The EU legal system for copyright and for the protection of databases

The EU legal system for copyright and for the protection of databases
ERA summer course on European IP law RA Prof. Dr. Martin Senftleben Trier, 2 July 2013

Table of contents sources of law copyright protection EU Directives
international treaties copyright protection rationale of protection originality test

Table of contents copyright protection term of protection
exclusive rights exceptions and limitations protection of technological measures enforcement

Table of contents sui generis database protection
rationale of protection substantial investment exclusive rights exceptions and limitations

Sources of law

EU Directives cornerstone: Copyright Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society seeks to implement WIPO Copyright Treaty covers reproduction, communication to the public and distribution right exceptions and limitations protection of technological protection measures

More specific Directives
1991: computer programs = Directive 2009/24/EC 1992: rental and lending right, neighbouring rights = Directive 2006/115/EC 1993: satellite broadcasting and cable retransmission Directive 93/83/EEC 1993: term of protection = Directive 2006/116/EC 1996: protection of databases Directive 96/9/EC

More specific Directives
2001: resale right for original works of art Directive 2001/84/EC 2012: orphan works Directive 2012/28/EU use privilege for libraries, educational establishments, museums, archives, film heritage institutions, public broadcasting requirement of diligent search unauthorised making available on the Internet and reproduction for digitization and preservation purposes equitable remuneration of authors

Relevant international treaties
The Berne Convention for the Protection of Literary and Artistic Works (BC 1886/1967) The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS 1994) The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WIPO ‘Internet’ Treaties 1996)

Copyright

Literary and artistic works
books, writings, plays musical compositions choreography drawings, paintings sculptures, architecture cinematographic works photography

Pablo Picasso, Guernica (1937)
Literary and artistic works Pablo Picasso, Guernica (1937)

Art. 2(1) Berne Convention
The expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression,…

Charles and Ray Eames, Eames Lounge and Ottoman (1956)
Literary and artistic works Charles and Ray Eames, Eames Lounge and Ottoman (1956)

Art. 1(1) Computer Programs Directive
In accordance with the provisions of this Directive, Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. For the purposes of this Directive, the term ‘computer programs’ shall include their preparatory design material.

Rationale underlying copyright protection

Different legal traditions in the EU
natural law argument (civil law) feelings of rightness and justice reward for creative labour civil law tradition utilitarian incentive rationale (common law) stimulation of investment contribution to the overall welfare of society common law tradition

Utilitarian approach ‘A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure,…’

Utilitarian approach ‘…and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. This will safeguard employment and encourage new job creation.’ (Recital 4, Copyright Directive 2001/29/EC)

Originality test

Originality work = materialization of the author’s individual personality particular link between the author and the work copyright is automatically acquired through the very act of creation no formalities = no registration requirement

CJEU, 16 July 2009, case C-5/08, Infopaq/Danske Dagblades Forening
Infopaq International active in the field of mediamonitoring and -analysis offers summaries of press articles uses specific procedure for capturing data: manual registration, scanning, conversion to digital format, indexing according to search terms procedure results in text fragments of 11 words Danske Dagblades Forening association of Danish daily newspaper publishers

introduction of an EU originality test ‘In those circumstances, copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation.’ (para. 37) derived by the Court from different sources international: Art. 2(5) and (8) Berne Convention EU: Art. 1(3) Computer Programs Directive, Art. 3(1) Database Directive , Art. 6 Copyright Term Directive

requirement of free and creative choices ‘Regarding the elements of such works covered by the protection, it should be observed that they consist of words which, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation.’ (para. 45)

CJEU, 1 December 2011, case C-145/10, Painer/Der Standard

free and creative choices can follow from various circumstances of the production process ‘In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software.’ (para. 91)

