Abstract
The proposed model set out in this chapter aims to describe the key features of a legal regime for the regulation of digitised versions of rare documents within the EU. In doing so, it attempts to answer the final limb of our third research question by presenting a regulatory framework that is able to achieve an adequate balance between the interests of users and producers of digitised versions of rare documents.
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Notes
- 1.
- 2.
- 3.
Consolidated version of the treaty on the functioning of the European Union (TFEU) [2012] OJ C326/47. Article 118 of the TFEU provides for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination, and supervision arrangements.
- 4.
Proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market, 14 September 2016, COM(2016) 593.
- 5.
The definition of a digitised version as a prototype image is inspired by the German law protection framework for Lichtbilder under Article 72 of the German Copyright Act. See also BGH, 08.11.1989 – I ZR 14/88, GRUR 1990, 669 – Bibelreproduktion.
- 6.
- 7.
Sunimal Mendis, ‘Rare Documents’ in Marie Cornu, Fabienne Orsi and Judith Rochfeld (eds), Dictionnaire des Bien Communs (PUF 2017).
- 8.
Article 3(1) 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).
- 9.
Directive 2009/24/EC of The European Parliament and of the Council of 23 April 2009 on the legal protection of computer programmes [2009] OJ L 111/16 (Computer Programmes Directive).
- 10.
Database Directive, Article 5(1).
- 11.
Computer Programmes Directive, Articles 5(2) and 6(1)(a) use the term, ‘person having right to use computer programme’.
- 12.
Tatiana-Elena Synodinou, ‘The Lawful User and a Balancing of Interests in European Copyright Law’ [2010] 41 IIC 819, 824.
- 13.
ibid 831.
- 14.
ibid 831–34.
- 15.
‘Report from the Commission to the Council, the European Parliament and the Economic and Social Committee on the Implementation and Effects of Directive 91/250/EEC on the Legal Protection of Computer Programmes’, 10 April 2000, COM (2000) 199 final.
- 16.
ibid 12.
- 17.
In Synodinou’s opinion interpreting the concept of a lawful user, considering elements of natural justice, such as good faith, attributes a dynamic character to the concept and could also function as criteria to judge whether a particular use is really lawful and remains lawful. Synodinou (n 12) 837. See also obligations of lawful users set out in Article 20 of the proposed model.
- 18.
Synodinou (n 12) 835–36.
- 19.
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).
- 20.
Perfect 10 Inc v Google Inc [2007] 508 F3d 1146 (9th Circuit) 1155.
- 21.
Council Directive 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks [2015] OJ L336/1, Article 1 and Chapter 3.
- 22.
Regulation (EU) 1257/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection [2012] OJ L361/1, Article 3.
- 23.
Council Regulation (EC) 6/2002 of 12 December 2001 on Community designs [2002] OJ L3/1, Article 12. The Regulation also provides protection to unregistered designs under Article 11.
- 24.
Berne Convention for the Protection of Literary and Artistic Works S. Treaty Doc. No. 99-27 (1986) 1161 UNTS 3.
- 25.
Berne Convention, Article 5(1) read with Article 5(2).
- 26.
As van Gompel observes, the prohibition on formalities imposed by Article 5(2) would not even extend to the ‘Berne-plus’ provisions of the TRIPS Agreement. Stef Van Gompel, Formalities in Copyright Law: An Analysis of Their History, Rationales and Possible Future (Kluwer Law International 2011) 165.
- 27.
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 (Rome Convention).
- 28.
Interoperability refers to the ability to access, use, and distribute a particular digitised version within a range of different electronic devices. The adoption of common technical standards that lead to the use of commons formats and software tools in the production of digitised versions could improve their interoperability.
- 29.
For further discussion on the importance of standardisation for interoperability and digital preservation, see the discussion in Sect. 9.4.2 below.
- 30.
- 31.
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).
- 32.
PSI Directive, Article 11(2)(a)(1).
- 33.
Elisabeth Niggemann, Jacques De Decker and Maurice Lévy, The New Renaissance: Report of the Comité des Sages on Bringing Europe’s Cultural Heritage Online (European Commission 2011) 48. <https://ec.europa.eu/digital-single-market/sites/digital-agenda/files/final_report_cds_0.pdf> accessed 31 January 2019. The recommendation of the Comité des Sages has been incorporated in Annex I para 2 of the European Commission Recommendation of 27 October 2011 on the digitisation and online accessibility of cultural material and digital preservation [2011] OJ L283/39.
