Abstract
As observed in Chap. 6, of the available mechanisms for the protection of digitised versions of rare documents, copyright law provides an established legal framework aimed at balancing the interests of copyright owners and users of copyright protected content. However, as demonstrated in Chap. 7, a digitised version would not fulfil the required standard of originality to qualify for copyright protection within the existing EU law framework. Thus, it is necessary to find a suitable alternative mechanism for the regulation of digitised versions that would be able to achieve an effective balance between the competing interests of users and producers. It is argued that the best strategy would be to bring the regulation of digitised versions under the related rights framework that exists within EU law.
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Notes
- 1.
As Pollaud-Dulian notes, related rights, are neighbouring to copyright in that they revolve around the creation, because its right-holders contribute in making the creation known by interpreting it, financing it or communicating it. Frédéric Pollaud-Dulian, Le Droit D’Auteur (2nd Ed, Economica 2014) 1494.
- 2.
ibid 1494. See also André Lucas, Propriété Littéraire et Artistique (5th Edition, Dalloz 2015) 135.
- 3.
Pollaud-Dulian (n 1) 1494–1495. For example, a musician who performs a musical score, thereby executing the musical work in a way that it could be perceived by the public, is granted a related right over his performance. Similarly, the producer of phonogram (i.e., sound recording) that fixates upon that musical performance in such a way that it can be reproduced and distributed to the public is granted a related right over the phonogram recording.
- 4.
André Lucas, Agnès Lucas-Schloetter and Carine Bernault, Traité de la propriété littéraire et artistique (5th edn, Lexis Nexis 2017) 1013.
- 5.
World Intellectual Property Organization, Neighboring Rights’: Guide to the Rome Convention and to the Phonograms Convention (WIPO 1981) 12. “[T]he purist may complain that, notwithstanding the skill and talent of a recording engineer or a broadcast producer, the making of a record or of a broadcast is, after all, an essentially industrial act, whereas the performances of artistes are of their nature acts of spiritual creation.”
- 6.
It is noted that the right granted to performing artists constitutes a special case within the related rights regime that is primarily focused on protecting entrepreneurial investment against acts of unfair competition, as opposed to a personal creative investment. See Herman Cohen Jehoram, ‘The Nature of Neighboring Rights of Performing Artists, Phonogram Producers and Broadcasting Organizations’ (1990) 15 Columbia VLA Journal of Law & the Arts 76.
- 7.
ibid 75.
- 8.
George Bodenhausen, ‘Protection of “Neighboring Rights”’ (1954) 19 Law and Contemporary Problems 156, 157.
- 9.
ibid 158.
- 10.
ibid.
- 11.
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 26 October, 1961, 496 U.N.T.S. 43. The Convention came into effect in 1964.
- 12.
Cohen Jehoram (n 6) 76.
- 13.
WIPO Guide to Rome Convention (n 5) 7, “For ease of reference, the expression ‘neighboring rights’ will be used here to cover the rights granted by the Rome Convention to performers, producers of phonograms and broadcasting organizations (without prejudging the question whether or not these are in truth neighbors to the copyright of authors)”.
- 14.
See Article 1(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10 (InfoSoc Directive). See also Article 1 of Directive 2014/26/EU of the European parliament and of the council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market [2014] OJ L 84/72; Article 5 of Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission [1993] OJ L 248/15.
- 15.
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments – Results of the Uruguay Round vol 31; 33 ILM 81 (1994) (TRIPS Agreement).
- 16.
TRIPS Agreement Article 14.
- 17.
WIPO Performances and Phonograms Treaty, Apr. 12, 1997, S. Treaty Doc. No. 105-17 36 ILM 76 (1997) (WPPT). The WPPT came into effect in 2002.
- 18.
WPPT Article 1(1).
- 19.
For example, in the case of producers of phonograms, the Rome Convention granted a right of reproduction (Article 10) and a single right to equitable remuneration for publication of the phonogram for commercial purposes or reproduction for the direct broadcast or communication to the public of the phonogram (Article 12). The TRIPS Agreement preserved the right of reproduction [Article 14 (2)] but also introduced a right to authorise or prohibit the commercial rental of originals or copies of phonograms [Article 14(4)]. The WPPT further expanded upon these instruments by also granting to phonogram producers the right to making available by wire or wireless means. For a comprehensive evaluation of the progress achieved by the WPPT see Jörg Reinbothe and Silke von Lewinski, The WIPO Treaties on Copyright: A Commentary on the WCT, the WPPT and the BTAP (2nd Edition, Oxford University Press 2015) 597–606.
