Zbiorowe zarządzanie prawami autorskimi w świetle najnowszych dyrektyw unijnych. Zagrożenia dla kultury i praw majątkowych twórców

Collective management of copyright in the view of recent EU directives. Threats to the culture and authors’ property rights Copyright collecting agencies were established to protect the property rights of authors that were threatened as a result of the development of reprographic techniques. They are subjects of special status. Responsibilities of such copyright collecting agencies were defined in the directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. This directive, however, proved not to correspond to the current requirements of the fast-growing market and the new technical possibilities. Consequently, another directive was adopted by European Parliament and by the Council, directive 2014/26/EU, which content became the subject of discussion in this paper. Issues related to the representation of entities eligible for copyright and related rights, issues related to membership in the copyright collecting agencies the structure of such agencies, issues related to the management of revenues, as well as issues related to the transparency of the activities of these agencies, reporting and multi-territorial licensing on the rights of online use of musical works were subjects of regulations of this directive. The content of the directive is to be implemented into Polish law by the 10th of April 2016. However, it seems to carry significant risk for the development of Polish culture

Are Italian Rules on Copyright Collective Management in Line with EU Law?

Directive (EU) 2014/26 liberalised the market for collective management of copyright and related rights in Europe. In doing so it distinguished collecting societies into two categories. ‘Collective Management Organisations’ (CMOs) are entities that are either controlled (or owned) by rightholders or organised on a ‘non-profit’ basis. Conversely, ‘Independent Management Entities’ (IMEs) operate ‘for profit’ and are not controlled by rightholders. Prior to the adoption of this Directive, Italian law entrusted SIAE (Italian Society of Authors and Publishers) with a legal monopoly for the collective management of copyright. In 2017 a reform put an end to this system by opening the market to new entrants. However, according to the new rules, an entity can only manage copyright in Italy if it qualifies as a CMO. IMEs are therefore still not allowed to manage copyright in the Italian market. Such a restriction has raised a lively debate in Italy and its compatibility with EU law has recently been the object of a request for a preliminary ruling of the CJEU by the Tribunal of Rome. This work deals with the question of whether the choice of preventing IMEs from entering the Italian market is compatible with the principles of Directive 2014/26 and with general principles of EU law on the Internal Market

The 2019 Directive on Copyright in the Digital Single Market:some progress, a few bad choices, and an overall failed ambition

After four years of fierce debate, the EU directive on copyright in the digital single market was finally adopted in April 2019. The legislative text aims at adapting copyright to the digital world, remedying to some gaps and uncompensated uses of works and other subject matter and enhancing some valuable uses through new or reaffirmed exceptions. Two provisions have been particularly contested. The article 15 creates a new IP right benefitting press publishers in their online news in an attempt to force Google News and similar platforms to remunerate their use. The article 17 requires video sharing platforms, such as YouTube, to get a license for any copyrighted content uploaded by their users or, by default, to filter such content when requested by rights owners. But the directive has much more to offer and pursues an ambitious agenda, beyond its incompleteness, inconsistencies and defaults. More fundamentally, this directive marks the transition of the EU intervention mostly to harmonise existing national rules and to strengthen the rights of its creative sector, towards a genuine regulatory actor that purports to better organise a thriving European market and a fair society for creations, culture and information. It remains to be seen if the measures laid down by the directive are fit for that purpose. This paper analyses all articles of the directive in three parts: (1) the adaptation of exceptions to better satisfy digital needs, including the new exception for text and data mining; (2) the provisions aiming at enhancing an EU-wide access to creative content; and finally, (3) the provisions pursuing a well-functioning marketplace for copyright, that aims at restoring (perceived) failures or unfairness of current balances between the different stakeholders. This last part contains the most contentious provisions of the directive, i.e. the news publishers' right and the new liability regime of video sharing platforms, but also it most promising ones related to a better contractual protection of authors and performers

The Digital Technology Boomerang: New Intellectual Property Rights Threaten Global “Open Science”