- 34.
Opinion expressed by Dr. Elisabeth Niggemann, Director of the German National Library and member of the Comité des Sages during an interview carried out with the author (via email) on 13 January 2014. (Interview transcript in possession of the author).
- 35.
The Europeana Foundation is a private, non-profit entity incorporated in the Netherlands as a Stichting (foundation), and housed within the Koninklijke Bibliothek in The Hague. Europeana is mainly funded by grants from the European Commission, thereby making it a rare example of an informational commons that is financially supported by the European Union. See also Sunimal Mendis, ‘Europeana’ in Marie Cornu, Fabienne Orsi and Judith Rochfeld (eds), Dictionnaire des Biens communs (PUF 2017).
- 36.
It is noted that a detailed discussion on the grounds for revocation or invalidation of the related right, the procedure to be followed in an action for revocation or invalidation, and the consequences of the revocation or invalidation, is not within the scope of this study.
- 37.
- 38.
A ‘grace-period’ is defined as, “Additional time scheduled or allocated to complete a task, such as complying with a regulation, meeting an obligation, or obtaining an agreement”. (The Law Dictionary 2018) <https://thelawdictionary.org/grace-period/> accessed 31 January 2019.
- 39.
Judgment of 3 July 2012, UsedSoft, C-128/11, EU:C:2012:407.
- 40.
The determination as to what constitues a ‘reasonable return’ is beyond the scope of this study. It is proposed that this should be determined in consultation with private sector for-profit entities that are active in the licensing market within the EU.
- 41.
See discussion relating to the meaning of direct and indirect reproduction in Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society COM (97) 628 final, Brussels, 10 December 1997, 24 (discussion on ‘Article 2: Reproduction Right’, paragraph 3), available at, <ec.europa.eu/transparency/regdoc/rep/1/2002/EN/1-2002-414-EN-F1-1.Pdf> accessed 31 January 2019.
- 42.
Judgment of 17 April 2008, Peek & Cloppenburg, C-456/06, EU:C:2008:232.
- 43.
ibid para 33–36.
- 44.
Judgment of 3 July 2012, UsedSoft, C-128/11, EU:C:2012:407.
- 45.
Emanuela Arezzo, ‘Hyperlinks and Making Available Right in the European Union-What Future for the Internet After Svensson’ [2014] 45 IIC 524, 532–33, citing Judgment of 2 June 2005, Mediakabel, C-89/04, EU:C:2005:348, para 30 and Judgment of 14 July 2005, Lagardère Active Broadcast, C-192/04, EU:C:2005:475, para 31.
- 46.
Arezzo (n 45) 533.
- 47.
ibid.
- 48.
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).
- 49.
Judgment of 10 November 2016, Vereniging Openbare Bibliotheken, C-174/15, EU:C:2016:856.
- 50.
ibid para 44.
- 51.
Judgment of 17 April 2008, Peek & Cloppenburg, C-456/06, EU:C:2008:232.
- 52.
Thomas Heide, ‘Copyright in the EU and US: What “Access-Right”?’ (2001) 48 Journal of the Copyright Society of the USA 363, 375.
- 53.
Judgment of 13 February 2014, Svensson, C-466/12, EU:C:2014:76.
- 54.
Ginsburg defines an access right as a right to control the manner in which members of the public apprehend a work. Thus, the access right is distinguished from the right to reproduction or communication to the public to the extent that, although a work may be communicated or distributed to a user, the user may not ‘open’ (i.e., access) the work unless he acquires the ‘key’ to the work that is required by the technological protection measures. Jane C Ginsburg, ‘Essay: From Having Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law’ (2003) 50 Journal of the Copyright Society of the USA 113, 120.
- 55.
Thus, the definition of the contours of the right to control access under Article 14 diverges from the definition of the access-right provided by Efroni under which a person comes under Hohfeldian duties of abstention unless a rightholder’s authorisation to access is granted. Zohar Efroni, Access-Right: The Future of Digital Copyright Law (Oxford University Press 2011) 144–47.
