COMMUNIA’s Post

Today, our independent expert study with Bernd Justin Jütte “Copyright as an Access Right: Concretizing Positive Obligations for Rightholders to Ensure the Exercise of User Rights” prepared for COMMUNIA and the International Federation of Library Associations and Institutions (IFLA)/KnowledgeRights21, has been published online and is available at: https://lnkd.in/er4RRQYe; https://lnkd.in/e8Dt72Mq   In this comprehensive study, drawing on our previous work on the social function of copyright and its analysis through the prism of fundamental rights but also on the case law of the CJEU and ECtHR, we develop the idea that copyright is based on a social contract which implies reciprocal obligations: any grant of intellectual property rights should necessarily entail legal obligations also for rightholders. To ensure that copyright performs its core function in the Member States of the EU, we conclude that it is primarily a duty of the legislator to create a framework that serves to realize these rights. Yet, despite repeated interventions by the Court of Justice of the European Union, which has affirmed the existence of rights of users of protected subject matter, it remains unclear what concrete measures are required to render these rights effective. The study explores what positive obligations rightholders should have as a consequence of the rights users enjoy under copyright law, in particular in the light of the fundamental rights they are reflecting, and makes proposals for future substantive and governance reforms for copyright at EU level.   We would like to thank Teresa Nobre and Stephen Wyber for their trust

In our new paper “Copyright, the Right to Research and Open Science: about time to connect the dots”, Bernd Justin Jütte and I examine copyright through the prism of Open Science and in the light of the Right to Research, connecting it both to a larger, constitutional argument which suggests that enabling research through copyright law is a pressing societal, economic and fundamental rights-imperative. We conclude on the necessity to design a research-enabling copyright framework that provides researchers with access to the necessary knowledge, information and data necessary to research and innovate, and suggest substantive and institutional modifications to copyright law at EU level through legislative interventions and judicial interpretations that would remove significant barriers towards open science.   The paper is available now available online at: https://lnkd.in/eiT-z5Kn This paper is forthcoming in the volume “A Research Agenda for EU Copyright Law” edited by Enrico Bonadio & Caterina Sganga: thank you for this invitation to reflect on future research paths for copyright law, particularly relevant at a moment where the legislative reform agenda for the next European Commission is still in the making!

🌏 Dear IP Professionals, In the digital age, where ideas travel at the speed of light, harnessing the power of intellectual property (IP) is a key driver of economic growth for nations worldwide. Among the various facets of IP, copyright law plays a pivotal role in shaping the economic landscape. Let's delve into how a robust copyright framework can be a catalyst for prosperity. 1. Fostering Innovation 🚀 Copyright law encourages creators and innovators to produce new works, from literature to software, music to film. A strong copyright system provides creators with the assurance that their efforts will be protected and rewarded. In turn, this fosters innovation, driving economic growth through the creation of new products, services, and industries. 2. Attracting Investment 💼 Investors seek stability and predictability. Countries with well-defined copyright laws and robust enforcement mechanisms are more attractive destinations for foreign investments. A thriving creative sector not only generates jobs but also entices capital, contributing to economic expansion. 3. Expanding Exports 🌐 Copyrighted content often serves as a country's cultural and economic ambassador. Movies, books, music, and software produced domestically can become global hits, exporting culture and generating revenue. Copyright protections enable these exports to flourish on the international stage. 4. Nurturing Small Businesses 🌱 Small and medium-sized enterprises (SMEs) are the backbone of many economies. Copyright law empowers these businesses by protecting their intellectual assets, allowing them to compete on a level playing field. In doing so, it fuels entrepreneurship and drives economic growth. 5. Digital Transformation 📲 In the digital era, copyright law plays a crucial role in regulating the use of content online. By striking a balance between protecting creators' rights and fostering access to knowledge, it supports the growth of digital economies. As intellectual property professionals, we understand the intricate dance between creativity, innovation, and economic prosperity. Let's continue to advocate for copyright laws that not only safeguard the rights of creators but also stimulate economic growth for our nations. Let's work together to build a future where copyright law is not just a legal framework but a cornerstone of economic prosperity. 🌟 Learn more and access the full Copyright Law's book here. https://lnkd.in/dtenAe4h #IntellectualProperty #CopyrightLaw #EconomicGrowth #Innovation #GlobalEconomy