- 20.
Also of relevance is the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (1971) and the Beijing Treaty on Audiovisual Performances (2012).
- 21.
The EU adopted the TRIPS Agreement by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, on matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994) [1994] OJ L 336/1.
- 22.
The EU signed the WPPT in 2000. See Council Decision of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, [2000] OJ L 89/6. The EU ratified the WPPT in 2009.
- 23.
Thomas Dreier in Thomas Dreier, Gernot Schulze and Louisa Specht (eds), Urheberrechtsgesetz: Urheberrechtswahrnehmungsgesetz, Kunsturhebergesetz Kommentar (5th Edition, CH Beck 2015) §§70ff para 1.
- 24.
Henri Desbois, Le Droit D’auteur En France (3rd Edition Dalloz 1978) 193.
- 25.
Hugh Laddie, Peter Prescott and Mary Vitoria, The Modern Law of Copyright and Designs (LexisNexis, 4th Ed, 2011) 385–87. The Copyright Related Rights Act No. 28 of 2000 of Ireland, protects sound recordings, broadcasts and typographical arrangements under copyright law [s 17 (2)], rights of performers are separately dealt with under Chapter III and IV of the Act.
- 26.
Lionel Bently and Brad Sherman, Intellectual Property Law (4th Edition, Oxford University Press 2014) 32. See also Cornish who notes that in the English common law tradition, these are considered entrepreneurial copyright that give protection to entrepreneurial skills in an aesthetic field. WR Cornish, Intellectual Property (2nd Edition, Sweet & Maxwell 1989) 265.
- 27.
Hector L MacQueen, Charlotte Waelde and T Laurie Gaeme, Contemporary Intellectual Property: Law and Policy (Oxford University Press 2008) 229.
- 28.
ibid.
- 29.
Copyright Act 1911 (1&2 Geo 5 Ch 46) s 19 (1), ‘Copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were musical works (…).’
- 30.
Cornish (n 26) 299–300.
- 31.
s 13 of the Copyright Act 1956 (UK).
- 32.
s 14 Copyright Act 1956 (UK).
- 33.
s 15 Copyright Act 1956 (UK).
- 34.
Cornish (n 26) 265.
- 35.
Copyright, Designs and Patents Act 1988 (UK).
- 36.
Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property [1992] OJ L346/61. See also Sylvie Nerisson, ‘The Rental and Lending Rights Directive’ in Irini Stamatoudi and Paul Torremans (eds), EU Copyright Law: A Commentary (Edward Elgar 2014) 1103.
- 37.
Michael Walter and Silke von Lewinski, European Copyright Law: A Commentary (Oxford University Press 2010) 255.
- 38.
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property [2006] OJ L 376/28 (Rental and Lending Rights Directive).
- 39.
Recital 4 of the Rental and Lending Rights Directive.
- 40.
Recital 7 of the Rental and Lending Rights Directive.
- 41.
Council Decision of 16 March 2000 (n 22).
- 42.
InfoSoc Directive (n 14).
- 43.
Recital 13 of the InfoSoc Directive. See also IViR Report on the implementation of the InfoSoc Directive which observes that, “one of the principal objectives behind the adoption of the Information Society Directive was to transpose into Community law the main international obligations arising from the WIPO Internet Treaties”. Lucie Guibault and others, ‘Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society.’ (IViR2007) 70 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2006358> accessed 31 January 2019.
- 44.
Article 5(3) and (4) of the InfoSoc Directive.
- 45.
Article 5(5) of the InfoSoc Directive. The three-step test was introduced in Article 13 of the TRIPS Agreement (n 15) and is as follows, “[m]embers shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”.
- 46.
Justine Pila and Paul Torremans, European Intellectual Property Law (Oxford University Press 2016) 246.
- 47.
Andreas Rahmatian, ‘Originality in UK Copyright Law: The Old “Skill and Labour” Doctrine Under Pressure’ (2013) 44 IIC 4, 60.
- 48.
See Dreier (n 23) 1223, “[i]nsoweit bezweckt der Schutz die Absicherung der in der wirtschaftlichen, organisatorischen und technischen getatigen Investition”. (“To this extent, the purpose of protection is to safeguard the investment made in the economic, organisational, and technical aspects”). (Translated into English by the author).
- 49.