- 56.
Judgment of 23 January 2014, Nintendo and Others, C-355/12, EU:C:2014:25.
- 57.
ibid para 31.
- 58.
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’ (IViR 2007) 75 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2006358> accessed 31 January 2019.
- 59.
ibid.
- 60.
See discussion on Article 5(1) of EU Commission proposal for InfoSoc Directive, 10th December 1997 (n 41), 29 (discussion on ‘Article 5’, paragraph 3).
- 61.
Judgment of 10 April 2014, ACI Adam and Others, C-435/12, EU:C:2014:254.
- 62.
Article 3(1) of the Proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market, 14 September 2016, COM(2016) 593.
- 63.
ibid Article 4(1).
- 64.
- 65.
- 66.
See decisions delivered by the CJEU in the cases of Judgment of 16 July 2009, Infopaq International, C-5/08, EU:C:2009:465; Judgment of 4 October 2011, Football Association Premier League and Others, C-403/08 and C-429/08, EU:C:2011:631 and Judgment of 1 March 2012, Football Dataco v Yahoo! UK Ltd, C-604/10, EU:C:2012:115.
- 67.
Interlego v Tyco [1989] AC 217.
- 68.
ibid 266.
- 69.
Bridgeman Art Library Ltd., v Corel Corporation [1998] 25 F Supp 2d 421 (SDNY) [hereinafter referred to as ‘First hearing – Bridgeman I’].
- 70.
ibid para 6.
- 71.
It is noted that the requirement of a ‘distinguishable variation’ can be compared to the concept of ‘transformative use’ in the ‘fair-use’ doctrine of US Copyright law [Copyright Act of 1976 (USA) 17 United States Code s. 107], which is granted a high degree of weight in the ‘fair-use’ analysis. As noted in the case of Campbell v Acuff-Rose, the more transformative a new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of ‘fair-use’. Campbell, et al. v Acuff-Rose Music Inc [1994] 510 US 569, 579. However, it is noted that the concept of ‘transformative use’ does not require a distinguishable variation to the underlying work but that, as noted in the Perfect 10 case, the new work, ‘adds something new with a further purpose or different character, altering the first with new expression, meaning or message’. Perfect 10 Inc v Google Inc [2007] 508 F3d 1146 (9th Circuit) 1155, 1164. In this sense, the standard introduced in Article 17(3)(b) is much stricter than the concept of ‘transformative use’ in US law.
- 72.
For example, in its decision in the case of Google Inc v Copiepresse SCRL, et al., Cour d’appel de Bruxelles, Ch 9, 5 mai 2011. the Court of Appeal of Belgium held that, Google Inc.’s online free service ‘Google News’ which produced snippet views of newspaper articles infringed the copyright over the articles. See also Phillipe Laurent, ‘Copiepresse SCRL and All v Google Inc’ (2011) 27 Computer Law and Security Review 542.
- 73.
Judgment of 13 February 2014, Svensson, C-466/12, EU:C:2014:76.
- 74.
Leistner correctly points out that to give the user an idea of the image’s relevance for the search, it is necessary that he is able to see the image in its entirety. It is argued here that, merely allowing search engines to present snippets of a digitised version or transcribed extracts of the public domain content recorded upon them may not be sufficient for allowing users to appreciate the relevance of an image. Matthias Leistner, ‘The German Federal Supreme Court’s Judgement on Google’s Image Search – a Topical Example of the “Limitations” of the European Approach to Exceptions and Limitations’ (2011) 42 IIC 417, 419.
- 75.
ibid 421.
- 76.
ibid.
- 77.
Kelly v Arriba Soft Corporation [2003] 336 F3d 811.
- 78.
Perfect 10 Inc v Google Inc [2007] 508 F3d 1146 (9th Circuit) 1155.
- 79.
In the Perfect10 case, it was argued that the thumbnail images created by Google Inc. could serve as substitutes in the market for reduced-size versions of Perfect 10’s photographs. However, the Court of Appeal rejected this argument because there was no evidence that Google’s thumbnail images were in fact being used as a substitute for the reduced-size versions. ibid 11.
- 80.
BGH, 29.04.2010 – I ZR 69/08, GRUR 2010, 628 – Vorschaubilder.
- 81.