There is a serious threat that ill-considered government support for expanding legal means of controlling access to information for the purpose of extracting private economic rents is resulting in the 'over- fencing of the public knowledge commons' in science and engineering. Such a new 'tragedy of the commons' would bring adverse long-run consequences for future welfare gains through technological progress, and re-distributional effects further disadvantaging the present economically less advanced countries of the world. Radical legal innovations in intellectual property protection that seriously jeopardize the effective conduct of open, collaborative science have been introduced by the little noticed European Database Directive of March 1996. This initiative forms an emblematic and substantively significant aspect of the broader set of transformations in intellectual property rights institutions that have been initiated in response to the economic ramifications of rapid progress in digital information technologies. The EC Directive poses numerous contentious issues in law and economics that will create ambiguities for business and non-profit activities in this area for years to come. The terms on which those issues are resolved will materially affect the costs and organizational feasibility of scientific projects that are of global reach and importance, especially those that depend heavily upon the collection, management and analysis of large volumes of observational data that cannot be regenerated. This paper sets out the economic case for the effectiveness of open, collaborative research, and the forces behind the recent, countervailing rush to strengthen and expand the scope of intellectual property rights protection. Focusing upon innovations in copyright law and the sui generis protection of hitherto unprotected content, it documents the genesis and analyzes the economic implications of the EC's Database Directive, and related legislative proposals (H.R. 3125, H.R. 354 and H.R. 1858) in the US. Several modest remedial proposals are advanced to mitigate the adverse impact of 'the digital technology boomerang' upon open science.intellectual property rights, copyright, sui generis protection of expressive material, economics of information-goods, open science, 'fair use,' scientific databases

Digitális felsőoktatás, szerzői jog és COVID-19 pandémia : empirikus kutatás a Szegedi Tudományegyetemen

Article 5 of the European Union’s Directive 2019/790 on Copyright and Related Rights in the Digital Single Market (CDSM Directive) is of crucial importance to anyone interested in digital learning and education. The new rules have broadened the scope of educational limitations and exceptions, but their effectiveness will be tested only over time. Such testing was made even more relevant after the global outbreak of the SARS-CoV-2 (COVID-19) pandemic. It has led to the closure of the premises of educational institutions and libraries, and made online access, use and sharing educational materials more urgent than ever. Hungary was the first EU Member State to implement Article 5 in April 2020, but there is scarce empirical evidence on whether the new rules have reached their goals at all. This paper summarizes the empirical analysis of the awareness, perceptions and use practises of students, educators and librarians of the University of Szeged with respect to the copyright aspects of digital (distance and online) learning and teaching in the pandemic

A TRAGEDY OF THE PUBLIC KNOWLEDGE ‘COMMONS’? Global Science, Intellectual Property and the Digital Technology Boomerang

Radical legal innovations in intellectual property protection have been introduced by the little noticed European Database Directive of March 1996. This initiative, part of the larger institutional transformations initiated in response to the economic ramifications of rapid progress in digital information technologies, poses numerous contentious issues in law and economics. These are likely to create ambiguities for business and non-profit activities in this area for years to come, and the terms on which those issues are resolved will materially affect the costs and organizational feasibility of scientific projects that are of global reach and significance. This is the case especially in fields such as geology, oceanography and climatology, which depend heavily upon the collection, management and analysis of large volumes of observational data that cannot be regenerated. More generally the conduct of open, collaborative science – along with many of the benefits that flow from it for the developed and the developing economies alike – may be seriously jeopardized by the consequences of the new database protections. This raises the spectre of a new and different “tragedy of the commons,” one created by continuing the unbalanced pressure to extract greater economic rents by means of controlling access to information. “Over-fencing,” which is to say, the erection of artificial cost barriers to the production of reliable public knowledge by means of reliable public knowledge, threatens the future of “the public knowledge commons” that historically has proved critically important for rapid advance in science and technology. The paper sets out the economic case for the effectiveness of open, collaborative research, and the forces behind the recent, countervailing rush to strengthen and expand the scope of intellectual property rights protection. Focusing upon innovations in copyright law and the sui generis protection of hitherto unprotected content, it documents the genesis and analyzes the economic implications of the EC’s Database Directive, and related legislative proposals (H.R. 3125, H.R. 354 and H.R. 1858) in the US. The discussion concludes by advancing a number of modest remedial proposals that are intended to promoted greater efforts to arrive at satisfactory policy solutions for this aspect of “the digital dilemma.”intellectual property rights, copyright, sui generis protection of expressive material, economics of information-goods, open science, “fair use,” scientific databases.

Odstępstwa od ochrony prawa autorskiego z uwagi na realizację wolności informacji i wolności prasy. Uwagi na tle wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 29 lipca 2019 r. w sprawie pomiędzy Funke Medien NRW GmbH a Bundesrepublik Deutschland

