Abstract
This chapter will consider how the fundamental right of freedom of expression and information embodied in Article 10 of the European Charter of Human Rights (ECHR) may be viewed as an additional legal basis to compel the reconsideration of EU digital copyright law.747 It was emphasised above that copyright law enacted by the 2001 InfoSoc Directive, while failing to consider and effectively ensure the enforcement of exceptions to digital copyright, ends up running contrary to the clauses of the EC Treaty which aim to preserve national cultural policy and consumer protection.748 The first part of this chapter provides a brief overview of the legal framework of Article 10 of the ECHR and its influence on the protection of intellectual property. Then, how EU law may be re-adjusted to eliminate copyright-based restrictions that have the effect of depriving end-users of legitimate opportunities of communication over peer-to-peer networks and expression in respect of DRM-protected works will be discussed.
See the European Convention on Human Rights (ECHR), signed in Rome on 4 November 1950. Article 10 of the ECHR states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers [...] 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
See, respectively, §5.3. and §5.4., see supra.
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References
The enforcement of the ECHR by the ECJ began by the well-known Case 29/69, Stauder v. City of Ulm [1969] ECR 419.
See Treaty on European Union, OJ C 191, 29.07.1992, in the consolidated version published in the OJ C 325, 24.12.2002.
See Charter of Fundamental Rights of the European Union, OJ C 364/1, 18.12.2000.
See the EU Charter of Fundamental Rights on the website of the European Commission, Justice and Home Affairs, at: http://ec.europa.eu/justice_home/unit/charte/index/en_html.
See the Treaty establishing a Constitution for Europe, OJ C 310/1, 16.12.2004. The fundamental right of freedom of expression and information was included under Article II-11 of the constitutional treaty.
See ‘French say firm ‘No’ to the EU Treaty’, 30 May 2005, available at: http://news.bbc.co.uk/2/hi/europe/4592243.stm; and ‘Dutch say ‘No’ to EU Constitution’, 2 June 2005, at: http://news.bbc.co.uk/2/hi/europe/4601439.stm.
See Verso il nuovo trattato europeo, Centro nazionale di Informazione e Documentazione Europea (CIDE), available at: http://www.cide.it/Contenuti.
See Consolidated Version of the Treaty establishing the European Community, OJ C 325, 24.12.2002.
See ‘Statewatch Observatory on the EU Constitution and the Reform Treaty’, Statewatch, available at http://www.statewatch.org/euconstitution.htm.
See Hugenholtz, ‘Copyright and Freedom of Expression in Europe’, in: Elkin-Koren and Netanel (eds), The Commodification of Information, Kluwer Law International, The Hague 2002, p. 239, at p. 241. The Intellectual Property Clause under the U.S. Constitution is provided by Article 1, Sect. 8, Clause 8.
See Hugenholtz, ‘Copyright and Freedom of Expression’, Netanel (eds), The Commodification of Information, Kluwer Law International, The Hague 2002 op. cit., p. 242.
See Conseil constitutionnel, Decision N.2006-540 DC of 27 July 2006, which addressed the issue of compliance with the French Constitution of the Law on copyright and related rights in the information society, in the version finally approved by the French Parliament on 30 June 2006), paragraphs 30 and 31, available at: http://www.conseil-constitutionnel.fr/decision/2006/2006540/index.htm. Article 17 of the 1789 Declaration of Human Rights provides for the sacred and inviolable character of the right of property and for the condition of fair and preliminary compensation where the proprietor is deprived of the right for the pursuit of a public necessity ascertained by law. The text of the Declaration, which has constitutional value in France, is available in French at: http://www.conseil-constitutionnel.fr/textes/d1789.htm.
As remarked by the European Court of Human Rights in the case Anheuser-Busch Inc. v. Portugal, Application no. 73049/01, Second Section, judgment of 11 October 2005, paragraphs 42 and 43, available at: http://cmiskp.echr.coe.int, “the concept of possessions” has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. The issue that needs to be examined in each case is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 [...] The Court observes at the outset that intellectual property as such incontestably enjoys the protection of Article 1 of Protocol No. 1.” Former cases in which the Court found Article 1 applicable to intellectual property rights were Smith Kline and French Laboratories Ltd v. the Netherlands, Application no. 12633/87, decision of 4 October 1990; and British-American Tobacco Company Ltd v. the Netherlands, Series A no. 331, judgment of 20 November 1995.
