Kluwer Copyright Blog

Study on Copyright and Scientific Publications: Encouraging Access and Re-use

Image by Mediamodifier from Pixabay

In August 2022, the European Commission’s Directorate-General for Research and Innovation published a study on EU copyright and related rights and access to and reuse of scientific publications, including open access. The study analyses the relationship between EU copyright law and access to and reuse of scientific publications, including open access, as well as potential legislative and institutional initiatives to address the limitations on access and re-use imposed by copyright. On this basis, it produces recommendations for possible legislative and non-legislative measures that could be adopted at the EU level and by research institutions. In this post, its author provides a brief outline.

The post is published under a Creative Commons Attribution 4.0 International licence (CC BY 4.0).


Background analysis

The issue of access to and re-use of scientific publication is highlighted by the dysfunctions that characterise the current scientific publishing business. Current practice in scientific publishing requires copyright assignments or the issue of exclusive licenses by researcher-authors to publishers. The result is an appropriation of copyright in scientific publications by private entities that is particularly problematic for publicly funded research. As research institutions are obliged to purchase access to proprietary scientific journals and databases from publishers to enable future research by their employee-researchers, and with subscription prices to journals having increased in the context of the so-called “serials crisis”, publishers have emerged as the “gatekeepers” to scientific literature.


Current EU copyright framework

Against this background, a robust understanding of the ways in which copyright law operates to encourage or hinder access to and re-use of scientific publications can help highlight how it can be more effectively managed by researchers and institutions, as well what legislators can do to improve the applicable legal framework.

A starting point can be found in copyright law’s rules on exceptions and limitations (E&Ls). The study focused on two relevant E&Ls in the EU’s Information Society Directive (ISD): the exception for the purpose of scientific research of Article 5(3)(a) ISD and the exception for the purpose of quotation, including criticism and review, of Article 5(3)(d) ISD.


The exception for the purpose of scientific research

According to Article 5(3)(a) ISD, EU Member States can adopt an exception, under certain conditions, for uses of protected works “for the sole purpose of illustration for teaching or scientific research”. As commentators have observed, this wording does not make clear whether “illustration” attaches only to teaching or also to scientific research. The implications are significant, as “illustration for scientific research” (aside from being rather counter-intuitive and obscure language) would exclude copying the whole or parts of articles for the purposes of individual study. This would deprive the exception of much of its usefulness over the more general quotation exception.

Moreover, like most of the E&Ls of Article 5 ISD, the research exception remains optional for the Member States. In fact, as research has established, not all Member States enjoy a research exception and those that do often limit it in various ways.



Similar problems plague the quotation exception. As Lionel Bently and Tanya Aplin have explained, the best interpretation is that the quotation exception is obligatory under the Berne Convention and enjoys a broad scope. Nevertheless, the ISD appears to treat the exception as optional, and Member States subject it to a wide variety of restrictions. The result is what Bently and Aplin have termed a “dysfunctional pluralism”.


Fundamental rights

Whether relief can be provided by the law of fundamental rights is currently unclear. The CJEU has held that EU Member States cannot rely on fundamental rights to introduce E&Ls into their legal orders that are not foreseen by the harmonised acquis. At the same time, it has also emphasised that Member States must ensure that their copyright law fully adheres to the Charter and that E&Ls “confer rights” on users. The language of “rights” is interesting given that E&Ls are limited to the re-use of copyright protected works, but do not guarantee access. With regard to scientific publications, the question that therefore emerges is how researchers’ “right” to re-use can be operationalised through the provision of access.


Non-Legislative Initiatives

To address this issue a number of what commentators have labelled “coping strategies” have emerged at both the legislative and non-legislative level. Regarding the latter, the study examines “open access mandates” – that is, requirements imposed by university-employers or by research funders requiring that the publications they fund be made available online in open access (OA).

National copyright contract rules imposing limitations on the licensing of copyright in future works may obstruct OA mandates. Such rules could potentially mean that funders and employers don’t have the right to demand licences over future scientific works, even if these are OA licences. There is no EU harmonisation in the area and how courts will react to OA mandates in this context is unpredictable. It will likely depend on whether they view funders and employers imposing OA mandates as pursuing a benevolent aim or as wielding power to wrestle copyright control from vulnerable researchers.

