Finally! The text of Poland’s Legal Challenge of Copyright Directive was published

Woman Reading a Letter
Does art. 17 violate the right to freedom of expression?
Licentie

Earlier this year, Poland initiated a legal challenge against Article 17 of the Directive on copyright in the Digital Single Market before the Court of Justice of the European Union (CJEU) [C-401/19]. The CJEU has finally published the application for this legal challenge. Our member, Centrum Cyfrowe Foundation, has tried to get access to the complaint before using Freedom of Information requests, without success… 

In our opinion, referring the Directive to the Court of Justice is a good step that can help clear controversies concerning Article 17. An independent court will assess issues that in the policy debate are usually dismissed by representatives of rightsholders as fear-mongering or disinformation.

The Republic of Poland seeks the annulment of Article 17(4)(b) and Article 17(4)(c), in fine of the Directive on copyright in the Digital Single Market. In the alternative, should the Court find that the contested provisions cannot be deleted from Article 17 of Directive without substantively changing the rules contained in the remaining provisions of that article, the Republic of Poland claims that the Court should annul Article 17 of Directive in its entirety.Continue reading

The Copyright Directive challenged in the CJEU by Polish government

Effata Regum Poloniae usque ad Ioannem Casimirum [...]
An independent court will assess the Directive
Licentie

Copyright not only regulates the interests of creators and intermediaries, but also applies to users’ rights. This was one of our main arguments in the discussion on Article 17 of the new copyright directive, which was often disregarded by our opponents. In our opinion Article 17 is not well-balanced and creates threats to freedom of expression. Such an assessment is shared by others: the UN Special Rapporteur on Freedom of Expression, non-governmental organizations dealing with digital rights, and a significant part of the academy. Now the very same objections will be evaluated by Court of Justice of the European Union.

Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:

“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”

Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”Continue reading

CJEU ruling in Doke & Soulier case emphasizes the need for a real solution to the out-of-commerce problem

Strafpleiters
Universal access to out of commerce works now!
Licentie

Last week the CJEU handed down another judgement dealing with digital activities of libraries (see our take on the e-lending decision from 2 weeks ago here). In its judgement in the Doke & Soulier case (C 301/15) the court ruled that the French law on out-of-print books, which allows French publishers to publish digital editions of out-of-print books, violates the exclusive rights of authors as established by the InfoSoc directive. This means that the French scheme for making out-of-print books available (reLire) will either need to be modified or scrapped.

The judgement does not come entirely unexpected as it is largely in line with the Advocate General opinion from earlier this year. As we have already noted in our analysis of the AG opinion, the case has the potential to undermine Extended Collective Licensing (ECL), which is currently held as the solution for the issue of out-of-commerce works.

At this point it is unclear how the Doke & Soulier judgement relates to the EU Commission’s proposal for dealing with out-of-commerce works in the collections of cultural heritage institutions—currently a part of the proposal for a Copyright in the Digital Single Market directive. Regardless, the judgement  casts a shadow of doubt over ECL arrangements such as the one at the center of the Commission’s proposal. This is mainly due to the fact that through this decision the court has established stringent criteria that national measures would need to fulfil. The fact that according to the court “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes” (para 38) seems to contradict the very purpose of Extended Collective Licensing arrangements, which is to circumvent the need to clear rights on a per-work (or per-rightsholder) basis.

Can ECL still provide a solution for out-of-commerce works?

Looking at the reasoning of the court, it becomes evident that the judgement is not so much concerned with the operation of of ECL as a legal mechanism, but rather with the question of whether EU member states can limit the ability of authors to exercise their exclusive rights in ways other than those foreseen by the EU legislator. The court answers this with a resounding “no” and then goes on to examine whether the French system respects the ability of authors to object to the use of their out-of-print works. The court comes to the conclusion that it does not, because authors are neither individually informed about future uses of their works, and because their ability to opt out of such uses is limited. In summary, the court does not declare ECL in general incompatible with the InfoSoc directive, but has ruled, that the French ECL implementation does not sufficiently respect the authors’ exclusive rights. Continue reading

CJEU on e-lending: The right to lend books includes the right to lend electronic books.

Keizerlijke bibliotheek en rariteitenkabinet
The right to lend is the right to lend!
Licentie

Yesterday the Court of Justice of the European Union delivered good news in a case that that eagerly watched by Librarians across the Europeana Union. In its judgement in the case VOB vs Stichting Leenrecht (C-174/15 – press release here) the court ruled that rental right and lending right directive also covers e-lending. This is good news for libraries and their users as this means that (within certain limits) libraries can lend out e-books on the same legal basis as they lend out paper books. Prior to this judgement it was generally assumed that e-lending was not included in the scope of the rental right and lending right directive and as a result public libraries wishing to lend out e-books had to conclude licenses with publishers in order to do so.

Yesterday’s judgement came out of a reference to the CJEU in the context of proceedings brought by the Association of Dutch Public Libraries (VOB) which held the view that libraries are entitled to lend e-books included in their collections according to the principle “one copy one user”. This view was not shared by the Dutch government which has passed legislation based on the premises that the digital lending of electronic books does not come within the scope of the exception provided by the rental right and lending right directive.

The VOB wants libraries to allow users to download an electronic copy of a work included in the collection of a library while ensuring that  – as long as that user can access that copy – it is not possible for other library users to download another copy. At the end of the e-lending period, the copy downloaded by the first user would become inaccessible, and as a result another lender can download a separate copy. Continue reading

Advisor to the Court of Justice of the EU: copyright law must evolve with technology

Johan van Oldenbarnevelt verschijnt voor zijn rechters
An important step forward for libraries
Licentie

While the European Commission is still busy determining what changes to propose to the EU copyright framework this fall, some stakeholders have decided that instead of waiting for an update of the EU copyright rules (that is at least four years away), they are better of attempting to expand the existing rules. Last year the Dutch Association of Public Libraries (VOB) started a legal procedure against the Dutch organization tasked with distributing to authors the remuneration that libraries pay for lending out books (Stichting Leenrecht).

In addition to paper books, the VOB wants to lend out e-books, but is concerned that the EU directive on the rental and lending rights of books does not cover digital lending. Instead of waiting for an update to the directive, the VOB decided to go to court to clarify the issue. The Dutch Court subsequently referred the case to the the Court of Justice of the European Union (CJEU) and asked it to answer the question if digital lending is covered by the Rental and Lending Rights Directive.

While the court’s decisions in the VOB vs Leenrecht case is not expected until late this year, Advocate General (AG) Maciej Szpunar delivered his opinion last Thursday. In its opinion AG Szpunar advises the CJEU to rule that art 1(1) of the Rental and Lending Rights Directive must be interpreted to include the right to lend electronic books included in a library’s own collection. While AG opinions generally offer a good indication of how the Court will decide, they have no direct effect and it is important to remember that the court can also come to a different conclusion than the AG. This of course is exactly the outcome that the VOB had hoped for and as such this AG opinion represents an important step in the fight of libraries to be allowed to adopt their activities to the digital environment. Continue reading