See the decision taken by the European Court of Human Rights in the case Chappell v. The United Kingdom, Application no. 10461/83, judgment of 30 March 1989, in which the Court held that copyright constituted “rights of others” within the meaning of Article 8(2) of the ECHR.
See Hugenholtz, ‘Copyright and Freedom of Expression in Europe’, Netanel (eds), The Commodification of Information, Kluwer Law International, The Hague 2002 op. cit., pp. 245–246. In footnote 33, this author recalled, for instance, that the Supreme Court of the Netherlands, 26 February 1999, Nederlandse Juristprudentie 1999, p. 716, held that Article 10 of the ECHR was applicable to public telephone network considering its increasing relevance for the exchange of information and ideas.
In the Free Software Movement’s terminology, copyleft is a “general method for making a program free software and requiring all modified and extended versions of the program to be free software as well.” See ‘What is Copyleft’, http://www.gnu.org/licenses/licenses.html#WhatIsCopyleft.
See “Metadata Embedding”, at: http://creativecommons.org/technology/embedding#1. In Creative Commons’ jargon, this information is called “license verification link”, because it points back to a webpage that the licensor herself controls.
See Breyer, J., Concurring Opinion, in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., cit.: see §6.4.2., see supra.
See Juzgado de Primera Instancia de Badajoz, SGAE v. Ricardo Andres Utrera Fernandez, Procedimiento Ordinario 761/2005, Sentencia N. 15/2006: see’ spanish Court recognizes CC-music’, at: http://creativecommons.org/weblog/entry/5830.
See ‘Creative Commons licenses enforced in Dutch court’, available at: http://creativecommons.org/weblog/entry/5823.
See Conseil constitutionnel, Decision N.2006-540 DC of 27 July 2006, cit., Recitals 55–57. On this issue, the decision was commented upon by Lucas and Sirinelli, ‘La loi n°2006-961 du 1er août relative au droit d’auteur et aux droits voisins dans la société de l’information: premières vues sur le texte promulgué à l’issue de la censure du Conseil constitutionnel’, (20) Propriétés intellectuelles, July 2006, p. 297, at pp. 334–336.
See Groennings, ‘Costs and Benefits of the Recording Industry’s Litigation Against Individuals’, (20) Berkeley Technology Law Journal 2005, p. 571.
See Groennings, ‘Costs and Benefits [...]’, op.cit., p. 600.
See Recording Industry Association of America, Inc. v. Verizon Internet Services, 351 F.3d 1229, at pp. 1236–1237 (D.C. Circuit 2003).
See Groennings, ‘Costs and Benefits [...]’, op.cit., pp. 573–574, who recalled that, prior to the Verizon case, §512(h) of the U.S. Copyright Act provided copyright owners with a fast and cheap mechanism to discover suspected file-sharers’ identities. Indeed, by paying only a $35 fee even for multiple issuances, copyright owners needed to supply a copy of notification, the proposed subpoena and a sworn declaration that the information sought was for the sole purpose of protecting copyright: see U.S. Code, Title 17, §512(h)(2), (A) to (C). After receiving this documentation, courts were used to compel ISPs to disclose subscriber identification information without determining whether the alleged infringer violated any copyright laws.
See U.S. Code, Title 17, §506(a)(1) and (2). See Lemley and Reese, ‘Reducing Digital Copyright Infringement Without Restricting Innovation’, (56) Stanford Law Review 2004, p. 1345, at pp. 1395–1399; Groennings, ‘Costs and Benefits [...]’, op. cit., at pp. 594–595; Fisher, Promises To Keep, op. cit., at pp. 146–148.
See U.S. Code, Title 17, §506(a)(2). See Lemley and Reese, ‘Reducing Digital Copyright Infringement [...]’, op. cit., p. 137; Fisher, Promises To Keep, op. cit., p. 146.
See Fisher, Promises to Keep, op. cit., p. 146.
See Lemley and Reese, ‘Reducing Digital Copyright Infringement [...]’, op. cit., pp. 1395–1396; Fisher, Promises to Keep, op. cit., p. 148.
