Extended Collective Licensing as Rights Clearance Mechanism for Online Music Streaming Services in Canada

According to the statistics compiled by the International Federation of the Phonographic Industry (IFPI), online paid streaming is currently the fastest growing segment of the recorded music market, with a 33% global revenue increase in 2018. Subscription-based services offering legal online paid streaming of music have now reached all corners of the planet. Among the most well-known services are Apple Music, Amazon Prime, Deezer, Google Play, Soundcloud, and Spotify. The creation and continued functioning of such services are contingent on the capacity of the service exploiters to clear all copyrights in the offered music repertoire, for the territory of operation. In practice, rights clearance for online streaming services proves incredibly complex and cumbersome, because every musical work available for streaming on a service is likely to have several right holders: an author, a performer, a record producer, and a music publisher. The number of rights owners entitled to claim rights on a musical work may even be much larger where that musical work was composed by multiple authors or performed by a group of artists, each potentially bound by separate agreements with publishers and record producers. For streaming services wishing to offer a global repertoire, it can be a daunting task to obtain permission for every single musical work, with respect to every territory. In view of the complexity of the music industry, fears of copyright infringement claims are not surprising. --- The article is further divided into four parts. Section 2 describes the legal framework underlying the online music streaming services in the European Union, the United States, and Canada, where we examine the current licensing practices for online streaming services in the same three jurisdictions. Section 3 describes what are ECLs, first giving an overview of the main characteristics of the ECL model and second, discussing how certain countries have implemented ECLs in practice. Section 4 discusses the challenges posed to Canadian CMOs in meeting the requirements of a legitimate ECL model. The most salient challenge concerns the requirement of representativeness of an ECL granting CMO, but section 4 also examines the safeguards that must be implemented to protect the interests of non-members, the role that the Copyright Board of Canada could be asked to play in the implementation of an ECL regime, and the compliance of ECLs with international obligations in the area of copyright law. Section 5 draws conclusions on the feasibility of using an ECL model for the licensing of online streaming of musical works

Regime for Use of Out-of-Commerce Works

A presentation of the new provisions in European Directive 2019/790 on Copyright in the Digital Single Market on the licensing and use of out-of-commerce works by cultural heritage institutions

Editorial

1 This issue marks the tenth month into the COVID-19 pandemic. Since March 2020, we have learned to live with the more or less strict public health measures put in place to ‘flatten the curve’ of infection from the virus. Words like ‘social distancing’, ‘mask wearing’, and ‘lockdowns’ have taken an entirely new meaning. In spite of these measures, the human toll is huge, most clearly among frontline workers and vulnerable people. While the curve is far from flat in most countries, the pandemic has brought to light the long time unacknowledged persistence of systemic inequalities: figures show that poorer, often racialized, communities are affected in a disproportionate way by the virus

Owning the Right to Open Up Access to Scientific Publications

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. In France, a similar presumption applies to works created by employees of the State. Even if researchers are in a position to exercise the rights on their works, they may, nevertheless, be required to transfer these to a publisher in order to get their article or book published. This paper, therefore, analyses the legal position of researchers, research institutions and publishers respectively, and considers what the consequences are for the promotion of OA publishing in light of the principles laid down in the Berlin Declaration and the use of Creative Commons licenses

Intellectual Property and Culture

This paper takes a critical look at the interaction between intellectual property law and culture using three examples, namely: 1) the need to preserve and disseminate culture, through the recognition of cultural heritage institutions\u27 vital role in society; 2) the need to maintain culture from depreciation, through the safeguard of a strong public domain; and 3) the need to let culture evolve, through the protection of Traditional Cultural Expressions (TCE\u27s). This brief study shows that, although IP rights can be said to afford useful protection to objects of culture – taken in the narrow sense of ‘culture’, they can also prove to be inappropriate for preserving and promoting culture or cultural diversity – taken the broader sense of the word, either because they are too rigid, last too long, or are ill-suited for the intended object of protection. As a result, a serious mismatch occurs between the private appropriation of objects of culture through IP rights and the full implementation of public policy objectives towards the protection and promotion of culture and cultural diversity