CJEU, 22 December 2010, case C-393/09, Softwarová
graphic user interface of a computer program may be eligible for general copyright protection (para. 46) but: no protection if the components of the interface are dictated by their technical function ‘…where the expression of those components is dictated by their technical function, the criterion of originality is not met, since the different methods of implementing an idea are so limited that the idea and the expression become indissociable.’ (para. 49)

Term of protection

Term Directive 2006/116/EC ‘...shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public.’ (Art. 1(1) Term Directive)

Term Directive 2006/116/EC joint authorship (Art. 1(2))
death of the last surviving author decisive anonymous or pseudonymous works (Art. 1(3)) making available to the public + 70 years legal person designated as rightholder (Art. 1(4))

Exclusive rights

Two branches exploitation rights moral rights right of reproduction
right of communication to the public distribution right harmonized in Arts. 2 to 4 Copyright Directive 2001/29 moral rights claim authorship object to any distortion, mutilation, modification or other derogatory action not harmonized in EU law, but in Art. 6bis of the Berne Convention

Rightholders of exploitation rights
authors (works) performers (fixations of performances) phonogram producers (phonograms) producers of the first fixations of films (original and copies of films) broadcasting organisations (fixations of broadcasts)

Copyright clusters adaptation 1: translator + neighbouring rights
adaptation 2: scenarist copyright: author of a book

Copyright clusters neighbouring right: singer copyright: text writer
neighbouring right: phonongram producer copyright: music composer

Reproduction right ‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part.’ (Art. 2 Copyright Directive 2001/29/EC)

Right of communication to the public
‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’ (Art. 3 Copyright Directive 2001/29/EC)

Communication to the public
standard situation: flexible place, fixed time (broadcasting) EU right covers also: flexible place, flexible time (Internet) but not covered (not harmonized): fixed place, fixed time (public performance)

CJEU, 4 October 2011, cases C-403/08 and C-429/08, FA Premier League
criterion of ‘direct physical contact’ ‘Thus, in order to exclude such direct public representation and performance from the scope of the concept of communication to the public in the context of the Copyright Directive, recital 23 in its preamble explained that communication to the public covers all communication to the public not present at the place where the communication originates.’ (para. 201) not harmonized: opera, theatre etc. (direct contact) harmonized: loudspeakers in bars etc. (no direct contact)

CJEU, 7 December 2006, case C-306/05, SGAE/Rafael Hoteles
Sociedad General de Autores y Editores de España (SGAE) responsible for the collective management of copyright in Spain seeks compensation for the use of television sets and the playing of ambient music within hotels Rafael Hoteles uses cable to send previously received satellite or terrestrial television signals to television sets in hotel rooms

‘public’ = indeterminate number of potential viewers occupants of hotel rooms not to be taken separately ‘…a general approach is required, making it necessary to take into account not only customers in hotel rooms […] but also customers who are present in any other area of the hotel and able to make use of a television set installed there. It is also necessary to take into account the fact that, usually, hotel costumers quickly succeed each other. As a general rule, a fairly large number of persons are involved, so that they may be considered to be a public...’ (para. 38)

hotel = other organisation intervening to give access to the protected work to its customers ‘…a communication made in circumstances such as those in the main proceedings constitutes […] a communication made by a broadcasting organisation other than the original one. Thus, such a transmission is made to a public different from the public at which the original act of communication of the work is directed, that is, to a new public.’ (para. 40) communication to the public (+)

CJEU, 15 March 2012, case 135/10, SCF/Marco del Corso
Società Consortile Fonografici (SCF) acts as a collecting agency and manages, collects and distributes the royalties of its associated phonogram producers seeks to collect royalties from dentists for the playing of music in waiting rooms Marco del Corso dentist with private practice in Turin plays radio music in his waiting room and does not want to pay

CJEU, 15 March 2012, case 135/10, SCF/Marco del Corso
‘public’ = indeterminate number of potential viewers here: patients in succession but: number of patients listening to the same phonogram at one particular point in time too small ‘…as regards, the criterion of ‘a fairly large number of people’, this is intended to indicate that the concept of public encompasses a certain de minimis threshold, which excludes from the concept groups of persons which are too small, or insignificant.’ (para. 86) and: no impact on dentist’s income (patients unlikely to come for the phonograms)