See Article 5 (“Confidentiality of the communications”) of Directive 2002/58/EC on privacy and electronic communications, OJ L 201, 31 July 2002, 37, which states: “1. Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation. In particular, they shall prohibit listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users, without the consent of the users concerned, except when legally authorised to do so in accordance with Article 15(1) [...]”.
See Techland and Peppermint Jam Records v. Wind Telecomunicazioni, Tribunale Ordinario di Roma, Order at interim measure proceedings. N. 26125/2007, 16 July 2007, available at http://www.altroconsumo.it/images/17/173003_Attach.pdf.
See Commission of the European Communities, Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights, COM(2006) 168 final, Brussels, 26.4.2006.
See Conseil constitutionnel, Decision N.2006-540 DC, cit., Article premier. In particular, the Court found that a few exemptions from criminal copyright liability violated the duties of transposition of EU law embodied in Article 88-1 of the French Constitution: see recital 30 of the Decision. For an in-depth examination of this issue, see Lucas and Sirinelli, ‘La loi n°2006-961 du 1er août relative au droit d’auteur et aux droits voisins dans la société de l’information’, La loi n°2006-961 du 1er août relative au droit d’auteur et aux droits voisins dans la société de l’information: premières vues sur le texte promulgué à l’issue de la censure du Conseil constitutionnel’, (20) Propriétés intellectuelles, July 2006 op. cit., p. 301.
See Groennings, ‘Costs and Benefits [...]’, op. cit., at pp. 591–600.
See Lemley and Reese, ‘Reducing Digital Copyright Infringement [...]’, op. cit., p. 1399.
See Lemley and Reese, ‘Reducing Digital Copyright Infringement [...]’, op. cit., p. 1391, drawing on Becker, ‘Crime and Punishment: An Economic Approach’, (76) Journal of Political Economy 1968, p. 169, at pp. 176–177, which is the foundational work in the field of the economics of criminal law.
See Netanel, ‘Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing’, 17(1) Harvard Journal of Law and Technology 2003, p. 1; Fisher, Promises to Keep, op. cit., p. 199; Lessig, The Future of Ideas, op. cit., pp. 241–258.
See Fisher, Promises to Keep, op. cit., p. 203.
See Fisher, Promises to Keep, op. cit., pp. 204–205.
See Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., p. 54.
Ibidem, pp. 57–58.
See Fisher, Promises to Keep, op. cit., p. 223; Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., p. 36.
Ibidem, pp. 223–234.
See Fisher, Promises to Keep, op. cit., p. 229.
See Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., pp. 53–55.
See Fisher, Promises to Keep, op. cit., pp. 231–232.
Ibidem, pp. 253–254.
See Fisher, Promises to Keep, op. cit., pp. 216–217.
See Fisher, Promises to Keep, op. cit., pp. 217–221; Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., p. 43.
See Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., p. 43.
See Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., p. 47; Fisher, Promises to Keep, op. cit., pp. 209–210. Both authors emphasised that legalisation of unauthorised non-commercial downloads would potentially supplant markets for hard copies (e.g., CDs and DVDs), consumer-ordered broadcasts such as pay-per-view cable TV, radio broadcasting and web-casting.
See Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., p. 44. This author proposed that, in the absence of agreement, the amount of remuneration fees would be set and periodically revised by means of mandatory arbitration procedure before authorities such as the Copyright Arbitration Royalty Panel (CARP). Under U.S. copyright law, the CARP sets prices that Internet web-casters must pay to copyright owners of sound recordings under the compulsory licence scheme created by the Digital Performance Right in Sound Recordings Act of 1995.
See Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., p. 42; Fisher, Promises to Keep, op. cit., pp. 204–205.
See Benkler, The Wealth of Networks. How Social Production Transforms Markets and Freedom, Yale University Press, New Haven and London 2006. An online version of this work is available under a Creative Commons Non-commercial/Share-alike license at: http://www.benkler.org.
See Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., p. 83.
Ibidem.
Hugenholtz, ‘Peer-to-Peer and Copyright, Are Levies a Solution?’, paper presented at the 3rd DRM Conference, Berlin, 14–15 January 2005.
Ibidem.
See Hugenholtz, ‘Peer-to-Peer and Copyright’, op. cit.
