Copyright and Legal Affairs Report
Cases
European Union – ECJ defines works of parody and rules that rights holders' interests must be considered
The ECJ had defined “parody” for the purpose of European copyright law and has held that copyright owners can demand that their material is disassociated from works of parody that convey a discriminatory message.
The ECJ’s ruling in Deckmyn and Vrijheidsfonds VZW v Vandersteen and Others was from a case referred to it from Belgium, where a comic book author's heirs had sued a politician and a political party for copyright infringement after the politician published a calendar displaying a drawing that resembled a previous work published by the comic book author. The politician claimed that the reproduction of elements of the copyrighted drawing in the calendar was a work of parody and therefore qualified for protection from copyright infringement claims.
EU copyright law permits member states to have an exception for copyrighted material to be used "for the purpose of caricature, parody or pastiche" without rights holders' permission, and such an exception is part of Belgian law.
The Court held that a parody is one which "evoke[s] an existing work, while being noticeably different from it" and which "constitute[s] an expression of humour or mockery". A parody does not have to "display an original character of its own" other than displaying "noticeable differences with respect to the original parodied work". This means that the parody should be capable of being "reasonably … attributed to a person other than the author of the original work itself" and "should relate to the original work itself or mention the source of the parodied work."
Works of parody can be prohibited if their reproduction and publication of original copyrighted material does not achieve a "fair balance" between the parody creators' freedom of expression rights and the rights and interests of the rights holders, the CJEU said. All the circumstances of an individual case must be taken into account in this assessment. The Belgian court had to determine whether the drawing in the calendar "conveys a discriminatory message" which the original copyrighted drawing is associated with. The Court said that if the Belgian court does reach that finding then the "principle of non-discrimination based on race, colour and ethnic origin", guaranteed under EU laws, would apply and that copyright holders would "have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with such a message".
The UK exception on parody is due to come into force in October (STM Membership Matters August-September 2014), and this judgment will help in defining what a parody is and in setting ground rules for satirists ahead of the introduction of new rights to parody copyrighted works in the UK next month.
Whereas the finding that an allowable parody must be referable to the original work which is being parodied is welcomed, different views have been expressed on the requirement for a fair balance between freedom of expression and the interests of rightsholders and the rightsholders’ rights under EU law.
Source: Out-Law.com at http://bit.ly/WgxYCD
Also of interest is the commentary on the 1709 blog at http://the1709blog.blogspot.ch/2014/09/parody-deckmyn-and-right-to-object-to.html.
The judgment can be found at http://bit.ly/ZyJhIf.
Netherlands - Dutch court refers preliminary questions on the lending of e-books to EU Court of Justice
The Dutch Court of Appeal has referred preliminary questions on the right of exhaustion applying to the lending of e-books to the ECJ.
The Dutch Court of Appeal has referred preliminary questions on the right of exhaustion applying to the lending of e-books to the ECJ.
In the case The Dutch Association of Public Libraries v. Stichting Leenrecht, the Dutch court has asked, inter alia, for clarification on the scope of the decision of the UsedSoft case (STM News August-September 2012), in which the CJEU established that, under certain circumstances, the right of exhaustion of the distribution right in terms of Article 4(2) of the Software Directive 2009/24/EC may apply for computer programs downloaded from the copyright holder’s website.
This decision follows the uncertainty created on the point by the Tom Kabinet case (STM Membership Matters August-September A - 2014), where a preliminary injunction against a dealer in “used e-books” was refused because the court in that case considered that European law is not clear enough on whether the UsedSoft ruling on the resale of computer software licences applies to the resale of e-books or not.
Report on the Future of Copyright blog at http://bit.ly/1pMOGXd.
U.S. settlement ends four years of litigation over the inclusion of visual works in Google Books
Associations representing photographers, visual artists and affiliated associations, have recently reached a settlement with Google to settle a copyright infringement lawsuit it filed against Google in 2010.
Associations representing photographers, visual artists and affiliated associations, have recently reached a settlement with Google to settle a copyright infringement lawsuit it filed against Google in 2010.
Google’s settlement with the American Society of Media Photographers, Graphic Artists Guild, PACA (Digital Media Licensing Association), North American Nature Photography Association, Professional Photographers of America, National Press Photographers Association, and American Photographic Artists, does not need to be approved by the court. The terms include funding for the PLUS Coalition, a non-profit organisation dedicated to helping rightsholders communicate clearly and efficiently about rights in their works, but the remaining terms are confidential.