Distribution right ‘Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.’ (Art. 4 Copyright Directive 2001/29/EC)

Exhaustion ‘The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent.’ (Art. 4 Copyright Directive 2001/29/EC)

No internal market partitioning
Netherlands: 100 EUR Greece: EUR copyright as a weapon against parallel imports? (+) in case of national exhaustion (-) in case of international exhaustion solution in the EU: community-wide exhaustion

Exceptions and limitations

Art. 5 Copyright Directive 2001/29
mandatory exception: exemption of temporary acts of reproduction optional exceptions: private copying use of copyrighted material by libraries, museums and archives ephemeral recordings reproductions of broadcasts made by hospitals and prisons illustrations for teaching or scientific research use for the benefit of people with a disability

optional exceptions: press privileges use for the purpose of quotations use for caricature, parody and pastiche use for the purposes of public security use for the proper performance or reporting of administrative, parliamentary or judicial proceedings use of political speeches and public lectures use during religious or official celebrations

optional exceptions: use of architectural works located permanently in public places incidental inclusions of a work in other material use for the purpose of advertising the public exhibition or sale of artistic works use in connection with the demonstration or repair of equipment use for the reconstruction of buildings additional national cases of use having minor importance

Core rationales freedom of expression and information
cultural participation: equal chances in the information society (no ‘digital divide’) dissemination of information educational institutions, libraries, archives regulation of industry practice (primary and secondary markets, reconciliation of business models)

Harmonization? ‘Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:… quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;…’ (Art. 5(3)(d) Copyright Directive 2001/29/EC)

Permissible quotation?

Three-step test ‘The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’ (Art. 5(5) Copyright Directive 2001/29/EC)

Meaning of the test certain special case
specific form of use, limited number of beneficiaries room for considering policy justification? no conflict with a normal exploitation currently exploited and potential future markets room for normative considerations? no unreasonable prejudice to legitimate interests refined proportionality test unreasonable prejudice can be reduced to reasonable level by providing for the payment of equitable remuneration

Overview of EU regulation of exceptions
exhaustive enumeration of exceptions three-step test broad exclusive rights

exemption of temporary copying under Art. 5(1) Copyright Directive invoked as a defence by Infopaq standard for interpretation: ‘…the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly.’ (para. 56) general principle here: right of reproduction derogation: exemption of temporary copying

impact of the three-step test: ‘This is all the more so given that the exemption must be interpreted in the light of Article 5(5) of Directive 2001/29, under which that exemption is to be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’ (para. 58) always restrictive reading required?

CJEU, 4 October 2011, cases C-403/08 and C-429/08, FA Premier League
not necessarily, fair balance to be safeguarded ‘In accordance with its objective, [the exemption of temporary copying under Article 5(1) of Directive 2001/29] must allow and ensure the development and operation of new technologies and safeguard a fair balance between the rights and interests of right holders, on the one hand, and of users of protected works who wish to avail themselves of those new technologies, on the other.’ (para. 164)

particularly a fair balance with regard to competing fundamental rights ‘Article 5(3)(d) of Directive 2001/29 [= right of quotation] is intended to strike a fair balance between the right to freedom of expression of users of a work or other protected subject-matter and the reproduction right conferred on authors.’ (para. 134)

Fair compensation

CJEU, 21 October 2010, case C-467/08, Padawan/SGAE
‘Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:… in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;…’ (Art. 5(2)(b) Copyright Directive 2001/29/EC)

Prejudicial question 4: ‘If a Member State adopts a private copying ‘levy’ system, is the indiscriminate application of that ‘levy’ to undertakings and professional persons who clearly purchase digital reproduction devices and media for purposes other than private copying compatible with the concept of ‘fair compensation’?’ (para. 19)

