  In view of this, the court had to decide on the royalty payable and the Padawan effect on such devices where the damages exceeded [...]

Report by the US Copyright Office on Orphan Works and Mass Digitization

J AxhamnOn June 4th, the US Copyright Office published a report on Orphan Works and Mass Digitization. The report addresses two situations where the current US copyright system may not fulfill its aim to “promote the Progress of Science”: orphan works and mass-digitization. As regards orphan works, the Office notes that a user’s ability to seek permission or to negotiate licensing terms is compromised by the fact that, despite his or her diligent efforts, the user cannot identify or locate the copyright owner. As regards mass digitization – which involves making reproductions of many works, as well as possible efforts to make the works publicly accessible – the Office observes that obtaini [...]

Copyright in the new Belgian Code of Economic Law: codification and new regulation

The Belgian legal order has recently welcomed a new legal code:  the Code of Economic Law (CEL).  Laws are not systematically arranged in codes in Belgium: there are some codes (such as the judicial code, the criminal code, codes of various types of taxes etc.) as well as countless separate laws, acts and regulations for its many levels of governance.  Now we have a Code of Economic Law (here in Dutch and in French), which is meant to gather in one volume various regulations pertaining to the field of “economic law”, such as competition law, consumer protection, product and service safety, e-commerce, banking and finance, specific enforcement proceedings, etc.

The Code of Economic La [...]

Red light for Sabam’s pricing system for Internet access providers: up- and downstream IAP traffic do not constitute communication or making a work available to the public

Rosario-Debilio2On the 13th March 2015, the President of the Brussels French speaking Court of First Instance pronounced a judgment to the detriment of Sabam, an important collective management organisation in Belgium. In 2011 Sabam decided to claim a fee from Internet access providers in exchange for a licence which allows these providers to communicate copyright protected works to the public (see here). I shall first discuss the control on the pricing system set up by Sabam. I shall then study how electronic communication law’s notions were used to define the scope of this pricing system. A final discussion will be dedicated to the rest of the procedure in this case setting the Belgian State against Sab [...]

EAÜ v MTÜ Safari Seiklused: An interesting Estonian case about damages awardable for copyright infringement

Elise-Vasamae-KCBIn its recent judgment in EAÜ v MTÜ Safari Seiklused (the “Safari” case), the Estonian court held that where a person has signed a licence agreement with an authors’ collecting society, with the intention of using the rights of authors commercially for a public performance, they must unquestioningly fulfil all of the terms of that agreement. According to the licence agreement signed between an Estonian concert organiser, MTÜ Safari Seisklused, and the Estonian Authors’ Society (EAÜ) the amount of the licence fee did not depend on how many authors EAÜ in fact represents. Therefore, although in this case EAÜ represented only one author from three whose works were being played publicl [...]

Why the reform of the Spanish law has been contested in the Spanish Constitutional Court

Pablo HernandezThe latest large-scale reform of the Spanish Copyright Act was published on 5 November 2014.  The key aspects of the reform are discussed here.  The bulk of the opposition to the reform contends that two provisions of the Act, namely, the new regulation for private copying and the imposition of a “one-stop shop” system, breach the Spanish Constitution.    

The current Spanish governing party decided as soon as they came to power, at the end of 2011, to abolish private copy payments by consumers in Spain in order to fulfil a campaign pledge to voters.  Since no one wanted to make private copying into an illegal practice, the solution was to keep the copyright limit and to add the [...]

Spain: APM v. SGAE, Spanish National Competition Commission, Resolution S/0460/13, 6 November 2014

In a recent decision, the Spanish Market and Competition Commission (CNMC), imposed a fine of 3.1 million Euros on the Spanish collecting society, SGAE, for demanding an excessive fee for concert licensing.

This decision is of particular interest because the Spanish competition authority has taken a new approach when interpreting the European law on the method of analysing the fairness of a fee.  This could lead to considerable uncertainty if this line of interpretation should become established.

A full summary of this case has been published on Kluwer IP Law

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France: TF1, Court of Cassation of France, First Civil Law Chamber, 13-22401, 13 November 2014

In this judgment, the French Supreme Court ruled that an author who is a member of a collecting society may not take action in infringement cases to protect his economic rights, except in the case of a deficiency on the part of said collecting society.

In the same judgment, the Supreme Court ruled that publishing agreements for the assignment of rights of an author must be in writing, and it is not possible to demonstrate the existence of an agreement by reference to the behaviour of the authors as regards the exploitation of the work.

A full summary of this case has been published on Kluwer IP Law

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France: Do members of collecting societies retain the right to sue?

Brad-SpitzArticle L.321-1 paragraph 2 of the French Intellectual Property Code (‘IPC’) provides that collecting societies are entitled to take legal action to defend the rights for which they are responsible under their articles of association (by-laws). Collecting societies may therefore take legal action to defend their repertoires and those of foreign collecting societies that they manage, whether before the civil courts (Supreme Court, 22 March 1988, 86-11874) or the criminal courts (Supreme Court, 25 October 1988, 86-91720). In its judgment of 13 November 2014 (13-22401), the French Supreme Court answered a very important question: do authors who are members of collecting societies retain the [...]

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