Safe to Be Open: Study on the Protection of Research Data and Recommendations for Access and Usage

Openness has become a common concept in a growing number of scientific and academic fields. Expressions such as Open Access (OA) or Open Content (OC) are often employed for publications of papers and research results, or are contained as conditions in tenders issued by a number of funding agencies. More recently the concept of Open Data (OD) is of growing interest in some fields, particularly those that produce large amounts of data – which are not usually protected by standard legal tools such as copyright. However, a thorough understanding of the meaning of Openness – especially its legal implications – is usually lacking. Open Access, Public Access, Open Content, Open Data, Public Domain. All these terms are often employed to indicate that a given paper, repository or database does not fall under the traditional “closed” scheme of default copyright rules. However, the differences between all these terms are often largely ignored or misrepresented, especially when the scientist in question is not familiar with the law generally and copyright in particular – a very common situation in all scientific fields. On 17 July 2012 the European Commission published its Communication to the European Parliament and the Council entitled “Towards better access to scientific information: Boosting the benefits of public investments in research”. As the Commission observes, “discussions of the scientific dissemination system have traditionally focused on access to scientific publications – journals and monographs. However, it is becoming increasingly important to improve access to research data (experimental results, observations and computer-generated information), which forms the basis for the quantitative analysis underpinning many scientific publications”. The Commission believes that through more complete and wider access to scientific publications and data, the pace of innovation will accelerate and researchers will collaborate so that duplication of efforts will be avoided. Moreover, open research data will allow other researchers to build on previous research results, as it will allow involvement of citizens and society in the scientific process. In the Communication the Commission makes explicit reference to open access models of publications and dissemination of research results, and the reference is not only to access and use but most significantly to reuse of publications as well as research data. The Communication marks an official new step on the road to open access to publicly funded research results in science and the humanities in Europe. Scientific publications are no longer the only elements of its open access policy: research data upon which publications are based should now also be made available to the public. As noble as the open access goal is, however, the expansion of the open access policy to publicly funded research data raises a number of legal and policy issues that are often distinct from those concerning the publication of scientific articles and monographs. Since open access to research data – rather than publications – is a relatively new policy objective, less attention has been paid to the specific features of research data. An analysis of the legal status of such data, and on how to make it available under the correct licence terms, is therefore the subject of the following sections

Study on the Implementation and Effect in Member States\u27 Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society: Final Report

This study, commissioned by the European Commission, examines the application of Directive 2001/29/EC in the light of the development of the digital market. Its purpose is to consider how Member States have implemented the Directive into national law and to assist the Commission in evaluating whether the Directive, as currently formulated, remains the appropriate response to the continuing challenges faced by the stakeholders concerned, such as rights holders, commercial users, consumers, educational and scientific users. As set out in specifications of the study set out by the Commission, its aim is \u27to assess the role that the Directive has played in fostering the digital market for goods and services in the four years since its adoption\u27. The impact of the Directive on the development of digital (chiefly online) business models, therefore, will be the focal point of our enquiry throughout this study

Copyright's impact on data mining in academic research

With the proliferation of digital data, data mining (DM)¿in the sense of the discoveryof valuable structures in large sets of data¿is expected to increase the productivityof many types of research. This paper discusses how copyright affects DM by aca-demic researchers. In some territories, academic DM is lawful if researchers havelawful access to input works. In other territories such as the European Union, lawfulDM additionally requires specific consent by rights holders. Based on bibliometricdata and quasi-experimental research designs, we show that where academic DMrequires specific rights holder consent: (1) DM publications make up a significantlylower share of total research output, and (2) stronger rule of law is associated withless DM research. To our knowledge, this study is the first to empirically documentan adverse effect of intellectual property (IP) on innovation under particular circum-stances. There is strong evidence that copyright exceptions or limitations promotethe adoption of DM research