Fair compensation is an autonomous concept of EU law which must be interpreted uniformely in all Member States. (para. 37) Notion and level of fair compensation are linked to the harm resulting from the private copying. (para. 40) = If exception does not cover downloading from illegal sources, then no compensation is due for this. private copying levy is not intended to provide general compensation for losses in the digital environment. In principle, it is for the user to make good the harm related to the private copying by financing the compensation. (para. 45)

However, given the practical difficulties in identifying and charging private users, a levy system can be introduced at the national level. (para. 46) The industry can pass on the amount of the levy to private users so that the burden will ultimately be borne by them. (para. 49) But: distinction between private/professional to be drawn ‘…the indiscriminate application of the private copying levy, in particular with respect to digital reproduction equipment, devices and media not made available to private users and clearly reserved for uses other than private copying, is incompatible with Directive 2001/29.’ (para. 59)

what levy scheme for online use?
CJEU, 21 October 2010, case C-467/08, Padawan/SGAE what levy scheme for online use?

Protection of technological measures

Background and rationale
concerns of the media industry (particularly music and film) weapon against digital ‘piracy’ (particularly filesharing platforms) stimulation of e-commerce individual payment (pay-per-use) hope that new business models will emerge (‘celestial jukebox’)

Technological measures
‘…means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.’ Art. 6 Copyright Directive 2001/29/EC: protected against circumvention

Rights management information
‘…means any information provided by rightholders which identifies the work or other subject-matter referred to in this Directive or covered by the sui generis right provided for in Chapter III of Directive 96/9/EC, the author or any other rightholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information…’ Art. 7 Copyright Directive 2001/29/EC: protected against removal and altering

= Underlying international concept (WIPO Copyright Treaty)
scope of copyright/related rights scope of protection against circumvention

prohibition limited to illicit circumvention
Feasible in practice? prohibition limited to illicit circumvention prohibition extended to preparatory acts

Art. 6(2) Copyright Directive
‘…protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, […] or the provision of services which: (a) are promoted, advertised or marketed for the purpose of circumvention of, or (b) have only a limited commercially significant purpose or use other than to circumvent, or (c) are primarily designed […] for the purpose of enabling or facilitating the circumvention of, any effective technological measures.’

Enforcement

How to fight illegal filesharing?

Measures against the platform itself?

Measures against online intermediaries instead?

Art. 8(3) Copyright Directive
‘Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.’

Scarlet Sabam CJEU, 24 November 2011, case C-70/10, Scarlet/Sabam
internet access provider customers involved in illegal downloads from P2P-platforms Sabam seeks to impose filtering obligation on Scarlet namely making it impossible to send or receive files containing musical works (deep packet inspection) Page 92

No obligation of deep packet inspection
CJEU, 24 November 2011, case C-70/10, Scarlet/Sabam No obligation of deep packet inspection injunction against intermediaries possible on the basis of Art. 8(3) Copyright Directive (para. 31) but: ‘fair balance’ required between IP rights and freedom to conduct a business laid down in Art. 16 of the Charter (para. 46) obligation of filtering system irreconcilable with this requirement (para. 49) = general monitoring obligation incompatible with Art. 15(1) E-Commerce Directive (para. 40) Page 93

No obligation of deep packet inspection
CJEU, 24 November 2011, case C-70/10, Scarlet/Sabam No obligation of deep packet inspection potential infringement of protection of personal data and right to receive information of ISP customers (para. 50) also potential encroachment upon freedom of information because of inadequate distinction between lawful and unlawful content: copyright exceptions may be disregarded (para. 52) required ‘fair balance’ not ensured (para. 53) Page 94

filtering: deep packet inspection goes too far
CJEU, 24 November 2011, case C-70/10, Scarlet/Sabam filtering: deep packet inspection goes too far blocking: blocking of entire platform an alternative?