I am thrilled to share that the Republic of Armenia has recently introduced a draft law aimed at strengthening the protection of copyright holders and their works. This new legislation, regarding the responsibility for the illegal use of copyrighted materials, demonstrates the legislator's commitment to safeguarding intellectual property rights. One of the positive aspects of this proposed law is addresses the issue of compensation for copyright infringement, emphasizing multiple options for the copyright holders. They have the right to demand compensation in double the amount of the fee or remuneration they would have received if the offender had obtained permission to use the copyrighted material. Alternatively, they can seek compensation equivalent to the actual damage caused, including lost profits. Additionally (and the new option), the law sets compensation at 20-fold to 2000-fold of the established minimum wage, taking into account the specific circumstances of each case. Importantly, the draft law aims to deter repeat offenders by imposing a higher minimum compensation if the copyright holder previously notified the offender and they refused to terminate the offense within ten days of receiving the notification. This provision sends a powerful message that copyright infringement will not be taken lightly, and individuals or entities engaging in such activities will face significant penalties. The draft law also provides clarity in cases where a work has multiple copyright holders, specifying that the total compensation must not exceed the amount provided for in the law and should be distributed among the copyright holders according to their agreement or as per the law's provisions. In conclusion, the introduction of this draft law in the Republic of Armenia represents a positive step towards strengthening the protection of copyright and intellectual property rights. It highlights the legislator's commitment to supporting creators, artists, and innovators by ensuring that their works are respected and their rights are protected. I applaud this initiative and look forward to seeing how it will contribute to the growth and development of the creative industries in Armenia. I want to express my gratitude to all the authors of the bill and all those who were engaged in promotion! See more- https://lnkd.in/dFqcah7J #copyright #IPlawinArmenia #bill #responsibility

My new post covers last week’s massive decision on web scraping, with a California federal court ruling that the Copyright Act preempted X’s contract and other state law claims against web scraping company Bright Data. The N.D. Cal. (Judge Alsup) held that enforcing X’s anti-scraping terms would conflict with federal copyright law, including because it would give X control over rights belonging to its users, constrain fair use, and reduce works in the public domain. The opinion could have major implications for the infringement claims against the AI platforms and any case concerning the enforcement of online terms or other state-law-derived restrictions on content. This is the first time any court has applied the Second Circuit’s conflict-based copyright preemption test (In re Jackson), and the first time any court has invoked conflict preemption to find that a contract claim was preempted by the Copyright Act.

Implications for Platforms Specific Contractual Terms: For breach of contract claims to avoid preemption, platforms must ensure that their ToS include specific provisions that introduce “extra elements” beyond what is covered by copyright law. For example, terms related to data security, technical access restrictions, or specific performance obligations might help distinguish the contract claim from a copyright claim. Alternative Legal Strategies: • Computer Fraud and Abuse Act (CFAA): Platforms can pursue claims under the CFAA if scraping activities involve unauthorized access to computer systems. • Trespass to Chattels: This common law claim can be used if scraping activities cause harm to the platform’s servers or systems. • DMCA Violations: Platforms can issue takedown notices under the DMCA for unauthorized use of copyrighted content, leveraging federal protections to enforce their rights. Conclusion While breach of contract claims brought by platforms like Twitter for scraping activities may face preemption issues under the Copyright Act, platforms can mitigate this risk by carefully crafting their terms of service to include specific provisions that go beyond copyright concerns.

🎄✨ 'Tis the season to celebrate creativity and protect the festive magic online! As Robertson IP, let's unwrap the wonders of intellectual property and explore how the holiday cheer extends to the digital realm, safeguarding the unique and creative holiday-themed websites with the magical wand of copyright! In the enchanting world of the web, every festive website becomes a digital snowflake, and just like the real thing, it's as unique as the twinkling lights on a Christmas tree. From dazzling designs to heartwarming written content, these online wonders are a testament to the creativity that makes the holiday season truly special. Guardians of Originality: Copyright In the winter wonderland of intellectual property, copyright emerges as the sturdy guardian of originality. The moment a web designer crafts a whimsical layout, or a wordsmith weaves a story of holiday joy, they are essentially creating a masterpiece that deserves protection. Designs that Dazzle: Copyright in Visual Elements The visuals of a festive website, from the merry graphics to the dancing animations, are digital brushstrokes that deserve recognition. Copyright extends its protective embrace to these elements, ensuring that the unique visual identity of a holiday-themed website remains as exclusive as Santa's workshop. Words that Warm the Heart: Copyright in Written Content 'Twas the night before Christmas, and the words on the website danced with festive delight! From jolly greetings to heartwarming tales, the written content of a holiday-themed website is a treasure trove of creativity. Copyright steps in, wrapping these words in legal ribbons to keep them safe from digital grinches. Defending the Festive Spirit: Enforcement of Copyright But fear not, for Robertson IP stands as a vigilant sentinel in the snowy expanse of cyberspace. Should any digital scrooge attempt to steal the holiday magic, copyright law acts as a shield, ready to defend the festive spirit and ensure that the creators receive their rightful credit and protection. Celebrate, Create, and Copyright So, as we deck the virtual halls and light up the pixels with holiday glee, let's celebrate the creativity that makes each website a festive masterpiece. Embrace the magic, create with joy, and remember that copyright is the festive bow that ties it all together, ensuring that the spirit of the season lives on in the digital wonders we create. Wishing you a season filled with creativity, joy, and the magic of intellectual property protection! 🎉🎄🎁 #FestiveIP #CopyrightMagic #HappyHolidays

