Is article 5 of the infosoc directive to be interpreted as meaning that the owner cannot oppose the acts of reproduction in relation to a lawfully obtained copy in respect of transfers between subsequent purchasers and in relation to which the right of distribution has been exhausted and, if so, what conditions would apply. However, if the ecj rules that the sale of secondhand ebooks is not a distribution within the meaning of article 4 of the infosoc directive, it is difficult to imagine that the outcome of the matter will be that the act also does not qualify it as a communication to the public, as set out in article 3. The cjeu applies nonetheless article 5 5 of the infosoc directive in concreto. This meant that the case was solely decided on whether there was a. Without an equivalent of article 51, even if the distribution right could be exhausted the necessity of producing a reproduction copy to use the downloaded ebook or audio book would be an infringement. In the landmark case of svensson and others v retriever sverige ab 2014 euecj c46612 the court of justice of the european union the cjeu in giving its preliminary judgment held that article 31 of the infosoc directive 200129 must be interpreted as meaning that the provision on a website of clickable links to works freely available. All limitations must be applied in accordance with the berne threestep test, that is in certain special cases which do not conflict with a normal exploitation of the work and which do not unreasonably prejudice the legitimate interests of the rightholder art. On 12 july 2017, the district court of the hague referred the tom kabinetcase to the court of justice of the european union cjeu, a case concerning a secondhand ebook trader. This has created a situation where user rights across europe are a patchwork. Construction of exceptions and limitations in the infosoc. However, that court deemed it unclear whether the defendant could invoke the digital exhaustion of the right of distribution in relation to its ebook business.
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 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. Ebooks distinguished from software, not exhausted journal. First, the dutch court wants to clarify whether the right of distribution under article 41 of the infosoc directive also includes the provision of e books as a download and for a temporarily unlimited use, provided this is done at a price at which the author receives remuneration equivalent to the economic value of the work belonging to him. Cjeu rules that the provision of ebooks is an act of communication to the public. Nov 25, 2016 amending the existing exception for teaching and scientific research article 53a of the infosoc directive to allow online and crossborder uses would have been better. 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. 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.
I found myself not wanting to put article 5 down for nothing. 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. The cjeu applies nonetheless article 55 of the infosoc directive in concreto. The infosoc directive please sign up for the course before starting the lesson. Does the infosoc directive envisage digital exhaustion. Article 5 1 provides that acts of reproduction do not need the consent of the rightholder if they are necessary for the use of the computer program by the legal acquirer. Also, article 52 of the berne convention, to which the eu is a party and which the infosoc directive is intended. Although the court has held that article 55 of the infosoc directive is not intended to affect the substantive content of the exceptions contained in article 51, 2 and 3 thereof, and hence cannot extend their scope, and has held that, if acts clearly fall within one of those exceptions, then they satisfy article 55, it has also held.
Case comment digital exploitation of outofprint books. Article 53e of 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, read in the light of article 55 of that directive, must be interpreted as meaning that the media, such as newspaper publishers, may not use, of. The actual question referred by the french court should be therefore read as asking whether article 2a and article 31 of the infosoc directive preclude national legislation that gives an approved collecting society the right to authorise the reproduction and communication to the public, in digital form, of outofprint books, while allowing the authors of those books or their successors in. This search form enables you to find content on the site by specifying one or more search terms. Therefore, specific contracts or licences should be promoted which, without creating imbalances, favour such establishments and the disseminative purposes they serve. Amending the existing exception for teaching and scientific research article 53a of the infosoc directive to allow online and crossborder uses would have been better. According to article 5 5 exceptions may only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subjectmatter and do not unreasonably prejudice the legitimate interests of the rightholder, therefore the directive confirms the berne threestep test. Jul 11, 2017 the ecj solves this by pointing toward the specific exception of article 5 1 of the software directive, which according to the ecj is a lex specialis to the infosoc directive. The cjeu determines scope of implicit consent of authors to. The dutch courts apply usedsoft to the resale of ebooks. Articles 5 2a and 5 2b of the infosoc directive must be interpreted as authorising the member states to introduce an undifferentiated system for recovering the fair compensation due to rightholders in the form of a lump sum and an amount for each copy made, which, implicitly but indisputably, covers in part the copying of sheet music and.