Databases

Database ‘For the purposes of this Directive, ‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.’ (Art. 1(1) Database Directive 96/9/EC)

Protection instruments
copyright protection original databases copyrighted material in the database sui generis database protection in case of substantial investment protection against unfair competition

Rationale underlying sui generis protection

Stimulating investment
‘Whereas there is at present a very great imbalance in the level of investment in the database sector both as between the Member States and between the Community and the world’s largest database-producing third countries;…’ (Recital 11, Database Directive 96/6/EC)

Art. 7(1) Database Directive
‘Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents…’

Term of protection ‘...fifteen years from the first of January of the year following the date of completion.’ (Art. 10(1)) if made available to the public prior to the expiry of the term following from the completion date (Art. 10(2)) 15 years calculated on the basis of the date of making available constant investment makes evergreening possible (Art. 10(3)) new term of protection results from substantial new investment in the contents of the database

Substantial investment

CJEU, 9 November 2004, case C-203/02, BHB/William Hill
British Horseracing Board manages the UK horseracing industry compiles and maintains an online database with diverse information (races, horses, jockeys, owners etc.) William Hill provides off-course bookmaking services is a subscriber to the BHB-database uses BHB-data for his business

CJEU, 9 November 2004, case C-203/02, BHB/William Hill
only relevant: investment in the database as such ‘...resources used to seek out existing independent materials and collect them in the database…’ (para. 31) irrelevant: investment in contents creation ‘The purpose of the protection by the sui generis right […] is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.’ (para. 31)

Substantial investment
irrelevant ‘creation of materials’ comprises selection of the horses admitted to run establishing lists of these horses verification of information in that context = no relevant investment in ‘obtaining’ or ‘verification’ of data in the sense of the sui generis protection system (para )

CJEU recognizing spin-off theory?

Exclusive rights

Infringement extraction (reproduction) or re-utilisation (making available) of a qualitatively or quantitatively substantial part Art. 7(1) and (2) DBD extraction or re-utilisation: insubstantial parts repeated and systematic normal exploitation/ unreasonable prejudice Art. 7(5) DBD

CJEU, 9 October 2008, case C-304/07, Directmedia/Universität Freiburg
Albert-Ludwigs-Universität Freiburg: invested substantially (€ sufficient, para. 24) in ‘Freiburg Anthology’, a collection of 1100 German poems indicating author, title, opening line and publication year Directmedia: markets CD ‘1000 poems everyone should have’ used Freiburg Anthology as a guide, but assessed that guide critically, omitted certain poems, added others total overlap: 856 poems

‘extraction’ = act of transfer ‘The decisive criterion in this respect is to be found in the existence of an act of ‘transfer’ of all or part of the contents of the database concerned to another medium...’ (para. 36) transfer (+): technical process of copying transfer (+): simple manual process transfer (+): adaptation of database contents (para. 39) ‘... the particular risk for database makers of the increasing use of digital recording technology.’ (para. 49)

transfer (+): irrespective of objective pursued (para. 46) ‘Thus, it is of little importance that the act of transfer in question is for the purpose of creating another database, whether in competition with the original database or not, and whether the same or a different size from the original, nor is it relevant that the act is part of an activity, whether commercial or not, other than the creation of a database .’ (para. 47) protection of existing material impeding production of new databases?

exclusive rights to data as such?
Excessive sui generis protection? exclusive rights to data as such?

Exceptions and limitations

Art. 9 Database Directive 96/9/EC
optional exceptions: extraction for private purposes of the contents of non-electronic databases extraction for purposes of illustration for teaching or scientific research extraction and/or re-utilization for the purposes of public security or administrative/judicial procedures access to public documents (Art. 13 DBD)

Free access to public databases
‘This Directive shall be without prejudice to provisions concerning in particular […] trade secrets, security, confidentiality, data protection and privacy, access to public documents, and the law of contract.’ (Art. 13 Database Directive 96/6/EC)

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