Globalizing User Rights-Talk: On Copyright Limits and Rhetorical Risks

Around the world, the focus of copyright policy reform debates is shifting from the protection of copyright owners’ rights towards defining their appropriate limits. There is, however, a great deal of confusion about the legal ontology of copyright “limits,” “exceptions,” “exemptions,” “defenses,” and “user rights.” While the choice of terminology may seem to be a matter of mere semantics, how we describe and conceptualize lawful uses within our copyright system has a direct bearing on how we delimit and define the scope of the owner’s control. Taking seriously the role of rhetoric in shaping law and policy, this Paper critically examines the recent embrace of the language of “users’ rights” to frame fair use, fair dealing, and other non-infringing acts. This terminology has been adopted to varying degrees by courts in Canada, Israel, and the United States and is increasingly employed by public interest advocates and policy-makers at the domestic and international level. In this Paper, I ask whether the rise of “user rights,” thus cast, is a positive development that will help to rein in some of copyright’s excesses, advancing the cause of content users and the public at large—or whether it is, perhaps, something of a false friend. Drawing on lessons from critical legal theory, I caution that “rights” may be a double-edged sword with the potential to undermine or obstruct the public interests, social values, and relationships that should inform copyright’s development in the digital age. As a rhetorical tool, “user rights” should therefore be wielded carefully if public interest advocates are to avoid self-inflicted injury

The Liability of Internet Service Providers for Copyright Infringements: exception to copyright protection derived from freedom of expression

The question of secondary liability of internet intermediaries for illegal content online is closely linked to the enjoyment of freedom of expression that has to be guaranteed both online and offline. The provisions concerning internet service providers’ liability in Europe include ‘notice and take down’ procedure, blocking measures and injunctions against intermediaries, which are all well-designed to protect right holders, however these rules do not properly take into consideration the concerns of securing freedom of speech on the internet. The aim of this thesis is to analyse the current role of fundamental freedom of expression in shaping the rules of ISP liability with the focus on copyright infringements online. The questions to answer are inter alia what is the relationship between two European courts when it comes to the interpretation of fundamental rights and freedoms; whether internet service providers can rely on the arguments deriving from freedom of expression in order to defend themselves against claims of copyright infringement, and whether internet intermediaries should be able to rely on these arguments based on their special role of providing access to information and cultural goods in information society. In order to answer these questions, current thesis concludes that current rules governing internet service providers in the European Union overlook the arguments of freedom of expression and do restrict the enjoyment of this basic right perhaps too much than necessary. In addition these provisions are outdated and rigid in order to be applicable to the rapid technological changes and the variety of available internet services. In order to overcome these shortcomings, current thesis focuses on the possibility to introduce a new exception to copyright protection based on public interest that could include the widest range of internet intermediaries that could be exempted from the liability for third parties’ copyright infringements online. Finally, current thesis concludes that the introduction of new exception is impeded by the adopted harmonising legislation in the European Union, and by the current international interpretation of the three-step test in TRIPS Agreement. However, these obstacles do not mean that the state of law has to stay unchanged

From Analogue to Digital: Reconsidering Copyright And The Exclusive Rights of Authors In An Era Of Technological Change

After the First Industrial Revolution, a series of technologies challenged copyright law and pushed the law to accommodate, expand, and develop. Compared with analogue technologies, digital technologies present an even greater challenge to copyright law, which is under pressure to adapt to the rapid changes in the technologies. When digital technology was in its infancy, analogue copyright law was extended to the digital realm and became known as digital copyright law. ‘Digital copyright law’, however, is no more than a tailoring, tinkering and twisting of analogue copyright law, which fits poorly into the new digital environment. In colloquial terms, it is fitting the square digital copyright law into a round digital hole. The digital world is an entirely new environment and digital technology is advancing at an unprecedented rate. There is a need for a new approach to digital copyright law that could accommodate digital technologies for disseminating copyright works in a more realistic manner than the current approach of simply adapting old analogue concepts. Current digital copyright law—a phrase that broadly refers to any provision or regulation dealing with copyright issues in the digital environment—is not consistent with technological developments. Digital technologies continually expand access to digital copyright works, whereas current digital copyright law significantly restricts such access. The approach suggested in this thesis allows content users to freely access digital copyright works while ensuring copyright holders’ adequate remuneration from the works. It is inspired by an existing business model under which users can freely replicate and disseminate (or access) digital copyright works but cannot freely use the works. To accommodate this model, the thesis suggests that current digital copyright law needs to be overhauled

Property and the Construction of the Information Economy: A Neo-Polanyian Ontology