Aug 21, 2017 however, if the ecj rules that the sale of secondhand e books is not a distribution within the meaning of article 4 of the infosoc directive, it is difficult to imagine that the outcome of the matter will be that the act also does not qualify it as a communication to the public, as set out in article 3 of the directive. According to article 55 exceptions may only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subjectmatter and do not unreasonably prejudice the legitimate interests of the rightholder, therefore the directive confirms the berne threestep test. The analysis moves on to consider exceptions and limitations under the infosoc directive. Cjeu links fair compensation in articles 52a and b of. Although the wording of the german exception is very similar to the one of article 53n of the infosoc directive, it adds that the number of copies of a work made available at electronic. 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 52b of the information society directive 200129ec infosoc directive. 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 exhaustive list of exceptions contained in article 5 did. A second market for used ebooks cjeu will decide hogan. Who are the addressees of the infosoc threestep test. The cjeu determines scope of implicit consent of authors. Do the provisions, referred to above article 2 on the reproduction right and article 5 on exceptions and limitations, of directive 200129ec of 22 may 2001, preclude legislation, such as that analysed in paragraph 1 of this decision law related to the digital use of outofcommerce books of the xx th century, that.
The german court ruled that usedsoft is not applicable to ebooks, since those are not covered by the software directive. Jul 14, 2017 is article 41 of the infosoc directive to be interpreted as meaning that any form of distribution to the public of the original of their works or of copies thereof by sale or otherwise as intended there to be understood as remotely through downloading for use for an unlimited time making available for use of e books i. This court held that the provider of secondhand ebooks, tom kabinet, would not be liable for unauthorized acts of communication to the public under the dutch equivalent of article 31 of the infosoc directive. Article 6 of the directive provides protection for. The initial 2007 report examines the transposition of specific articles of the directive in light of the. The ecj added that the application of the exception for parody must strike a fair balance between, on the one hand, the interests and rights of authors, such as the intellectual property rights in their own work, and, on the other hand, the freedom of expression of the person who relies on the exception of article 5. Cjeu rules that the provision of e books is an act of communication to the public. Without an equivalent of article 5 1, even if the distribution right could be exhausted the necessity of producing a reproduction copy to use the downloaded ebook or audio book would be an infringement. Nov 18, 2016 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. See emma linklater, usedsoft and the big bang th eory. Pdf a plea for digital exhaustion in eu copyright law. Jul 30, 20 the infosoc directive, on the other hand, does not provide for such scenarios. District court refers questions on sale of secondhand e. 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.
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. Nov 30, 2016 the cjeu first decided that the french system did not constitute an exception or limitation as provided for by article 5 of the infosoc directive. However, it is unclear whether it could invoke the digital exhaustion of the right of distribution in relation to its ebook trade. 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. It left me with so many feelings, both good and bad but manly good. In 2012 the orphan works directive 201228eu ec added another mandatory exception. Cjeu links fair compensation in articles 52a and b. Ag wathelet advises cjeu to hold french law on outof.