See Merges, ‘Compulsory Licensing vs. the Three “Golden Oldies”’, op. cit., pp. 6–10.
See Merges, ‘Compulsory Licensing’, op. cit., p. 9.
See Hugenholtz, ‘Peer-to-Peer and Copyright’, op. cit. To clarify this point, it worth recalling that, in the EU Member States which have established levy systems, authors’ collective societies are required by law to gather up fees and re-distribute them among their members according to criteria established by each society. In his remarks, Hugenholtz criticised the lack of transparency of these repartition criteria.
See Fisher, Promises to Keep, op. cit., pp. 209–215; Netanel, ‘Impose a Noncommercial Use Levy [...]’, op. cit., pp. 47–52.
See Article 5(2)(b) of the InfoSoc Directive, §4.4.1., see supra.
See §6.3.3., see supra.
See Ricolfi, ‘Individual and collective management of copyright in a digital environment’, in Torremans (ed) Copyright Law: A handbook of Contemporary Research, Edward Elgar, Cheltenham 2007.
See §8.3.3.2., see infra.
See Ricolfi, ‘Individual and collective management’ [...], op. cit., who wrote: “It is a clear invitation to think outside the box. To implement it, treaties have to be amended? So what? Let us amend them; and if this entails a shake up in other issues, as it may well be in a situation where issue linkage prevails, this may even be for the better.”
See §4.4.1., see supra.
See Commission of the European Communities, Copyright levy reform, Commission’s Work Programme for 2006 — Roadmap, cit. The Commission undertook this action on the assumption that national levies on digital equipment and media have unequally proliferated, with subsequent distortions in the Community-wide markets for digital media and consumer electronic goods: see §4.4.1, see supra.
See Sirinelli, ‘Droit d’auteur et droits voisins — Chronique’, (18) Propriétés Intellectuelles, January 2006, p. 58, at p. 65. The Alliance group was interestingly formed, on the one hand, by representatives of performer artists, certain categories of authors and, on the other hand, by associations of consumers and the Ligue de l’enseignement et les familles.
See Sirinelli, ‘Droit d’auteur et droits voisins — Chronique’, op. cit., p. 65.
See Bernault and Lebois, Peer-to-peer et propriété littéraire et artistique. op. cit., pp. 50–51, who stressed that, in January 2001, the French administrative commission that determines the recordable media subject to levies held that computer hardware should not be included in the list of such media. Obviously, the Alliance’s global licence would require modification of this policy.
See Sirinelli, ‘Droit d’auteur et droits voisins — Chronique’, op. cit., p. 65; Bernault and Lebois, Peer-to-peer et propriété littéraire et artistique, op. cit., pp. 73–74. In the Alliance’s proposal, the “four year” requirement for audiovisual works intended to take into account the usual time frame of commercial exploitation of movies in public performances, broadcasts and in DVD formats. This was an evident attempt by the proponents of the system to seek compliance of the global licence with the second requirement of the three-step test (which protects the “normal exploitation” of copyrighted works).
See Sirinelli, ‘Droit d’auteur et droits voisins — Chronique’, op. cit., p. 65.
See Bernault and Lebois, Peer-to-peer et propriété littéraire et artistique, pp. 77–78. However, as pointed out by Sirinelli, ‘Droit d’auteur et droits voisins — Chronique’, op. cit., p. 67, French Internet access providers were against the implementation of the global licence proposal.
See Bernault and Lebois, Peer-to-peer et propriété littéraire et artistique, op. cit., pp. 72–82, who argued that the practical implementation of a global licence system could have been based on the example of the existing system of mandatory collective administration of remuneration rights established for the case of reprography: see Article L.122-10 of the Intellectual Property Code, as amended by Act N.1995-4 of 3 January 1995.
See §8.3.2.2., see Lebois, Peer-to-peer et propriété littéraire et artistique, op. cit., pp. 72–82 supra.
It must be recalled that, to great surprise, the first part of the Alliance proposal was embodied in an amendment approved by one branch of the French legislative assembly (Assemblée Nationale) in a resolution of December 2005: see Lucas and Sirinelli, ‘La loi no2006-961 du 1er août relative au droit d’auteur et aux droits voisins dans la société de l’information’, op. cit., p. 333.