Bently and Sherman (n 26) 32.
- 50.
Cohen Jehoram (n 6) 76.
- 51.
Dreier (n 23) §§70ff para 2, “[s]oweit dieser Investitionsschutz im Zentrum steht, lassen sich die verwandten Schutzrechte als ein zu Ausschliesslichkeitsrechten verdichteter wettbewerbsrechtlicher Nachahmungsschutz (…) verstehen”.
- 52.
See Sect. 7.4.2.1.2 for a full discussion.
- 53.
Article 7 of the Directive 96/9/EC of the European Parliament and of the Council of the European Union of 11 March 1996 on the legal protection of databases [1996] OJ L 77/20 (Database Directive).
- 54.
Pila and Torremans (n 46) 246 observe that:
EU law requires the recognition and protection by Member States of related rights in respect of a closed list of non-authorial expressive subject-matter, including broadcasts, phonograms, fixation of films and performances, and certain databases (…). Thus, copyright subsists in databases as authorial works (…), whereas the sui generis database right subsists in databases the contents of which are the product of substantial commercial investment, and confers more limited rights focused on the protection of those contents and that investment.
- 55.
Database Directive (n 53) Recital 9.
- 56.
Paul Goldstein, International Copyright: Principles, Law and Practice (Oxford University Press 2001).
See also Cohen Jehoram (n 6) 77 who states that:
[B]efore and during most of the nineteenth century, performers did not feel any need for protection along the lines of copyright; their performances could not be fixed on any recording or be reproduced, (…). The picture changed radically with the inventions of professional sound recordings, films, radio, television, cable-retransmission and all sorts of equipment for private recording. This technological revolution made performers as vulnerable as traditional authors to unauthorized exploitation by third parties.
- 57.
Vivant and Brugière note that, the appearance of related rights (droits voisins) in the French copyright law system originated with technologies that enabled the fixation and reproduction of sounds. Michel Vivant and Jean-Michel Bruguière, Le Droit d’auteur et Droits Voisins (3rd Edition, Dalloz 2016) 1029.
- 58.
The term ‘private ordering’ as used here refers to decentralised processes of rule-making through which private entities create their own rules to substitute the default rules provided by legislation or case law. Branislav Hazucha, ‘Intellectual Property, Private Ordering and Legal Certainty’ in Mark Fenwick and Stefan Wrbka (eds), Legal Certainty in a Contemporary Context (Springer 2016) 34. Elkin-Koren differentiates private ordering from public ordering based on the process through which rules are generated; public ordering models being based on centralised institutions that formulate rules such as the legislature and the courts, in contrast to which private ordering processes is decentralised and spread among various social agents. Niva Elkin-Koren, ‘Copyrights in Cyberspace – Rights without Laws?’ (1998) 73 Chicago Kent Law Review 1155, 1161.
- 59.
Elkin-Koren (n 58) 1172.
- 60.
Hazucha (n 58) 34.
- 61.
Elkin-Koren (n 58) 1180–1182.
- 62.
Graeme B Dinwoodie, ‘Private Ordering and the Creation of International Copyright Norms: The Role of Public Structuring’ (2004) 1 Journal of Institutional and Theoretical Economics 160, 168.
- 63.
ibid.
- 64.
Although the InfoSoc Directive requires the application of DRM to be subject to certain specified limitation and exceptions, as already discussed in Chap. 6, Sect. 6.1, this provision can be overridden by private arrangements and is not adequate for bringing about a balance between the interests of producers and users.
- 65.
Dinwoodie (n 62) 167.
- 66.
Valérie-Laure Benabou and Séverine Dusollier, ‘Draw Me a Public Domain’, in Paul Torremans (ed), Copyright Law: A Handbook of Contemporary Research (Edward Elgar 2007) 164.
- 67.
Article 3 of the Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights [1993] OJ L 290/9, replaced by Article 3 of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights [2006] OJ L372/12 (Term Directive).
- 68.
ibid Article 4.
- 69.
Database Directive (n 53) Article 10 (1).
- 70.
For further discussion on this point see Julie E Cohen, ‘Copyright, Commodification and Culture: Locating the Public Domain’ in P Bernt Hugenholtz and Lucie Guibault (eds), The Future of the Public Domain (Kluwer Law International 2006). See also Jane C Ginsburg, ‘Copyright, Common Law and Sui Generis Protection of Databases in the United States and Abroad’ (1997) 66 University of Cincinnati Law Review 151.