This settlement, which follows Google’s settlement with publishers two years ago (STM News November 2012) does not affect Google’s current litigation with the Authors Guild in the Google Books case (STM Membership Matters A - December 2013/ January 2014 and May 2014) or otherwise address the underlying questions in that trial.
Report in Publishers Weekly at http://bit.ly/ZfSepC.
European Union – ECJ rules that libraries may digitise print collections for display on electronic reading posts
Court of Justice of EU rules that libraries may digitise print collections for display on electronic reading posts even where digital versions of works are on offer by publishers on reasonable terms. Fair compensation is required where library patrons wish to print or download excerpts of digitised works.
On 11 September 2014 the Court of Justice of the EU (CJEU) ruled that Article 5(3)(n) of the EU Copyright Directive (2001/29) does not permit the making of further electronic or print copies from electronically displayed scans of printed works forming part of a library’s or an archive’s collection. However, the reproduction of small extracts of displayed works by students or other persons for non-commercial purposes or as part of reprographic uses could be justified under separate exceptions provided the pre-conditions under national law are met and provided there is no conflict with the normal exploitation of the works and no unreasonable prejudice to the rightsholders. In practice this means that where such on-copying is permitted on library premises, it must be accompanied with a remuneration right and only small excerpts may be taken, so as not to provide a disincentive to the publication of original electronic versions by the authors and publishers.
The CJEU ruled in this case on referral from the German Federal Court. The CJEU held that scanning copyright-protected works forming part libraries’ and archives’ collections may be undertaken by the libraries and archives in question, even if publishers offer electronic access or digital copies of such works on reasonable terms and conditions instead. Only where libraries and archives are bound by existing agreements to the contrary, will these actual agreements override reliance on the exception contained in Article 5(3)(n) of the Copyright Directive of the EU (2001/29).
The CJEU also clarified that making scanned copies in order to display electronically versions of print copies of works held in the collections of libraries is permissible as an ancillary act to the display, - the display itself constituting an exercise of the “communication to the public right” even though limited to persons present on library premises. The communication to the public right is an exclusive right held by the copyright holder and introduced by the very same EU Copyright Directive. Any public display rights offered simultaneously via several terminals must be limited in Germany to the number of print works purchased and forming part of the permanent collection. If simultaneous display in the library on more terminals is desired, additional permissions must be sought. The CJEU clarified that it was because of carefully crafted requirements such as these that the German exception was consistent with EU law and in keeping with applicable international obligations. The full judgment may be accessed at: http://curia.europa.eu/juris/document/document.jsf?docid=157511&doclang=EN
Policy
U.S. Copyright Office Releases Public Draft of New Compendium of Copyright Office Practices
The Registrar of Copyrights released a public draft of the third edition of the Compendium of U.S. Copyright Office Practices in August 2014, the first major revision in more than two decades.
The Registrar of Copyrights released a public draft of the third edition of the Compendium of U.S. Copyright Office Practices in August 2014, the first major revision in more than two decades.
The draft presents more than 1200 pages of administrative practices and sets the stage for a number of long-term improvements in registration and recordation policy. It will remain in draft form for approximately 120 days pending final review and implementation, taking effect on or around December 15, 2014.
The draft Compendium can be found at http://copyright.gov/comp3/announcement.html.
European Union - Scientists say EU data bill to harm research
Several European scientific institutes have warned in an open letter that new EU data laws will hamper research in areas such as smoking-related diseases or child nutrition, and that the data protection bill goes too far in requiring personal consent for use of people’s information in socio-economic studies.
Several European scientific institutes have warned in an open letter that new EU data laws will hamper research in areas such as smoking-related diseases or child nutrition, and that the data protection bill goes too far in requiring personal consent for use of people’s information in socio-economic studies.
The amendments in question - on articles 81 and 83 of the bill - were introduced by the European Parliament in 2013 and are expected to be finalised before the end of the year.
The European Parliament has become Europe’s main advocate for data protection in a political current fuelled, in part, by revelations of US abuse of people’s personal information in the name of counter-terrorism. This comes on top of the ECJ decision against Google which compels internet search services to delete people’s personal information if they file a request (STM Membership Matters June 2014 and July 2014). Although this ruling confirming the “right to be forgotten” was at first welcomed by privacy campaigners, it later attracted criticism when, for instance, convicted criminals used the new rules to whitewash their online identities.
Source: euobserver at http://euobserver.com/justice/125259.
The open letter is at http://bit.ly/1vLB5T2.
