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Integrating Consumer Rights into Copyright Law: From a European Perspective

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Abstract

Until recently consumers and consumer-interests have been virtually absent not only from the rules of copyright but also from copyright’s discourse. This has been so even though the combination of an expansion of copyright and a devaluation of the internal balancing mechanisms raise concern from a consumer perspective. There would, therefore, seem to be a need to incorporate a consumer perspective into copyright analysis. To integrate consumer interests in copyright law, this study recommends action aimed at two levels. On the general level it is suggested to rebalance copyright in order to recognize the interests of users on the same level as right holders. On the concrete level it is suggested to change the limitations found in copyright to ease access to reuse elements of previous works. It is also proposed to reinforce the rule on private copying and to consider measures to secure access to basic information.

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Notes

  1. See the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994), Article 7: “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.” Similarly, the Infosoc.-Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society), Recital 4. See also the Database Directive (Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases), Recital 12 and the Rental Directive (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 (codified version)), Recital 5.

  2. Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 4/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council.

  3. Recital 9: “Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.” (emphasis added)

  4. Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs.

  5. E.g., Cohen (2005), Elkin-Koren (2007), Engelbrekt (2008), Guibault and Helberger (2005), Helberger (2005), Helberger and Hugenholtz (2007), Litman (2007) at pp. 1875, Liu (2003), and Mak (2008). An early exception to copyright’s lack of interest in users is Patterson, and Lindberg (1991) who describes “the law of users’ rights” as “an essential component of copyright law” and defines it as consisting of two branches: “the law of personal use and the law of fair use” (p. 193).

  6. The Review among other things recommends to improve the balance and flexibility of IP rights to enable consumers to use material in ways that do not damage the interests of right holders and will help ensure that citizens have trust in the system, Growers Review, p. 4 and further below in section “Concrete Initiative: “Consumers’ Rights?””.

  7. 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.

  8. Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights.

  9. The Infosoc.-Directive Article 6(3) defines “technological measures” as “...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 authorized by the right holder 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.” The protection only covers “effective” measures, Article 6(3) in fine.

  10. Paraphrasing McManis (1999) on the “shrink-wrapping” which takes place with the sale of copies of (typically) computer programmes.

  11. It is finally a point worth noticing that the right holders are actively using the policing abilities given to them, see e.g. Litman (2007), p. 1873–1874: “Today ... the recording industry has sued more than 20,000 individuals for making personal uses that can be characterized as ‘commercial’ only be redefining commercial to mean ‘unlicensed”.

  12. Similarly the WIPO Performances and Phonograms Treaty (WPPT), Article 18.

  13. I will not deal with external balancing mechanisms such as competition law.

  14. Computer Programmes Directive, Article 1(3), Database Directive, Article 3(1) and Terms Directive, Article 6 (on photographs).

  15. TRIPs, Article 9(2): “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” See expressly on computer programmes where the line between (non-protected) ideas and principles and protected (i.e. original) expressions of ideas etc. has been particularly difficult to draw the Computer Programmes Directive, Article 1(2).

  16. Likewise TRIPs, Article 10(2) in fine.

  17. This is also the conclusion of Herr (2008), p. 122: “Clearly ... the creation of a database right represents a rejection of the idea/expression dichotomy as one of the major mechanisms through which unoriginal content is freely available and remains in the public domain”.

  18. I.e. databases which consist of material which has been created rather than obtained in the process of making the database.

  19. Case C-46/02, Fixtures Marketing Ltd v Oy Veikkaus Ab, [2004] ECR I-10365, Case C-338/02 Fixtures Marketing Ltd v Svenska Spel AB. [2004] ECR I-10497, Case C-444/02 Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairou AE (OPAP) [2004] ECR Page I-10549 and Case C-203/02, The British Horseracing Board Ltd and Others v William Hill Organization Ltd. [2004] ECR I-10415. See generally Herr (2008), pp. 104–115.

  20. The same principle is included in Article 13 of the TRIPs Agreement which applies to all the exclusive rights of the right holder and is not limited to the right of reproduction.

  21. See also Tawfik (2005), p. 85 according to whom neither the Berne Convention nor the WCT would prevent the development of ”users rights”. No such strings were apparently felt by the Canadian Supreme Court in CCH Canadian Ltd. V. Law Society of Upper Canada, 2004 SCC 13.

  22. First Civil Chamber 28 February 2006, Perquin and UFC Que Choisir v. SA Films Alain Sarde, Sté Universal Pictures vidéo France et al, IIC 2006.760.

  23. CCH Canadian Ltd. V. Law Society of Upper Canada, 2004 SCC 13 at point 48.

  24. Gesetz zur Stärkung der vertraglichen Stellung von Urhebern und ausübenden Künstlern vom 22. März 2002.

  25. The classic US example of copyright protection being “reined in” by courts would be Feist Publications, Inc. v. Rural Telephone Services Co. Inc., 499 U.S. 340 (1991), where the Supreme Court raised the bar and denied protection under copyright for a mundane collection of telephone listings.

  26. As in the Canadian case, footnote 21.

  27. The Commission clearly intends this to include consumers, see at p. 19: “Consumers are not only users but are increasingly becoming creators of content”.

  28. The Gowers Review (2006) recommends (No. 8) “a [very] limited private copying exception” for format shifting only. The limitation would allow only one copy per format, apply only to works published after the law came into effect but would not be accompanied by levies for consumers, ibid., p. 63.

  29. Another starting point could be the “clusters” brought forward by Hugenholtz and Okediji (2008), pp. 43-44 e.g. on “Innovation Promoting” and “Fundamental Freedoms”.

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Acknowledgement

Thanks to professors Thomas Riis, Copenhagen Business School, and Lisa Ramsey, University of San Diego School of Law, for comments on an earlier draft.

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  1. Faculty of Law, Centre for Studies in Legal Culture, University of Copenhagen, Studiestræde 6, 1455, Copenhagen, Denmark

    Jens Schovsbo

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Correspondence to Jens Schovsbo.

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This study has been supported by a research grant from the Danish Agency for Science, Technology and Innovation.

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Schovsbo, J. Integrating Consumer Rights into Copyright Law: From a European Perspective. J Consum Policy 31, 393–408 (2008). https://doi.org/10.1007/s10603-008-9079-0

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