- 71.
Benabou and Dusollier (n 66) 171.
- 72.
Drexl and von Lewinski report that a survey of German law indicates that within the German legal framework, freedom of contract may prevail in principle but be subject to certain conditions imposed by general civil law relating in particular to standard form contracts. They further cite Cornish [WR Cornish, Intellectual Property (5th Edition, Sweet & Maxwell 2003)] for the view that the fair dealing exception in the UK law prevails over contract. Josef Drexl and Silke von Lewinski, ‘The Digitising of Literary and Artistic Works’ (2007) 11 Electronic Journal of Comparative Law 15 available at <www.ejcl.org/113/article113-19.pdf> accessed 31 January 2019.
- 73.
As observed by Drexl and von Lewinski, “it may seem astonishing that such a fundamental question in most countries is either hardly discussed, or is unclear or controversial”. ibid.
- 74.
Article 7 of the Database Directive (n 53).
- 75.
EU Commission, ‘DG Internal Market and Services Working Paper: First Evaluation of Directive 96/9/EC on the Legal Protection of Databases’ (2005) 3.
- 76.
ibid 9.
- 77.
ibid 13.
- 78.
Urheberrechtsgesetz 1965 BGBl. I S. 1273 (Copyright Act of Germany).
- 79.
Martin Vogel in Gerhard Schricker and Ulrich Löwenheim (eds), Urheberrecht: Kommentar (4th ed, CH Beck 2010) § 72 para 13.
- 80.
Thomas Dreier and Louisa Specht, ‘Germany’ in Reto M Hilty and Sylvie Nérisson (eds), Balancing Copyright – A Survey of National Approaches (Springer 2012) 431.
- 81.
See decisions delivered by the Federal Supreme Court of Germany in the cases, BGH, 08.11.1989 – I ZR 14/88, GRUR 1990, 669 – Bibelreproduktion and BGH, 07.12.2000 – I ZR 146/98, GRUR 2001, 755 – Telefonkarte.
- 82.
See Sect. 7.4.2.1.2.
- 83.
LG Berlin 3.05.2016, 15O 428/15 – Reiss Engelhorn Museum.
- 84.
Gemma Minero, ‘The Term Directive’ in Paul Torremans and Stamatoudi, Irini (eds), EU Copyright Law: A Commentary (Edward Elgar 2014) 248, 273.
- 85.
Copyright, Designs and Patents Act of 1988 (UK). Copyright protection for typographical arrangement was first introduced by the UK Copyright Act of 1956, s 15.
- 86.
ibid. Section 15 of the CDPA states that copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published. Bently and Sherman note that the protection granted to typographical arrangements largely remain a peculiarity of British and British-influenced copyright, and has no counterpart in other jurisdictions. Bently and Sherman (n 26) 90.
- 87.
ibid CDPA s 8(2).
- 88.
The Newspaper Licensing Agency v Marks and Spencer plc [2003] 1 AC 551, 558.
- 89.
ibid 555.
- 90.
Hugh Laddie, Peter Prescott and Mary Vitoria, The Modern Law of Copyright and Designs (LexisNexis, 4th Ed, 2011) 487.
- 91.
Bently and Sherman (n 26) 90.
- 92.
Laddie, et al. (n 90) 487 give the example of the typesetting of a Bach Cantata where the typesetting would be protected but not the musical work itself.
- 93.
Bently and Sherman (n 26) 90.
- 94.
WPPT (n 17) Article 2(d).
- 95.
WIPO Guide to Rome Convention (n 5) 23.
- 96.
Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information [2003] OJ L345/90.
- 97.
Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information [2013] OJ L175/1 (PSI Directive).
- 98.
PSI Directive, Recital 2.
- 99.
PSI Directive, Article 1(1).
- 100.
Hereafter all references to the PSI Directive will refer to the 2013 Directive (n 97) unless otherwise explicitly stated.
- 101.
PSI Directive, Article 1(1)(iv).
- 102.
PSI Directive, Article 2(1) defines ‘public sector body’ to mean the State, regional or local authorities, bodies governed by public law or associations formed by one or several such bodies governed by public law. See also PSI Directive recital 14.
- 103.
PSI Directive, Article 1(1).
- 104.
PSI Directive, Article 1(2)(a).
- 105.
PSI Directive, Article 2(4).
- 106.
EPSI Platform, ‘Clarifying the Concept of Public-Task’ (2010).
- 107.