Should problems emerge, a solution could be provided in the – also unharmonised – rules on the first ownership of copyright of scientific publications. In most Member States, employers are considered to enjoy first ownership of copyright over works created by employees in the course of employment. However, as a general rule, either an exception applies to academic staff or universities choose not to claim ownership of their researchers’ publications.

A final consideration concerns academic freedom. There is an argument that academic freedom might invalidate OA mandates. However, while academic freedom certainly reserves for the author the freedom to decide when and where to publish scientific articles, it is hard to argue that this involves a right to publish in a journal of one’s choice – as opposed to a mere right of submission. While journals may choose to reject submissions without a copyright assignment or exclusive license, the issue is better described not as a restraint on academic freedom by OA mandates, but as a clash between that freedom and publishers’ freedom to provide a business.


Legislative Initiatives

Beyond non-legislative measures, legislative solutions may also exist. Five EU Member States (Germany, the Netherlands, Austria, France and Belgium) have sought such a solution in the so-called secondary publication right (SPR) – that is, an inalienable, non-waivable right for authors of publicly funded scientific publications to make the text freely available to the public without the permission of the copyright owner.

The obvious question in this regard is whether an SPR could be adopted at the EU level. Two main obstacles emerge. First, despite its name, the SPR may be better classified as an exception or limitation to copyright. If that is the case, it must respect the three-step test established in international and European copyright law. While it is hard to predict the outcome of the application of the three-step test to the SPR, it may be that its reliance on mandatory embargo periods would allow it to satisfy the second and most challenging step of the test. The analysis, however, involves moving parts and could shift as institutional repositories and publisher practices evolve.

The rules of private international law must also be taken into account. While current national examples make the SPR mandatory, this does not mean that it is enforceable in foreign jurisdictions. This could cause problems in cases when the publishing contract is governed by non-EU law. Authors that choose to take advantage of the SPR may, as a result, be held liable for copyright infringement outside the EU.



On the basis of its analysis, the study makes a series of recommendations. On the non-legislative level, it suggests that employer universities consider claiming copyright in their researchers’ output – although objections by employee-researchers and the need to safeguard academic freedom will need to be considered. Research funders should take care when drafting their OA mandates, paying particular attention to national copyright contract rules on future works.

On the legislative level, the study recommends the following:

clarifying the scope of the research exception and the quotation exception and making both mandatory for Member States.
harmonising copyright contract law to make clear that employers and funders are free to impose OA mandates in relation to scientific publications produced through public funding.
an EU-wide Secondary Publication Right (SPR) may be considered, but should be approached with caution. The implications of public international law and the requirements of the three-step-test should be taken seriously. It should also be understood that – as opposed to OA mandates – the SPR only provides access, but no rights to reuse and does not allow for immediate OA.
the European harmonisation of first ownership of copyright, whether generally or only in scientific publications, may provide an alternative. Such rules could grant copyright ownership in scientific publications to the scientific author or to universities. The latter option would likely prove sensitive in light of academic freedom – however, given that the general agreement that a country of origin rule should determine initial copyright ownership, it may also be the best way to avoid the problems raised by the SPR. Ideally, more nuanced systems should be considered – for example, granting universities ownership subject to an obligation to provide exclusive licences to authors to decide when and where to publish, on condition that this occurs in OA. Complications can be anticipated, for example in relation to researchers not in an employment relationship with a university or research institution or researchers who change employer. Nevertheless, this may be the best way to bring scientific publications through the copyright labyrinth into the sunlight of Open Access.

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Copyright implications of Augmented Reality for cultural goods – Part 2

Image by Tumisu from Pixabay

Part 1 of this post outlined augmented reality (AR) technology, its applications in the cultural heritage sector and its potential copyright implications. This part discusses the relevant copyright exceptions and limitations.