In the recent case of Blacklock's Reporter v Canada, 2024 FC 829, the Federal Court addressed the intersection of two perpetually-hot topics in copyright law: technological protection measures (TPMs) and fair dealing. (And if you know me, these are two topics that are near and dear to me!) The decision addressed an issue previously left open - whether fair dealing applies as a defence to circumvention of TPMs. In no uncertain terms, the Court agreed with the intervenor (CIPPIC) that "TPM provisions do not apply to restrain fair dealing" and found that "fair dealing and TPM were meant to co-exist in some harmony so long as the dealing is fair". In the result, the defendant Parks Canada was not liable to the plaintiff for their employees' sharing of a legitimately-obtained password to an institutional account to access a paywalled article. The decision is already being celebrated as a clear win for user's rights. One curious aspect of the decision, however, was that the Court was at pains not to address whether a "password" was an "effective" TPM (one of the few pre-conditions to enforce a TPM under the Copyright Act). It appears the Court found that because the act of sharing the password between individuals of the same department was fair, that itself did not constitute "circumvention". If this is true, then the fair dealing passage would arguably be obiter - since, if there was no circumvention, there needn't have been a defence. Alas, the structure of the Copyright Act does not make it clear which should come first - a puzzle for another day. https://lnkd.in/gEdqh-De

I'm a couple days late celebrating Public Domain Day! Everyone's been a buzz about the expiration of copyright protection for Steamboat Willie. Folks are already using the cartoon's public domain status in stride, between re-imaginings of the cartoon using AI, an actual horror film in the works, to inserting him into whimsical advertisements for products. But Willie isn't the only work that moved into the public domain this year- some other works of note: 1. Tigger, by way of House at Pooh Corner- the most wonderful thing about Tigger was that he was the only one. Not anymore. 2. Peter Pan, the play- turns out the novel "Peter and Wendy" has been in the public domain since 1967, but the play was published in 1928 3. Mack the Knife- DYK it was originally written in German? 4. Should Married Men Go Home?, a film- it is the first film dubbing Laurel and Hardy as a team 5. Yes! We Have No Bananas, the sound recording by Billy Jones- part of a large group of sound recordings from 1923, don't be surprised if you hear these recordings showing up in a viral TikTok or mumble rap remix soon 6. Minnie Mouse, her first version- the Steamboat Willie cartoons also introduced Minnie, which means her original form (as it exists in the cartoon) is also in public domain. While Steamboat Willie is no longer protected by copyright law, he is still protected under trademark law. So, you probably shouldn't have him endorsing your products or services in a way that makes it seem like Disney is sponsoring you or you are connected with Disney in any way if that relationship doesn't exist. Finally, the newer versions of Mickey and Minnie, along with the Disney versions of all of Pooh Corner's inhabitants, are still protected under copyright, so steer clear of those versions of the characters. Happy creating! #publicdomain #copyrightlaw #trademarklaw #legaleducation #themoreyouknow

I’ve been settling in behind the scenes, but today we’re announcing it broadly: I’m thrilled to say I’m the new Executive Director of the Re:Create Coalition! This is my dream job, and there’s never been a more important time to defend balanced copyright and fair use. For more than a decade, Re:Create has brought together advocates for libraries, cyber civil libertarians, creators of transformative works, technologists, start-ups, champions for open knowledge, and advocates for fair competition and the open web. We are once again in a moment when technological change sends us back to the law to figure out whether and how it can continue to give us the guidance we need to use new technology to create, innovate, and prosper together, fairly. The fundamental principles of copyright law are up to this challenge, because they are (and have always been) aimed squarely at promoting the public good, not just securing a private monopoly. Fair use, first sale, the public domain, all are just as important as exclusive rights. The fight to control new technology is as old as copyright itself. The rules of engagement for that fight were set long ago by the Constitution: the copyright law must side with progress. That means a fair marketplace for creative works, and it also means a robust environment for innovation and speech. I’m excited about the work ahead for Re:Create and its members. It’s a good time to be a copyright nerd, and the world has never needed to hear the full story of copyright more than it does now. Stay tuned.