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. The ipkat ag szpunar advises cjeu to rule that internet. Is article 41 of the infosoc directive to be interpreted as meaning that any form of distribution to the public of the original of their works or of copies thereof by sale or otherwise as intended there to be understood as remotely through downloading for use for an unlimited time making available for use of ebooks i. It concludes that the applicable national legislation takes due account of the triple test as i the digitisation of works by libraries does not lead to having the number of copies of each work available by dedicated terminals being greater than that which those. Ag wathelet advises cjeu to hold french law on outofprint. Do articles 2 and 5 of the infosoc directive preclude legislation, such as that established in articles l. The cjeu first decided that the french system did not constitute an exception or limitation as provided for by article 5 of the infosoc directive. The ecj solves this by pointing toward the specific exception of article 5 1 of the software directive, which according to the ecj is a lex specialis to the infosoc directive. Article 52e, 3b and 5 of that directive is not such as to affect that interpretation. It is calculated as a proportion of the resale price net of tax. Ecj ruling on meaning of parody intellectual property. Jul 06, 2015 although the court has held that article 5 5 of the infosoc directive is not intended to affect the substantive content of the exceptions contained in article 5 1, 2 and 3 thereof, and hence cannot extend their scope, and has held that, if acts clearly fall within one of those exceptions, then they satisfy article 5 5, it has also held. New directive on copyright and related rights in the digital. The european law blog aims to highlight, and comment on, current developments in eu case law and legislation.
At first i was a little shocked at some of the events that were happening to the article violators. Article 5 turned out to be so much different then what i thought it would be. 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. Nov 17, 2016 the actual question referred by the french court should be therefore read as asking whether article 2a and article 31 of the infosoc directive preclude national legislation that gives an approved collecting society the right to authorise the reproduction and communication to the public, in digital form, of outofprint books, while allowing the authors of those books or their successors in. Jipitec 7 2016 1 the possibility of the eu member states to adapt legislation to new circumstances and to address unforeseen issues is limited by the list of exceptions and restrictions of the infosoc directive. Article 5 2e, 3b and 5 of that directive is not such as to affect that interpretation. 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.
The cjeu needs to answer preliminary questions regarding digital exhaustion under the infosoc directive. Articles 52a and 52b of the infosoc directive must be interpreted as authorising the member states to introduce an undifferentiated system for recovering the fair compensation due to rightholders in the form of a lump sum and an amount for each copy made, which, implicitly but indisputably, covers in part the copying of sheet music and. The infosoc directive, on the other hand, does not provide for such scenarios. Sep 17, 2014 although the wording of the german exception is very similar to the one of article 53n of the infosoc directive, it adds that the number of copies of a work made available at electronic. For the ecj, the sale of secondhand e books through a website constitutes a communication to the public, in relation to which there is no exhaustion. First, the dutch court wants to clarify whether the right of distribution under article 41 of the infosoc directive also includes the provision of ebooks as a download and for a temporarily.
Vandersteen, c201 25 september 2014 by magdalena jozwiak. Remember that you can use the quick search anytime, its normally good enough, this search form is just if you want to be more specific. First, the dutch court wants to clarify whether the right of distribution under article 41 of the infosoc directive also includes the provision of e books as a download and for a temporarily. Also, article 5 2 of the berne convention, to which the eu is a party and which the infosoc directive is intended. First, the dutch court wants to clarify whether the right of distribution under article 41 of the infosoc directive also includes the provision of ebooks as a download and for a temporarily unlimited use, provided this is done at a price at which the author receives remuneration equivalent to the economic value of the work belonging to him. 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. Sep 10, 2019 this court held that the provider of secondhand e books, tom kabinet, would not be liable for unauthorized acts of communication to the public under the dutch equivalent of article 31 of the infosoc directive. Mar 29, 2018 is article 5 of the infosoc directive to be interpreted as meaning that the owner cannot oppose the acts of reproduction in relation to a lawfully obtained copy in respect of transfers between subsequent purchasers and in relation to which the right of distribution has been exhausted and, if so, what conditions would apply. For the ecj, the sale of secondhand ebooks through a website constitutes a communication to the public, in relation to which there is no exhaustion. In march 20 the german landgericht ruled that article 42 of the infosoc directive is not applicable to downloads case no 4 o 19111, landgericht german regional court bielefeld, 5 march 20. In spite of this constraint, the eu framework provides for a possibility of introduction of nonvoluntary forms of collective rights management that can help to.
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