Public discussion in 2018, concerning the European Parliament, passing the Directive on copyright and related rights in the Digital Single Market, in the public discourse referred to as ACTA 2, evoked huge social emotions. The source of the conflict were two colliding values: the need to protect copyright and to ensure economic interest of authors and freedom of expression (freedom of the Internet), particularly important for users of works and Internet users. The decisions of the European Court of Justice, given on 29 July 2019 in the proceedings between Funke Medien NRW GmbH and Bundesrepublik Deutschland and the coincident decision in the case Spiegel Online GmbH vs Volker Beckow, deals with the above-given conflict of values. This article provides a description of the main arguments of the above-mentioned judgements of the ECJ and points at their consequences in the scope of changing the current interpretation of the provisions of copyright. The article also contains remarks on the influence of these decisions and their consequences for the disabling of content by providers of content-sharing service providers which violates freedom of expression considering the new Directive of 17 April 2019. The author presented arguments confirming that the Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market and the new way of interpreting copyright rules provided by the judgements of the ECJ has significantly changed the hitherto may of perceiving the rules of permissible use of works.Dyskusja publiczna z 2018 r. dotycząca uchwalenia przez Parlament Europejski dyrektywy w sprawie prawa autorskiego i praw pokrewnych na jednolitym rynku cyfrowym, nazywanej w dyskursie publicznym mianem ACTA 2, budziła ogromne emocje społeczne. U źródła tego konfliktu leżały dwie zderzające się ze sobą wartości: potrzeba ochrony praw autorskich i zabezpieczenia interesów ekonomicznych twórców oraz wolność wypowiedzi (wolność internetu), szczególnie istotna dla użytkowników utworów i użytkowników internetu. Wydane przez Trybunał Sprawiedliwości Unii Europejskiej w dniu 29 lipca 2019 r. orzeczenia w sprawie Funke Medien NRW GmbH przeciwko Bundesrepublik Deutschland oraz zbieżne z nim orzeczenie w sprawie Spiegel Online GmbH przeciwko Volkerowi Beckowi dotyczy wskazanego wyżej konfliktu wartości. Niniejszy artykuł zawiera opis głównych tez wskazanych wyżej rozstrzygnięć TSUE oraz wskazuje na ich konsekwencje w zakresie zmiany dotychczasowego sposobu interpretacji przepisów prawa autorskiego. W artykule zamieszczono także uwagi dotyczące wpływu tych rozstrzygnięć i ich konsekwencji w zakresie naruszającego wolność wypowiedzi blokowania treści przez podmioty świadczące usługi hostingowe w świetle wymagań nowej dyrektywy z dnia 17 kwietnia 2019 r. Ponadto wskazano argumenty świadczące o tym, że dyrektywa 2019/790/WE Parlamentu Europejskiego i Rady z dnia 17 kwietnia 2019 r. w sprawie prawa autorskiego i praw pokrewnych na jednolitym rynku cyfrowym oraz nowy, wytyczony w komentowanych orzeczeniach TSUE, sposób interpretacji przepisów prawa autorskiego istotnie zmienił dotychczasowy sposób postrzegania przepisów o dozwolonym użytku utworów

Revisiting Access to Cultural Heritage in the Public Domain: EU and International Developments

This is the final version. Available on open access from Springer via the DOI in this recordIn the past year, a number of legal developments have accelerated discussions around whether intellectual property rights can be claimed in materials generated during the reproduction of public domain works. This article analyses those developments, focusing on the 2018 German Federal Supreme Court decision Museumsfotos, Art. 14 of the 2019 Copyright and Related Rights in the Digital Single Market Directive, and relevant provisions of the 2019 Open Data and the Re-use of Public Sector Information Directive. It reveals that despite the growing consensus for protecting the public domain, there is a lack of practical guidance throughout the EU in legislation, jurisprudence, and literature on what reproduction media might attract new intellectual property rights, from scans to photography to 3D data. This leaves ample room for copyright to be claimed in reproduction materials produced by new technologies. Moreover, owners remain able to impose other restrictive measures around public domain works and data, like onsite photography bans, website terms and conditions, and exclusive arrangements with third parties. This article maps out these various legal gaps. It argues the pro-open culture spirit of the EU Directives should be embraced and provides guidance for Member States and heritage institutions around national implementation

L’accesso tramite data analysis a dati e informazioni protetti dal diritto d’autore, tra diritti esclusivi ed eccezioni di text and data mining