This chapter considers the changing roles and forms of information property within the political economy of informational capitalism. I begin with an overview of the principal methods used in law and in media and communications studies, respectively, to study information property, considering both what each disciplinary cluster traditionally has emphasized and newer, hybrid directions. Next, I develop a three-part framework for analyzing information property as a set of emergent institutional formations that both work to produce and are themselves produced by other evolving political-economic arrangements. The framework considers patterns of change in existing legal institutions for intellectual property, the ongoing dematerialization and datafication of both traditional and new inputs to economic production, and the emerging logics of economic organization within which information resources (and property rights) are mobilized. Finally, I consider the implications of that framing for two very different contemporary information property projects, one relating to data flows within platform-based business models and the other to information commons

TOWARDS INSTITUTIONAL INFRASTRUCTURES FOR E-SCIENCE: The Scope of the Challenge

The three-fold purpose of this Report to the Joint Information Systems Committee (JISC) of the Research Councils (UK) is to: • articulate the nature and significance of the non-technological issues that will bear on the practical effectiveness of the hardware and software infrastructures that are being created to enable collaborations in e- Science; • characterise succinctly the fundamental sources of the organisational and institutional challenges that need to be addressed in regard to defining terms, rights and responsibilities of the collaborating parties, and to illustrate these by reference to the limited experience gained to date in regard to intellectual property, liability, privacy, and security and competition policy issues affecting scientific research organisations; and • propose approaches for arriving at institutional mechanisms whose establishment would generate workable, specific arrangements facilitating collaboration in e-Science; and, that also might serve to meet similar needs in other spheres such as e- Learning, e-Government, e-Commerce, e-Healthcare. In carrying out these tasks, the report examines developments in enhanced computer-mediated telecommunication networks and digital information technologies, and recent advances in technologies of collaboration. It considers the economic and legal aspects of scientific collaboration, with attention to interactions between formal contracting and 'private ordering' arrangements that rest upon research community norms. It offers definitions of e-Science, virtual laboratories, collaboratories, and develops a taxonomy of collaborative e-Science activities which is implemented to classify British e-Science pilot projects and contrast these with US collaboratory projects funded during the 1990s. The approach to facilitating inter-organizational participation in collaborative projects rests upon the development of a modular structure of contractual clauses that permit flexibility and experience-based learning.

How Much “New” Public Is Too Much? The CJEU’s VG Bild-Kunst Judgment and Non-Exhaustive Control Over a Work’s Consumption

Pursuant to the EU copyright acquis, right holders enjoy broad control over the communication of a work to the public. Following the VG Bild-Kunst judgment of the CJEU, right holders can rely on copyright to preclude framing of their otherwise freely available works on other websites. Circumventing technical measures placed by the right holders to prevent framing infringes their exclusive right of communicating works to the public. The judgment not only constrains secondary communication of a work, but also de facto places restrictions on the consumption of lawfully communicated works. The CJEU’s reasoning builds upon the expansive interpretation of the “new public” criterion coined in the preceding Renckhoff case. This paper argues that relying on the new public criterion in VG Bild-Kunst concealed the relevant circumstances of the case. Fundamental questions of the extent of the right holder’s exclusive control over authorized communication and the circumstances of a work’s consumption remained unexplored. It is concluded that revising the scope of application of the new public criterion is in order. Restricting the new public test to secondary communication and access to a work in its strict sense will expose the fundamental normative questions and the need to consider the underlying objectives of the copyright acquis.publishedVersio

Mediatization: an emerging paradigm for media and communication studies

Mediatization research draws on the history of media and the history of mediation within diverse fields of society to develop a scholarly and empirically grounded account of the mediation of history. It is first argued that mediatization is characterized by two crucial features: it concerns the effects of the media on a field of society that is historically separate from the media; and it recognizes that these effects work in a complex manner over a considerable period of time. The chapter then contrasts three ideal typical accounts of mediatization, each with a different focus and timescale, namely: the many and varied roles of mediation throughout the longue durée of cultural evolution; the institutionalized forces of high modernity converging to produce a dominant corporate media sector in recent centuries; and the still uncertain yet potentially radical socio-technological transformations in digital networks over recent decades. It is concluded, first, that the second, institutional perspective makes the strongest case for a theory of mediatization, but that all perspectives could be mutually compatible with further theoretical and empirical work. This latter should include questions of critique, should be developed in partnership with experts in the various fields being mediatized, and could usefully be collected together under a single hashtag to permit further synthesis

Reforming Information Law in Copyright\u27s Image

Symposium: Copyright Owners\u27 Rights and Users\u27 Privileges on the Interne