To simplify the analysis, it is assumed here that the mandatory collective licensing of acts of uploading (i.e., making copyrighted works available to the public) effectively extends to and authorise corresponding acts of downloading. This assumption, though, was very controversial. As pointed out by Sirinelli, ‘Droit d’auteur et droits voisins — Chronique’, op. cit., p. 67, the Alliance proposal, which was limited to French law, could only have the effect of legalising acts of uploading originating from the French territory. To the contrary, the proposal could not have the same effect in respect of acts of uploading directed to foreign recipients.
See Sirinelli, ‘Droit d’auteur et droits voisins — Chronique’, op. cit., p. 66.
See Lewinski, ‘Mandatory Collective Administration of Exclusive Rights — A Case Study on Its Compatibility with International and EC Copyright Law’, e-Copyright Bulletin, January–March 2004, available at http://portal.unesco.org/culture/en/ev.php, p. 5; Guibault, Copyright Limitations and Contracts, op. cit., pp. 26–27, who made clear that “technically speaking, such a measure constitutes a condition to the exercise of a right rather than a exception on that right [...]”. While drawing on the disposal of the Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyrights and rights related to copyright applicable to satellite broadcasting and cable retransmission, OJ L 248, 6.10.1993, 15–21 (hereinafter “Satellite and Cable Directive”), Lewinski pointed out that Recital 28 of this Directive explicitly recognised that, under the regime of mandatory collective administration established by Article 9(1) in respect of the right to authorise or prohibit cable retransmission, the exclusive right “... as such stays intact and only the exercise of this right is regulated to some extent”.
See Lewinski, ‘Mandatory Collective Administration of Exclusive Rights [...]’, p. 5.
See Guibault, Copyright Limitations and Contracts, op. cit., p. 26. The suitability of this technique in the case of unauthorised file sharing might derive from the fact that, due to a far too great number of potential licensees among file-sharers on peer-to-peer networks, the exploitation of online exclusive rights might be better exercised on a col lective basis rather than on an individual basis. In Europe, this legal technique is well developed in Scandinavian countries (i.e., Denmark, Finland, Sweden, Norway) where the law, since the early 1960s has conferred “extended” effects upon collective agreements which administer certain exclusive rights (e.g., the right to authorize the broadcasting of music works). Under these schemes, the law provides that copyright licences concluded by organisations of right-holders with a user or a group of users shall apply even to right-holders who are not members of the contracting organisation.
To demonstrate that EU copyright law does not mean mandatory collective administration as a copyright exception, Lewinski, ‘Mandatory Collective Administration of Exclusive Rights’, op. cit., pp. 13–14, pointed out that the InfoSoc Directive, which strictly regulates the right of communication to the public (see Article 3(1)), includes neither the option of mandatory collective administration nor that of non-voluntary licences in the exhaustive list of exceptions or limitations to this right provided by Article 5(3). According to this author, this provision clearly suggests that cases of compulsory licensing fall outside the scope of regulation of the Directive. The same conclusion is derived from the wording of Recital 18 of the InfoSoc Directive, which reads: “This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences”.
See Ficsor, ‘Collective Management of Copyright and Related Rights at a Triple Crossroads: Should it Remain Voluntary or May It Be “Extended” or Made Mandatory?’, e-Copyright Bulletin, October 2003, available at: http://portal.unesco.org/culture/en/ev.php, p. 4.
See Ficsor, ‘Collective Management of Copyright and Related Rights at a Triple Crossroads’, op. cit., p. 4; Lewinski, ‘Mandatory Collective Administration of Exclusive Rights’, op. cit., p. 10.
See Ficsor, ‘Collective Management of Copyright and Related Rights at a Triple Crossroads’, op. cit., p. 7.
See Lewinski, ‘Mandatory Collective Administration of Exclusive Rights’, op. cit., p. 6.
See Ricolfi, ‘Individual and collective management of copyright in a digital environment’, op. cit.
See Ficsor, ‘Collective Management of Copyright and Related Rights at a Triple Crossroads’, op. cit., pp. 5–8.
Ibidem.
See 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, OJ L 346, 27.11.1992, p. 61. The provisions of Article 4(1) and 4(2) of the Rental Right Directive introduced a “non-waivable right to equitable remuneration” in favour of authors and performers on the rental of phonograms and audiovisual works in which their works or their performances have been incorporated.
Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art, OJ L 272, 13.10.2001, p. 32.
See Ficsor, ‘Collective Management of Copyright and Related Rights at a Triple Crossroads’, op. cit., p. 5.
See von Lohmann, IAAL (I Am A Lawyer): What Peer-to-Peer Developers Need to Know about Copyright Law, op. cit., who intended to provide peer-to-peer software designers with guidelines on how to avoid indirect copyright liability under U.S. copyright law.
See Strowel, ‘Le P2P: un problème pressant en attente d’une réponse legislative?’, (17) Propriétés Intellectuelles, October 2005, p. 428, pp. 430–433.
See Article 15 of the E-Commerce Directive. On this issue, see Strowel, ‘Le P2P: un problème pressant en attente d’une réponse legislative?’, op. cit., p. 433.
See Einhorn and Rosenblatt, ‘Peer-to-Peer Networking and Digital Rights Management. How Market Tools Can Solve Copyright Problems’, (534) Policy Analysis 2005, available at: http://www.cato.org, pp. 9–11.
See Ganley, ‘Surviving Grokster: Innovation and the Future of Peer-to-Peer’, op. cit., p. 24; Einhorn and Rosenblatt, ‘Peer-to-Peer Networking and Digital Rights Management’, op. cit., pp. 12—13.
See Rosenblatt, ‘MySpace Adopts Acoustic Fingeprinting’, DRM Watch, 2 Novembre 2006, available at: http://www.drmwatch.com/ocr/article.php/3641591.
See Ganley, ‘Surviving Grokster’, op. cit., p. 24.
See Hugenholtz, ‘Copyright and Freedom of Expression in Europe’, Netanel (eds), The Commodification of Information, Kluwer Law International, The Hague 2002 op. cit., p. 262.
See Hugenholtz, ‘Copyright and Freedom of Expression in Europe’, Netanel (eds), The Commodification of Information, Kluwer Law International, The Hague 2002 op. cit., p. 262; Burrell and Coleman, Copyright Exceptions. The Digital Impact, Cambridge University Press, Cambridge, 2005, pp. 35–41. Burrell and Coleman emphasised that, in the conflict with copyright law, freedom of expression needs to be given much greater weight in the case of copyrighted information relevant to the political process (e.g., information concerning the conduct of politicians and public persons; the policies, funding, structure and behaviour of political parties, trade unions, religious bodies, universities and large corporations; public health and public safety, etc).
See Hugenholtz, ‘Copyright and Freedom of Expression in Europe’, Netanel (eds), The Commodification of Information, Kluwer Law International, The Hague 2002 op. cit., p. 263.
This is what Burk and Cohen called “fair use infrastructure”: see Burk and Cohen, (“Fair Use Infrastructure”), op. cit., pp. 54–70. See, also, Geiger, ‘Copyright and Free Access to Information’, op. cit., pp. 370–372; and Burrell and Coleman, Copyright Exceptions, op.cit., p. 279.
As proposed by a few commentators, the goal of protecting freedom of expression and encouraging intellectual production in the digital world should also compel legislators to positively map the subject-matter of the public domain, which comprises all information not eligible for copyright protection and that no one should be entitled to make excludable (i.e., inaccessible) by technical means: see Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 370; Samuelson, ‘Mapping the Digital Public Domain’, available at: http://www.law.duke.edu/journals/lcp/archive.html.
See Burrell and Coleman, Copyright Exceptions, op. cit., pp. 308–309.
See Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 65.
See Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 65.
Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 66, argued that a publicly funded institution would be the most suitable choice because the public policies underlying the fair use doctrine require some guarantees of public accountability and institutional longevity.
Burk and Cohen’s system was designed to apply to anti-circumvention protection of both U.S. and non-U.S. works. Moreover, these authors stressed that, for the selfdefence of fair circumvention to be realistic, the so-called anti-device and antitrafficking provisions would need to be modified: see Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 66.
See Burrell and Coleman, Copyright Exceptions, op. cit., p. 276.
See Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 70.
See Burrell and Coleman, Copyright Exceptions, op. cit., p. 281.
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(2008). Copyright policy alternatives for preserving end-user freedom of expression and information. In: EU Digital Copyright Law and the End-User. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-75985-0_8
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