Judgment of 3 September 2014, Deckmyn, C-201/13, EU:C:2014:2132.
- 82.
ibid para 19.
- 83.
ibid para 20.
- 84.
ibid para 21.
- 85.
- 86.
Synodinou (n 12) 840.
- 87.
Christophe Geiger, Jonathan Griffiths and Reto M Hilty, ‘Declaration on a Balanced Interpretation of the “Three-Step Test” in Copyright Law’ [2008] 39 IIC 707.
- 88.
ibid 711.
- 89.
- 90.
Directive 2009/24/EC of The European Parliament and of the Council of 23 April 2009 on the legal protection of computer programmes [2009] OJ L 111/16 (Computer Programmes Directive).
- 91.
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).
- 92.
In the Hohfeldian scheme of jural relations, a privilege, is defined as the correlative of a no-right i.e., if A has a privilege to make a specific use of a digitised version, then the rightholder or any other person will not have a right to prevent A from engaging in that specific use. A right is defined as a correlative of duty i.e., if A has a right to make a specific use of a digitised version, then the rightholder or any other person will have a duty to not to interfere with that right. Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 The Yale Law Journal 16, 28–33. See also Arthur Corbin, ‘Jural Relations and Their Classification’ (1921) Yale Law School Faculty Scholarship Series: Paper 2873 <http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3877&context=fss_papers> accessed 31 January 2019.
- 93.
Although Synodinou (n 12) 822–23, appears to interpret Article 9 of the Database Directive and Article 5 of the Computer Programmes Directive as granting ‘rights’ to lawful users in respect of certain specified exceptions and limitations established by those Directives, it is noted that these Directives do not frame the entitlement provided to a lawful user to benefit from the specified exceptions and limitations as a ‘positive right’. Furthermore, the enforceability of these provisions by a user against any person who impedes such benefit is unclear.
- 94.
- 95.
- 96.
Refers to the ‘Information Fair Trader Scheme’ (IFTS) that set and assessed standards for public sector bodies. Since 2017, the IFTS has been superseded by statutory arrangements put in place by the Re-use of Public Sector Information Regulations n°1415 of 2015 (UK PSI Regulations). For more information see The National Archives, ‘Closure of the Information Fair Trader Scheme announced’ <http://www.nationalarchives.gov.uk/about/news/closure-of-the-information-fair-trader-scheme-announced/> accessed 31 January 2019.
- 97.
This is based on a description of the tender procedure employed by the LIA programme provided by an Official of The National Archives, UK during an interview held with the author on 3 April, 2013. Participation in the interview was on grounds of anonymity (interview transcript in possession of author).
- 98.
MINERVA, ‘MINERVA EC – Technical Guidelines’ <http://www.minervaeurope.org/technicalguidelines.htm> accessed 31 January 2019.
- 99.
Kate Fernie, Giuliana De Francesco and David Dawson, ‘MINERVA Technical Guidelines for Digital Content Creation Programmemes: Version 2.0’ (2008) <http://www.minervaeurope.org/publications/MINERVA%20TG%202.0.pdf> accessed 31 January 2019.
- 100.
For more information on proposals made for the adoption of common technical standards within the framework of the SUCCEED project see Sylvia Garcia, ‘Succeed Interoperability Workshop Report’ <https://www.digitisation.eu/succeed-interoperabily-workshop-report/> accessed 31 January 2019.
- 101.
For brevity and simplicity, we consider only the perspective of access and not of use.
- 102.
For example, if X is a rare document that is kept in the dark archives of a memory institution, it is possible to assume that under a digitisation model that relies on public and not-for-profit sources of funding, a digitised version of X would be produced and distributed to the public at some point in the future. However, it is argued that the increase in private sector (for-profit) investment in the digitisation process under the proposed regulatory framework would result in a digitised version of X being produced and distributed to the public at an earlier time than could be achieved with public and other not-for-profit sources of funding.
- 103.
This is despite the fact that the expected value of accessing the public domain content recorded upon the rare document in its original analogue form and in digital form can vary according to the subjective preferences of the user, as well as the purpose of the intended use. However, it is not possible to capture these preferences within the basic economic argument presented here.
- 104.
(n 31).
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Mendis, S. (2019). The Proposed Model. 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_9
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