The court ruled that the supply to the public by downloading, for permanent use, of an e book is covered by the right of communication to the public within the meaning of directive 200129, and not by the right of distribution to the public. Impacts of the cjeus ebook decision on the trade with. The analysis moves on to consider exceptions and limitations under the infosoc directive. It is true that the provisions of article 5 2a and b of the infosoc directive that allow member states to provide, under certain conditions, for a reprography or private copying exception do not explicitly refer to the authors as the beneficiaries of the associated fair compensation.
Vesting the copies of printed books in the authors or purchasers of such copies. Since the conclusion of the treaty may affect directive 200129 infosoc directive or alter its scope, the eu has exclusive competence to conclude that treaty. In part iii, we can find detailed chapters on the national implementations of the infosoc directive by the 28 member states. Directive 200129ec of the european parliament and of the council of 22 may 2001 on the harmonisation of certain aspects of and related rights in the information society the european parliament and the council of the european union, having regard to the treaty establishing the european community, and in particular articles 47 2, 55 and 95. This exercise presents extracts from directive 200129ec of the european parliament and of the council of 22 may 2001 on on the harmonisation of certain aspects of and related rights in the information society, more commonly known as the infosoc directive. Does the infosoc directive envisage digital exhaustion. The book provides for both a horizontal and a vertical analysis of the. Why cherrypicking never leads to harmonisation uvadare. Dec 21, 2011 the infosoc directive ten years after bernt hugenholtz institute for information law ivir december 21, 2011 leave a comment on may 22 of this year directive 200129ec was exactly 10 years old a birthday largely gone unnoticed. The implementation, application and effects of the eu directive on.
Construction of exceptions and limitations in the infosoc. May 22, 2001 this directive should be without prejudice to the member states option to derogate from the exclusive public lending right in accordance with article 5 of directive 92100eec. Article 31 of directive 200129 must be interpreted as meaning that it cannot be relied on by a collecting society in a dispute between individuals for the purpose of setting aside national legislation contrary to that provision. Are national courts the addressees of the infosoc threestep. New directive on copyright and related rights in the digital. Furthermore, in part ii, ted shapiro discusses the main rules of the infosoc directive. However, a physical book and an e book are treated differently under eu law. Therefore, specific contracts or licences should be promoted which, without creating imbalances, favour such establishments and the disseminative purposes they serve. Apr 21, 2019 at the eu level, this list is found in directive 200129ec, which is commonly referred to as the infosoc directive. The european law blog aims to highlight, and comment on, current developments in eu case law and legislation.
The infosoc directive please sign up for the course before starting the lesson. Article 31 of directive 200129 must be interpreted as meaning that it cannot be relied on by a collecting society in a dispute between individuals for the purpose of. Articles 52 to 55 of the directive very differently. The book provides for both a horizontal and a vertical analysis of the infosoc directive. The supply to the public by downloading, for permanent use, of an ebook is covered. While some of these exceptions are permissive for member states, others are mandatory. Nov 18, 2016 also, article 5 2 of the berne convention, to which the eu is a party and which the infosoc directive is intended, in particular, to implement, requires that authors must be able to exercise their rights of reproduction and communication without any formalities. For the cjeu, only authors have the right to exploit their works because the rights of reproduction and communication to the public provided to them by article 2a and article 31 of the infosoc directive are exclusive rights. Nonetheless, the ecj states that when determining the applicability of the parodyexception under article 5, par. Article 5 introduces a requirement for member states to introduce an. It is calculated as a proportion of the resale price net of tax.
The infosoc directive ten years after kluwer copyright blog. Jul 27, 2017 although the press release does not contain the exact questions referred, it appears that the core of the reference, which as also noted by the bgh is similar to the afghanistan papiere case concerns the interpretation of the notions of news reporting and quotation within article 5 3 of the infosoc directive. By setting harmonised standards, the eu law reduces national discrepancies, ensures the level of protection required to foster creativity and investment in creativity, promotes cultural diversity and ensures better access for. Article 53c, second case, and d of directive 200129ec of the european.
However, the bench was clear to point out that the software directive is lex specialis in relation to the infosoc directive, and therefore an e book should not be conflated with a computer program. The exhaustive list of exceptions contained in article 5 did. Directive 200129ec of the european parliament and of the council of 22 may 2001 on the harmonisation of certain aspects of and related rights in the information society. Article 5 exceptions and limitations, ip case law of the. Article 5 3 d of directive 200129, read in the light of article 5 5 of that directive, must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subjectmatter quoted. The italian court asked whether vcast could provide this service without the permission from the owner of the over the programme, with a specific query as to the application of the private copying exception provided in article 5 2b of the information society directive 200129ec infosoc directive. The cjeus assessment seems to contradict its prior assessment in the usedsoft decision pursuant to which the existence of a transfer of ownership changes an act of communication to the public provided for in art. Is article 41 of the infosoc directive to be interpreted as meaning that any form of distribution to the public of the original of a work or a copy thereof by sale or otherwise includes the making available remotely by means of downloading for use for an unlimited period of time of an e book ie a digital copy of a book by paying. The infosoc directive directive 200129ec, article 548. Member states can implement other limitations from the list in information society directive article 5, or retain limitations which were already in force on 22 june 2001. For the ecj, the sale of secondhand ebooks through a website constitutes a communication to the public that requires the authors authorization c26318. Ecj c201 an autonomous concept of what constitutes a. Is article 2 of the infosoc directive to be interpreted as meaning that any transfer between subsequent purchasers of a legally obtained copy in respect of which the right of distribution has been exhausted is tantamount to consenting to the acts of reproduction referred to therein, in so far as those acts of reproduction are necessary for the lawful use of that copy and, if so, what conditions would apply. The infosoc directive did not, in striking a balance between the interests of holders and the public, provide for a dynamic framework from the perspective of the enduser.