This study is focused on the new data access rules defined by the European Union directive n. 790 of 2019, on Copyright and related rights in the Digital Single Market, and their implementation in the Italian system. Among the provisions introduced by the European legislator in terms of access to data, articles 3 and 4 provide for two different exceptions in the case of Text and Data Mining (TDM or, in general, data analysis) techniques. TDM consists in the extraction, through software, of text and data, to interpret and extrapolate information whose output generates a knowledge discovery. These techniques stand as a fundamental moment of technological and cultural innovation in the data-driven society, and they have prompted the European legislator to intervene with specific regulations. The recent Copyright Directive is just a piece of a European framework where data is becoming the center of attention, with legislations overlapping in different fields of law, such as the most recent Digital Markets Act and Digital Services Act, that are just the last examples of an already full EU digital agenda. The survey will adopt as a point of view the observation of the exceptions as a tool for opening up data in enhancing access to information and in its relationship with exclusive rights, especially those copyright-related, which the new discipline aims to "open". The EU has thus set up an ambivalent liberalization mechanism, depending on the purpose pursued in conducting data analysis. A system of clear favor has been created for research organizations and cultural heritage institutions that use data analysis for scientific research purposes, while for any other subject and/or for any other purpose the opening of exclusive rights has been subject to an opt-out clause, also assuming for both cases that the person benefiting from the use has legitimate access to the material. It has been argued that the Directive, instead of encouraging research and access to information, strengthens the position of rightsholders, who would be forced to allow access to their works only to a limited circle of beneficiaries. This leads to the interpreter’s task to make sense of the provisions referred to in art. 4 of the Directive and art. 70-quater l. aut., to justify the introduction of a legislation that would risk to negatively affect access to data. To do this, different solutions may arise: through broader interpretations of the exceptions, or by legitimation of data analysis based on Copyright principles, or, finally, through antitrust regulation

NAKNADA ZA JAVNO SAOPŠTAVANJE I OSTVARIVANJE PRAVA STRANIH PROIZVOĐAČA FONOGRAMA

The rights of phonogram producers, the way of exercising and judicial protection are regulated by the Law on Copyright and Related Rights Act of 2009, as amended in 2011. These rights are defined as rights related to copyright. Related rights are rights that arise regarding the performance or duplication, production or distribution of copyrighted work. Similar rights which include the right of phonogram producers are inseparable from the copyright holder. It in no way affects the protection of authors in respect of their works, but also act as a special kind of private rights Adoption of the law and its amendments is part of comprehensive reform of intellectual property rights in Serbia, which was conducted during the last three years, which made further harmonization with the legal achievements of the European Union, especially with the Directive no. 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society. Domestic sources of law in these areas are complemented by the adoption of new regulations, and the Serbian intellectual property right is largely harmonized with the European Union, and the most important provisions of international conventions in the field of intellectual property, in particular the provisions of the Agreement on Trade - Related Aspects of Intellectual Property Rights (TRIPS) The legislation, opinions and attitudes of the legal theory of case law, which are presented in this paper include: mandatory collective exercise of the right to compensation for public broadcasting phonograms, the legal nature of the relationship of the Organization of Phonogram Producers of Serbia (OFPS) and right holders, process of proving the relevant facts in dispute billing charges, the subject matter jurisdiction of the court and the type of procedure, for the determination of tariffs on fees, the exclusion of certain categories of beneficiaries from paying fees in domestic law and jurisprudence of the EU, as well as the rights of foreign producers of phonograms.Prava proizvođača fonograma, način upotrebe prava kao i sudska zaštita regulisani su Zakonom o autorskim i srodnim pravima iz 2009, sa izmenama i dopunama iz 2011.godine. Ova prava su definisana kao srodna prava. Srodna prava su prava koja nastaju prilikom izvođenja, dupliranja, proizvodnje ili distribucije autorskog dela. Srodna prava koja uključuju pravo proizvođača fonograma su neodvojivo vezana za nosioca autorskog dela. Doneti Zakon zajedno sa usvojenim amandmanima deo je sveobuhvatne reforme prava intelektualne svojine u Srbiji, koja je sprovedena u poslednje tri godine, u cilju dalje harmonizacije sa pravnim tekovinama Evropske unije, sa posebnim osvrtom na Direktivu br. 29/2001 o harmonizaciji određenih aspekata autorskih i srodnih prava u informacionom društvu. Domaći izvori prava u ovim oblastima su dopunjeni usvajanjem novih propisa čime je pravo intelektualne svojine Republike Srbije u znatnoj meri usaglašeno sa pravom Evropske unije, kao i sa najvažnijim odredbama međunarodnih konvencija, posebno sa Sporazumom o trgovinskim aspektima prava intelektualne svojine (TRIPS). Zakonodavstvo, stavovi i mišljenja pravne teorije izneti prilikom tumačenja sudske prakse, koji su predstavljeni u ovom radu uključuju: obavezno kolektivno ostvarivanje prava na naknadu za javno emitovanje fonograma, pravnu priroda odnosa Organizacije proizvođača fonograma Srbije i nosioca prava, proces dokazivanja relevantnih činjenica u sporovima oko obračuna naknade, nadležnost sudova i vrstu postupka za određivanje visine naknade, isključivanje određenih korisnika plaćanja naknade u domaćem pravu i jurisprudenciji EU, kao i prava stranih proizvođača fonograma