The European Copyright Society, a group of prominent European scholars, today issued an opinion on the Svensson case (Case C-466/12), which is currently before the European Court of Justice. The case, which was referred to the Court by the Swedish Court of Appeal (Svea hovrätt) on 18 October 2012, raises the important question whether setting a hyperlink to a copyright protected work amounts to ‘communication to the public’ within the meaning of Article 3(1) of the Information Society Directive.

In a detailed, 17-page opinion the European Copyright Society argues that the answer to this question should be a resounding no. According to the Society, “The importance of this particular re [...]

Playing 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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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 [...]

Literary works, photos, films and music and other items that constitute our common cultural heritage are stored in the collections of cultural institutions, such as publicly accessible libraries, museums and archives. Many of these items are still protected by copyright, but their right holders cannot be identified or located – i.e. the works are so-called “orphan works”. This leads to a situation where cultural institutions that strive to digitize and make the parts of their collections still “in copyright” available via the internet risk being sued for infringement if the rightholders should reappear. This may cause many cultural institutions to refrain from digitizing and making ava [...]

On April 24, 2012 the Advocate General Yves Bot delivered his opinion in the UsedSoft case (C-128/11) concerning exhaustion in digital products that have not been distributed on a material carrier.

I think this may be one of the more interesting and bold opinions in the area of copyright law, although I am aware the competition is stiff. Should the Court accept the AG’s views this may even be a small forerunner of important changes in how copyright law adapts itself to the internet era.

The questions asked by the Bundesgerichtshof were :

1. Is the person who can rely on exhaustion of the right to distribute a copy of a computer program a ‘lawful acquirer’ within the meaning of Article 5(1) [...]

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 [...]

The Proposal for a Directive on certain permitted uses of orphan works, introduced in the European Parliament on 24 May 2011, has been following its merry way through the legislative meanders ever since. The debates around the text of the proposal are heating up right now, for the European Commission pushes for rapid adoption while stakeholders watch out against any measure possibly affecting their respective interests.

Already since the beginning of this year, the Danish Presidency has published two revised compromise proposals, one on 6 January and the second one on 10 February 2012. The last proposal was followed by a Presidency non-paper on a possible single database for orphan works for [...]

Patents Court London, 19 January 2012, Hoffman v Drug Abuse Resistance Education. A charity infringed copyright in photographs by including them in its website withouth the author’s permission. The fact that the charity was under a good-faith impression that it had permission to use the photographs, as they appeared in a website that was covered by Crown copyright, did not prevent the finding of infringement. Moreover, the innocence defence can apply as a bar to damages only when it can be shown that, at the time of the infringement, the defendant did not know, or had no reason to believe, that copyright subsisted in the work (CDPA, sec. 97). However, the defence does not apply when one beli [...]

This entry deals with some aspects of the decision by order by the Court of Justice of the European Union (CJEU) in Case C-302/10 (Infopaq II) on 17 January.

The reference for a preliminary ruling was brought to the CJEU by the Danish Supreme Court and concerns the interpretation of Article 5(1) and 5(5) of Directive 2001/29/EC (the so-called Infosoc directive). The reference was made in the context of proceedings between Infopaq – a company operating a media monitoring and analysis business – and Danske Dagblades Forening (DDF) – an association of Danish daily newspaper publishers. In the national case Infopaq had sought a declaration that it was not required to obtain the consent of [...]

On May 22 of this year Directive 2001/29/EC was exactly 10 years old – a birthday largely gone unnoticed. The ‘Copyright Directive’ or ‘Information Society Directive’ (for experts: ‘InfoSoc Directive’) marked an important stage in the process of harmonization of copyright and related rights in the European Union. In contrast to earlier directives that dealt with distinct – mostly technology driven – issues , such as computer software, databases, satellite and cable television, this directive sought to harmonize the main rights and limitations in a largely technology-neutral way.
The main aim of the Directive, as stated in its recital no. 4, was to foster creativity and grow [...]