Directive 200129ec of the european parliament and of the council of 22 may 2001 on on the harmonisation of certain aspects of and related rights in the information society, more commonly known as the infosoc directive. This has created a situation where user rights across europe are a patchwork. Although these national chapters vary both in length and depth, they follow the main logic of the infosoc directive. Jan 31, 2014 article 4 of the infosoc directive establishes the holders distribution right and also the conditions of the rights exhaustion on first sale or other transfer of ownership of the. Article 5 2e, 3b and 5 of that directive is not such as to affect that interpretation. She also repeats the opinion that the danish way actually nullifies the whole purpose of that article. The resale rights directive created a right for the creators of works of art to participate in the proceeds of the resale of their work. Article 5 3d of directive 200129, read in the light of article 5 5 of that directive, must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subjectmatter quoted. Also, article 5 2 of the berne convention, to which the eu is a party and which the infosoc directive is intended. Also, article 5 2 of the berne convention, to which the eu is a party and which the infosoc directive is intended, in particular, to implement, requires that authors must be able to exercise their rights of reproduction and communication without any formalities. The cjeu needs to answer preliminary questions regarding digital exhaustion under the infosoc directive. Article 5 of the information society directive has gi.
Articles 5 and 6 of that directive exclusively determine exceptions to the exclusive rights applicable to computer programs. In this decision, the court of justice of the european union cjeu ruled that article 5 3n of directive 200129 the infosoc directive, read in conjunction with article 5 2c of the same directive, must be interpreted as allowing member states to grant publicly accessible libraries the rightunder certain conditionsto digitize the works contained in their collections. Mar 29, 2018 is article 41 of the infosoc directive to be interpreted as meaning that any form of distribution to the public of the original of a work or a copy thereof by sale or otherwise includes the making available remotely by means of downloading for use for an unlimited period of time of an e book ie a digital copy of a book by paying. However, that court deemed it unclear whether the defendant could invoke the digital exhaustion of the right of distribution in relation to its e book business.
Landmark ruling of the court of justice of the european union. In particular, attention focuses on three areasparody, quotation, and private copyingwhich serve to outline how the application of certain key standards, notably 1 the one according to which concepts in eu directives that make no reference to the laws of individual eu member states should be. Digital education action plan 5, there was a great need of introducing an exception that allows the use of digital materials in cross border teaching activities. Articles 24 contain definitions of the exclusive rights granted to. Cjeu will decide global media and communications watch.
The eu legislation is a set of eleven directives and two regulations, which harmonise essential rights of authors and of performers, producers and broadcasters. The reason for the unequal legal treatment lies in one of the fundamental principles of european law, the principle of exhaustion regulated in article 42 of the infosoc directive 200129. Cjeu says that member states may grant public libraries the. Apr 21, 2016 the italian court asked whether vcast could provide this service without the permission from the owner of the over the programme, with a specific query as to the application of the private copying exception provided in article 5 2b of the information society directive 200129ec infosoc directive.
Mar 22, 2018 article 172b requires that the infosoc directive is amended, to the effect that exceptions adopted pursuant to article 5 3a will be without prejudice to the exceptions and the limitation provided for in the new directive including tdm. The ipkat ag szpunar advises cjeu to rule that internet. Nov 25, 2016 amending the existing exception for teaching and scientific research article 5 3a of the infosoc directive to allow online and crossborder uses would have been better. She refers to the former opinion by the swedish government and reconfirms that a danish model would not be compatible with article 5. This directive should be without prejudice to the member states option to derogate from the exclusive public lending right in accordance with article 5 of directive 92100eec. However, it is unclear whether it could invoke the digital exhaustion of the right of distribution in relation to its e book trade. At article 5, the infosoc directive lays out exceptions to that eu member states may enshrine in their domestic legislation. In 2012 the orphan works directive 201228eu ec added another mandatory exception. If question 1 is to be answered in the affirmative, is the distribution right with respect to the original or copies of a work as referred to in article 4 2 of the infosoc directive exhausted when the first sale or other transfer of ownership of the e book is made by the owner, or with its consent, in the european union. Our posts are short comments on judgments and legislation and are intended for anyone who wishes to stay informed on eu law.
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