General
IFRRO/WIPO study on Text and Image based Copyright Levies published
IFRRO has published with WIPO a joint study on text and image based copyright levies. It is the first comprehensive and detailed study of such levies world-wide, and it analyzes the origins, scope and current use of these levies around the world, their role in ensuring easy legal access to copyright material, and shows how and why these levies differ from audio and audio-visual private copying levies.
IFRRO has published with WIPO a joint study on text and image based copyright levies. It is the first comprehensive and detailed study of such levies world-wide, and it analyzes the origins, scope and current use of these levies around the world, their role in ensuring easy legal access to copyright material, and shows how and why these levies differ from audio and audio-visual private copying levies.
The study is available on both the IFRRO website at http://www.ifrro.org/sites/default/files/levies_2014_online.pdf.
No, the monkey's selfie cannot be copyrighted
It is unlikely that a nature photographer whose camera was swiped by a monkey in the jungle to take a selfie can claim copyright in the picture.
It is unlikely that a nature photographer whose camera was swiped by a monkey in the jungle to take a selfie can claim copyright in the picture. Support for this contention appears in the US Copyright Office’s Compendium of U.S. Copyright Office Practices, (see story above), stating in §306 that a "photograph taken by a monkey" will not be registered.
Source: ArsTechnica at http://bit.ly/1z7JVaj.
For the UK perspective, see http://nipclaw.blogspot.ch/2014/08/monkey-business-copyright-in-photo.html.
So here is the picture, safely assumed to be part of the public domain:
The Monkey's Selfie
Mark Seeley, Carlo Scollo Lavizzari and André Myburgh
Public Affairs Report
North America
Congress ends regular session with no further action on public access
Despite several bills being introduced during the current 113th Congress that could impact STM publishing, Congress ended its regular session this month without taking action on any of the pending legislation. Of particular note is that the Senate bill to reauthorize funding for US federal science agencies, introduced in late July and expected to be considered this month, was not brought up for further consideration.
Any of these bills could be considered during the 2 month lame duck session of Congress which begins in November after the US Congressional elections, so STM will continue monitoring the situation closely. They also could be reintroduced when the 114th Congress convenes in 2015.
The bills of most concern to the STM community include those reauthorizing the science agencies as well as those specifically focused on creating public access mandates. The reauthorizing bills include the afore-mentioned S.2757, the “America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Reauthorization Act of 2014,” and H.R.4159, the “America Competes Reauthorization Act of 2014,” neither of which mentions the issue of public access; as well as H.R.4186, the FIRST Act of 2014. The public access bills, none of which has garnered much support to date, include H.R.708 and S.350, the “Fair Access to Science and Technology Research Act of 2013,” and H.R.3157, the “Public Access to Public Science Act.”
Europe
President elect Jean-Claude Juncker presented his team
After a period of speculation and discussions behind closed doors President elect Jean-Claude Juncker presented on 10 September the details of his newly composed structure and team of 27 EU Commissioners candidates. Altogether Juncker presented a strong line-up, with many new faces (only seven are returning EU Commissioners) while keeping his promise to appoint nine female Commissioners, some of them with important portfolios. The most striking feature is however the new structure. The European Parliament (EP) still has to give its approval to the Commission nominees. The EP committee confirmation hearings will start in the week of 29 September, and it can be expected that the MEPs will give some of them a hard time.
The new EC structure will comprise seven Super Commissioners, Vice Presidents, mainly from the centre-right in charge of projects teams and the 20 EU Commissioners. This new structure is a bold move and will enable Juncker to deal with the problem of having too many Commissioners without creating superfluous portfolios. It also highlights the policy priorities that Juncker intends to address with this new team. Interestingly five of the Vice Presidents come from small EU Member States, in particular from the North and East of the EU. How this kind of "hierarchical" structure will work in practice has to be seen because many of the EU Commissioners did hold senior Government roles in their native home countries.
The portfolios of the Vice-Presidents are organized around the political priorities of the Juncker Commission and underline the rationale of Juncker's approach, namely the focus on economic growth and job creation. Of particular interest to STM is the Vice President for the Single Digital Market, Andrus Ansip, the former prime minister of Estonia. Part of his team is also the EU Commissioner for Digital Economy and Society Günther Oettinger (a German centre-right), who will take over responsibility for the copyright file which was so far capably managed by the EU Commissioner for Internal Market, Michel Barnier.
