Abstract
This chapter examines certain legal (copyright claims, contractual provisions, and DRM systems) and non-legal (trade mark law, database rights, and equitable remuneration schemes) mechanisms that are either currently being used or have the potential to be used in preserving exclusivity over digitised versions. It proceeds to analyse these mechanisms in order to determine their adequacy and suitability in achieving an equilibrium between user and producer interests.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Suitability refers to the appropriateness of a particular mechanism for protecting digitised versions e.g., the nature and scope of the protection offered, the efficiency of its enforcement within the digital environment, etc.
- 2.
Adequacy refers to the ability of the mechanism to achieve an adequate balance between the competing interests of users and producers of digitised versions by providing sufficient incentives to producers to invest in the digitisation of rare documents, while at the same time enabling users to use and exploit the digitised versions as much as possible (see Sect. 2.4 above).
- 3.
Article 2 of the 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).
- 4.
ibid Article 3.
- 5.
ibid Article 4.
- 6.
See discussion in Sect. 4.5.
- 7.
See Sect. 6.1.3 below.
- 8.
See Sect. 5.3.
- 9.
These exceptions and limitations are provided in Article 5 of the InfoSoc Directive.
- 10.
See Sect. 5.4.6 for discussion on preventing contractual provisions and DRM from being used to bypass exceptions and limitations to copyright.
- 11.
Article 6(4) is triggered in the absence of voluntary measures (including agreements) between rightholders and the parties concerned that enable those parties to benefit from exceptions and limitations set out in Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) and (3)(e), to the “extent necessary to benefit from that exception or limitation”. The meaning of this term ‘extent necessary to benefit’ is not defined by the Directive. Thus, Article 6(4) allows discretion to rightholders in determining the freedom of use that should be accorded to users to benefit from the specified exceptions and limitations. For a more detailed discussion on the shortcomings of Article 6(4) see Christophe Geiger and others, ‘The Information Society Directive’ in Irini Stamatoudi and Paul Torremans (eds), EU Copyright Law: A Commentary (Edward Elgar 2014) 467–470. See also Martin Kretschmer and others, ‘The Relationship between Copyright and Contract Law’ (Strategic Advisory Board for Intellectual Property and Policy (SABIP) 2010), 138–140 <http://eprints.bournemouth.ac.uk/16091/1/_contractlaw-report.pdf> accessed 31 January 2019.
- 12.
This is contrasted with Article 8 paragraph 2 of the 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), and Article 15 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), that explicitly prevent contractual provisions from being used to override certain specific exceptions and limitations to the exclusive rights granted by those Directives.
- 13.
Opinion expressed by André Welters of the University and State Library of Cologne, Germany (Universitäts und Stadtbibliothek Köln) during an interview held with the author on 18 February 2014 (interview transcript in possession of the author).
- 14.
For a more comprehensive discussion on the adequacy and suitability of DRM protection see Sect. 6.1.3 below.
- 15.
Article 1 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).
- 16.
Comité des Sages (Chap. 1, n 13) Annex I para 2.
- 17.
See discussion in Sect. 8.2.1.
- 18.
It is noted that the discussion or formulation of a strict regulatory framework that could model contract law into a suitable and adequate mechanism for the protection of digitised versions is beyond the scope of this thesis.
- 19.
Stefan Bechtold, ‘Digital Rights Management in the United States and Europe’ (2004) 52 The American Journal of Comparative Law 323, 325.
- 20.
- 21.
See discussion on the scope of Article 6(4) of the InfoSoc Directive in Sect. 6.1.1 above (n 11).
- 22.
This is notwithstanding the fact that the contractual restrictions imposed upon users by the DRM system would continue to be valid and could also be applied to produce third party effects.
- 23.
Database Directive (n 12).
- 24.
ibid Article 3(1).
- 25.
ibid Article 7(1).
- 26.
For example, ProQuest’s database entitled ‘Early English Books Online’ presents a collection of digitised versions of early printed works in English <www.proquest.com/products-services/databases/eebo.html> accessed 31 January 2019; The Digital Vatican Library gives online access to its database of digitised versions of manuscripts digitised through the Polonsky Project <http://digi.vatlib.it/mss/> accessed 31 January 2019; the British Library makes available its British Newspaper Archive that includes digitised versions of newspapers printed in Britain dating back to the sixteenth century <www.britishnewspaperarchive.co.uk> 31 January 2019.
- 27.
Article 7(1) of the Database Directive.
- 28.
Case C-203/02 British Horseracing Board [2004] ECR I-10415.
- 29.
ibid paras 32 and 33.
- 30.
Article 7(1) of the Database Directive (n 12).
- 31.
David Brennan, ‘What Is Equitable Remuneration for Intellectual Property Use?’ Paper Prepared for a Seminar at Oxford Intellectual Property Research Centre (25 January 2005) 4.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer-Verlag GmbH Germany, part of Springer Nature
About this chapter
Cite this chapter
Mendis, S. (2019). Adequacy and Suitability of Existing Protection Mechanisms. 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_6
Download citation
DOI: https://doi.org/10.1007/978-3-662-59454-4_6
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-662-59453-7
Online ISBN: 978-3-662-59454-4
eBook Packages: Law and CriminologyLaw and Criminology (R0)