Death and resurrection of copyright between law and technology

The paper reviews copyright philosophical, economic and social justification confronted by the dematerialization of creative outputs. Digital Rights Management (DRM) is the tool implemented by copyright owners to adjust to the advent of the Digital Era. The claim is that DRM effectively addresses digital threats and market failures. If this is true, what is left of the role of copyright law in the digital environment? This review suggests an argument for traditional copyright justifications to resist in the digital environment. As a consequence, digital tools such as DRM need to be engineered according to these justifications, in order to preserve the balance between law and technology. © 2014 © 2014 Taylor & Francis

A Wii too stretched? The ECJ extends to game consoles the protection of DRM- on tough conditions.

Analyses the European Court of Justice ruling in Nintendo Co Ltd v PC Box Srl (C-355/12) on whether the protections for technological protection measures (TPMs) under Directive 2001/29 art.6 extended to devices in games consoles that prevented users from playing other manufacturers' games. Assesses how art.6 should be applied to devices that circumvented TPMs but also served other commercial purposes. Considers whether videogames fell within the scope of Directive 2009/24 (Software Directive)

Bouncing Back from Oblivion: Can Reversionary Copyright Help Unlocking Orphan Works?

The importance and potential of mass digitization of cultural heritage institutions in Europe is well known, as also the stalemate created by the difficulty of clearing the rights of these works that are mostly out of commerce and whose right holder is not known or locatable. European legislators tried to address this stalemate by introducing a copyright exception for these so-called Orphan Works, which can be digitized and published after carrying out a Diligent Search. However, as the rules to implement this Diligent Search are quite demanding, and the sources to be consulted are largely inaccessible, cultural institutions struggle to get their collections out in the digital world, so that cay they can have a second life. Presumption of copyright ownership, moreover, make this picture even more blurry. After a work is created, it is delivered to a complex web of potential copyright transfers and attributions, which make the quest for rightsholders potentially endless. The reversion of copyright, which returns to the author under certain conditions (time lapse, inactivity of the publishers) adds complexity as it very much differs from country to country. The analysis of data from the EnDOW project in conjunction with ongoing and recent research (Towse 2018, Heald 2018, Dusollier 2014, Kretshmer 2012) shows that Reversionary Copyright, farm from being an outdated and scarcely useful tool (Bentley&Ginsburg 2010), has great potential to relieve the problem of Orphan Works, if correctly adjusted and interpreted

Copyright and Contract Law: Regulating User Contracts: the state of the art and a research agenda

A number of doctrinal concerns have been expressed regarding user contracts. To what extent do the terms of these licences depart from copyright law? Are the rights they grant to the owner broader or more restrictive? Are the entitlements of users, beneficiaries of copyright limits, hindered in some form? While no comprehensive empirical study has been conducted to analyse the different types of licensing agreements deployed on the market and their impact on copyright limits, a body of theoretical legal literature exists on this issue. This Article provides an overview of the doctrinal debate on this topic, with a particular focus on the United States, the United Kingdom, Belgium, Ireland, and Portugal. The latter three countries are interesting for our discourse because they have enacted legislation protecting copyright limits from contracts, by declaring contractual clauses that override some copyright limits null and void. This literature review is not only concerned with copyright exceptions to the exclusive rights of the author, but all of copyright‘s limits, namely the idea-expression dichotomy, the originality requirement, the first-sale (or exhaustion) doctrine, the extent of the economic rights, and the copyright term

Approximation and DRM: can digital locks respect copyright exceptions?