Marco Ricolfi, ‘Public Sector Information as Open Data: Access, Re-Use and the Third Innovation Paradigm’ in Dana Beldiman (ed), Access to Information and Knowledge: 21st Century Challenges in Intellectual Property and Knowledge Governance (Edward Elgar 2013) 46–49.
- 108.
ibid 50.
- 109.
PSI Directive, Recital 30.
- 110.
It cannot be ruled out that the ‘licence for digitisation’ is a non-exclusive contract as it is possible that the memory institution decides to allow multiple entities to create digitised versions of a rare document. However, considering the tendency of private-sector investors to push for exclusive licences in relation to the digitisation of rare documents, and the fact that fragility and antiquity of most rare documents mean that, memory institutions are anxious, as much as possible, to limit the number of instances that they are made subject to digitisation, it is anticipated that most licences for digitisation will be exclusive licences.
- 111.
It is noted that in certain instances this licence may be framed as a non-exclusive license (e.g., the LIA programme of the TNA-UK grants to private-sector partners who digitise their documents, non-exclusive licences over the digitised versions). However, as noted before in Chap. 3, it is more usual for private-sector for-profit entities to insist upon exclusive rights for the exploitation of digitised version created by them.
- 112.
PSI Directive, Recital 8.
- 113.
PSI Directive, Article 3(2) (emphasis added).
- 114.
However, yet again this is not impossible. For example, the possibility cannot be ruled out that a memory institution uses an image contained in a painting or drawing as a logo and therefore obtains a trade mark right over it. However, this would be a rare and especial occurrence that is outside the scope of this study.
- 115.
Article 11(1) of the PSI Directive of 2003 (n 96) carried a similar prohibition upon contracts or other arrangements between public sector bodies holding documents and third parties, however Article 11(2) carried a proviso to the effect that such contracts or arrangements may be allowed where an exclusive right is necessary for the provision of a service in the public interest.
- 116.
The specific exception to the prohibition on exclusive arrangements in relation to the digitisation of cultural resources is an innovation introduced by the PSI Directive of 2013.
- 117.
Article 11 (2a) (1) of the PSI Directive provides that where an exclusive right relates to the digitisation of cultural resources, “the period of exclusivity shall in general not exceed ten years” (emphasis added). Furthermore, it states that where the period of exclusivity exceeds ten years, its duration shall be subject to review during the eleventh year and, if applicable, every seven years thereafter.
- 118.
The Re-use of Public Sector Information Regulations n°1415 of 2015 (UK PSI Regulations).
- 119.
UK PSI Regulations, s 14(1).
- 120.
UK PSI Regulations, s 14(6) and s 14(7) state that the period of the exclusive arrangement should not normally exceed 10 years, but allows for the extension of the period of exclusive arrangements subject to periodic review as set out in the PSI Directive under s 14(8).
- 121.
UK PSI Regulations, s 14(13).
- 122.
The European Communities (Re-use of Public Sector Information) (Amendment) Regulations S.I. n° 525 of 2015 (Ireland Re-use of PSI Regulations).
- 123.
European Communities (Re-Use of Public Sector Information) Regulations S.I. n° 279 of 2005.
- 124.
Ireland Re-use of PSI Regulations, Regulation 9 (2A). The provision states the period of exclusivity shall in general not exceed 10 years and be subject to review during the eleventh year and, if applicable, every seven years thereafter.
- 125.
First Act amending the Re-use of Information Act of 8 July 2015 (German Re-use of Information Act). This Act was enacted to amend the Re-Use of Information Act of 13 December 2006 (Informationsweiterverwendungsgesetz) to implement the changes introduced by the PSI Directive of 2013.
- 126.
German Re-use of Information Act, s 3a (3).
- 127.
Code on the Relations between the Public and the Administration, January 2017.
- 128.
The Freedom of Information Act 2000 (c36), the United Kingdom (UK Freedom of Information Act).
- 129.
UK Freedom of Information Act, s 43(1).
- 130.
UK Freedom of Information Act, s 43(2).
- 131.
Freedom of Information Act 2000 (FOIA) (UK) Decision notice, 14th September, 2011. Ref. FS50361862.
- 132.
ibid para 33.
- 133.
UK PSI Regulations, s 14(9).
- 134.
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Mendis, S. (2019). Why Are Related Rights the Best Mechanism?. In: A Copyright Gambit. Munich Studies on Innovation and Competition, vol 11. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-59454-4_8
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