Günther Oettinger, one of the returning EU Commissioners, served before as energy Commissioner and therefore it needs to be seen what are his views and experience on our issues. Carefully reading the announcements by Juncker we do know that he has already earmarked copyright as a policy area up for reform. In his appointment letter to Oettinger he writes: Copyright rules should be modernised, during the first part of this mandate, in the light of the digital revolution, new consumer behaviour and Europe’s cultural diversity. […].
Another interesting appointment for STM is the new EU Commissioner for Research, Science and Innovation Carlos Moedas, Portugal. He is one of the new faces and is the secretary of state to Portugal's centre-right minister. He does not have a particular background in research policy. His portfolio will be managed by the Vice President Alenka Bratusek (Slovenia) EU Commissioner for Energy Union. A last minute surprise change is that the Joint Research Centre, (JRC; a 3000-employee collection of the government laboratories and policy analysts) was transferred from the control of the Research Commissioner to the Commissioner for Education, Culture, Youth and Citizenship Tibor Navrascics (Hungary).
Concerning the European Parliament (EP), Committee hearings which will take place between 29 September and 3 October, the EP cannot veto individual Commissioners. They will vote on the overall team and if needed Juncker can replace them individually in order that he can get his full vote. The vote in the EP is scheduled for 23 October but experience of the past has shown that there were delays. If the process were to run smoothly and no delays would happen then the new Commission could start on 1 November. STM will continue to monitor this development.
Other EU Commissioners of interest are:
- Competition: Margrethe Vestager (Denmark)
- Trade: Cecilia Malmström (Sweden)
- Internal Market, Industry, Entrepreneurship and SMEs: Elzbieta Bienkowska (Poland)
- Justice, consumers & Gender Equality: Vera Jourova (Czech Republic)
Donald Tusk and Federica Mogherini appointed to EU’s top jobs
The Polish Prime Minister Donald Tusk is to leave his prime ministership of Poland to become the President of the European Council in the succession to Herman Van Rompuy. The Italian foreign minister Federica Mogherini will replace Baroness Catherine Margaret Ashton.
The allocation of jobs means that the centre-right European People’s Party has the presidency of the European Council and the presidency of the Commission (Tusk and Juncker), while the centre-left Party of European Socialists (PES) has the post of foreign policy chief (Mogherini). The choice of Tusk reflects the preference of the leading figure in the EPP, Angela Merkel, Germany’s chancellor.
DARIAH-EU is being transformed into its own legal structure
In August the European Commission gave the green light on the setting up of the Digital Research Infrastructure for the Arts and Humanities European Research Infrastructure Consortium (DARIAH ERIC).
In August the European Commission gave the green light on the setting up of the Digital Research Infrastructure for the Arts and Humanities European Research Infrastructure Consortium (DARIAH ERIC). The legal structure was introduced with the council regulation No. 1261/2013 as of 2nd December 2013 and the participation of countries associated to the EU Research framework programmes in ERICs is now on the same footing as EU Member States.
With this move DARIAH-EU is now an official legal body and might therefore have a greater impact on future developments in this area. Noteworthy to mention is that under their Scholarly Content Management Team they also have a manager covering best practices and Open Access.
Status report on Digital Agenda
On 28 August the European Commission (EC) updated the overview of their progress on the 132 Digital Agenda actions inclusive the Digital Agenda Review package.
On 28 August the European Commission (EC) updated this overview of their progress on the 132 Digital Agenda actions inclusive the Digital Agenda Review package.
Germany
German Government launches the 'Digital Agenda 2014-2017' and then a 'High-Tech Strategy'.
August saw the publication of the long awaited Digital agenda as well as a new High-tech Strategy.
In mid-August the long awaited digital agenda was published. As expected an improvement in the use of the copyrighted material and the introduction of further exceptions and limitations is mentioned. Concerning Open Access the paper talks about a strategy without listing any details. STM will continue the progress of the development of this agenda while working closely with the national publishing association "the Boersenverein".
Also in August the new High-tech strategy for Germany was published by the Federal Ministry for Education and Research (BMBF). Like the digital Agenda on page 43 there are paragraphs talking about an Open Access strategy and copyright regime which needs to be science friendly.
Open Access days in Cologne
During the Open Access days in Cologne at the beginning of September a new platform to measure the ranking of repositories was launched.
During the Open Access days in Cologne at the beginning of September a new platform to measure the ranking of repositories was launched. More information is available here: http://repositoryranking.org/
Barbara Kalumenos, Jack Ochs and David Weinreich