Technological Protection Measures (TPMs) are the hard core of Digital Right Management (DRM) systems, which enforce the rights of the copyright owner in the digital environment. Copyright scholars expressed concerns that TPMs do not comply with copyright exceptions and limits (Hugenholtz 2000; Koelman 2000; Dusollier 2003; Westkamp 2004).\ud A few solutions to this problem have been proposed in the field of internet services (Mulligan and Burstein 2002; Erickson 2003; Cohen and Burk 2001; Sobel 2003). However, none of these proposals is tailored to optical disks (CDs and DVDs). Yet, the report ‘Digital Broadband Content: Music’ of the OECD (2005) states that TPMs implemented on optical disks hinder copyright exceptions more often than those applied to internet services. Moreover, in Europe the Copyright Directive exempts TPMs implemented on internet services from compliance with copyright exceptions. This paper therefore outlines possible ways to implement TPMs on optical disks in Europe, in order to achieve their compliance with a list of fundamental copyright exceptions, as identified by previous research (Favale 2008

Fine-Tuning European Copyright Law to Strike A Balance Between the Rights of Owners and Users

Directive 2001/29 (the EU Copyright Directive) aims to repress copyright infringement in the digital environment through the harmonisation of copyright discipline and the safeguard of technological protection measures (TPMs). It claims that this harmonisation is instrumental to the protection of the exclusive rights of the owners while granting protection to the fundamental rights of the public, such as freedom of information and the circulation of culture. The contribution of this paper is twofold. First, by analysing the Directive’s national implementation in the 27 Member States of the European Union, it assesses the extent to which the Directive attained the intended harmonisation and whether this is effective to achieve the balance of rights. Secondly, after the identification of areas of dysfunction, the paper proposes an alternative strategy to reach a harmonisation able to strike a better balance between the rights of owners and users

The relationship between copyright and contract law

Contracts lie at the heart of the regulatory system governing the creation and dissemination of cultural products in two respects: (1) The exclusive rights provided by copyright law only turn into financial reward, and thus incentives to creators, through a contract with a third party to exploit protected material. (2) From a user perspective purchases of protected material may take the form of a licensing contract, governing behaviour after the initial transaction. Thus, a review of the relationship between copyright and contract law has to address both supply- and demand-side issues. On the supply side, policy concerns include whether copyright law delivers the often stated aim of securing the financial independence of creators. Particularly acute are the complaints by both creators and producers that they fail to benefit from the exponential increase in the availability of copyright materials on the Internet. On the demand side, the issue of copyright exceptions and their policy justification has become central to a number of reviews and consultations dealing with digital content. Are exceptions based on user needs or market failure? Do exceptions require financial compensation? Can exceptions be contracted out by licence agreements? This report (i) reviews economic theory of contracts, value chains and transaction costs, (ii) identifies a comprehensive range of regulatory options relating to creator and user contracts, using an international comparative approach, (iii) surveys the empirical evidence on the effects of regulatory intervention, and (iv) where no evidence is available, extrapolates predicted effects from theory

Fundamental Disjunctions in the EU Legal Order on Human Tissue, Cells & Advanced Regenerative Therapies

The unprecedented expansion of EU controls on biological materials under the aegis of the EU’s expanding remit on public health has caused a major reshaping of the regulatory landscape of the life-sciences in Member States. This article analyzes the challenges to national and supranational legal orders posed by the integration of ethical norms within the EU Human Tissue and Cells Directive 2004/23/EC and the Advanced Therapies Regulation (EC) 1394/2007. We show how the infiltration of substantive moral norms in morally contested fields of biotechnology is facilitated by the incorporation into the EU legislative texts of fundamental norms such as respect for human dignity contained in the EU Charter of Fundamental Rights and the Council of Europe’s Convention on Human Rights and Biomedicine. The first part of the article sets out the constitutional and normative challenges posed by the EU legislative intervention on ethical matters in the field of health and new biotechnologies. The second part examines the substantive content of the integrated fundamental norms highlighting their open-ended and indeterminate character and the areas of overlap and disjunction. The third part introduces an analytical matrix which is deployed to analyze the reach of fundamental norms in shaping the more specific ethical controls in the legislative texts and reveals how the mix of technical and evaluative norms resolves the ethical and constitutional tensions in the EU texts