Exceptions enabling AR for fostering education and participation in cultural life

Currently, EU law does not contain any broad clause enabling exploitations related to the development of AR. Copyright exceptions and limitations that may have an impact on AR are contained in Art. 5 of the InfoSoc Directive, as well as in the Orphan Works and the CDSM Directives.

The InfoSoc Directive includes several clauses that may have relevance for AR development:

5(1) InfoSoc Directive, covering temporary reproductions and reproductions that last no longer than the necessary time for data processing: within an AR experience, at least two reproductions occur on the server RAM. Should it be confirmed that these copies are copyright-protected reproductions, the exception under Art. 5(1) InfoSoc Directive would apply to all copies transmitted from the server to the device embedding the photo camera and vice versa.
5(2)(c) InfoSoc Directive on specific reproductions made by libraries, educational establishments, museums or archives that are open to the public, and not made for direct or indirect economic or commercial advantage: the clause applies to works hosted by Cultural Heritage Institutions (CHIs), but also to those not hosted but reproduced by them. It concerns only specific reproductions. AR is used by CHIs to attract visitors where the main aim is to educate individuals with regard to cultural heritage. From this perspective it is likely that there is no indirect economic advantage and therefore the application of the exception cannot be excluded. As far as reproductions, storage and indexing of markers by CHIs are concerned, the exception may apply, as it does not involve the right of communication to the public.
5(3)(d) InfoSoc Directive for quotations: the clause applies to bodies that manage cultural goods and to the works of art they collect. This clause frees reproductions and communications to the public when a quotation is used for criticism, research or educational purposes, whether directly or indirectly. This easily applies to AR in the context of CHIs because the research, education or criticism purposes in such initiatives are present most of the time. The exception, however, concerns only the works reproduced from the real world. The main issue with this exception relates to the portion of a work that can be reproduced in order to be compatible with the notion of quotation, since case law in several jurisdictions, such as France, Italy and Germany often considers that the quotation exception does not apply to the entire reproduction of works of art. This may be problematic, since AR development frequently requires entire reproductions of works of visual art.
5(3)(h) InfoSoc Directive allows the reproduction and communication to the public of works created to be permanently located in public places: the extension to both rights makes it viable for any of the activities related to AR. If the reference to public is interpreted as ‘accessible to the public’ and not only ‘owned’ by a public sector body, both outdoor and indoor works – such as museums’ collections – would be covered by the exception. In any case, as long as AR content is developed on outdoor goods and works, the exception facilitates the initiative to all private operators that develop AR initiatives autonomously and independently.
5(3)(n) of the InfoSoc Directive, under which reproductions and communications to the public are authorized on terminals located within the CHI’s premises for research or private study purposes, when such acts concern works owned or permanently possessed by the CHI’s collections: this exception can be interpreted as also applying when mobile devices are used instead of terminals within the CHI’s premises. Thus, it can concern AR experiences on cultural goods permanently collected within the CHI’s premises only.

Alongside the InfoSoc Directive, Art. 6 Orphan Works Directive is of interest for AR. Such a clause exempts reproductions for the purpose of making orphan works available, and the activity of making them available for specific purposes, such as digitization, preservation, restoration, cataloguing or indexing. According to Art. 6(2), CHIs exploit orphan works to achieve aims related to their public-interest mission. This means that the exception covers the reproductions of markers in orphan works, when this is led by CHIs or at their request.

Finally, the CDSM Directive contains several clauses of interest for AR development:

Art. 3 and Art. 8 may apply for AR that is not developed for commercial purposes, thus all initiatives developed by third parties that are market operators are excluded.
More precisely, Art. 3 on data mining may facilitate reproductions and extractions of information from a digital collection on cultural heritage, in order to develop specific AR aimed at research purposes. Art. 8 on out-of-commerce works brings similar concerns to those expressed with respect to the interpretation of Art. 5(3)(n) InfoSoc Directive. Under the two regimes introduced by the exception for out-of-commerce works, authorized reproductions are of two kinds. Reproduced works can be available for non-commercial purposes, such as those displayed on a non-commercial website; or they may be unrelated to any making-available initiative, such as reproduced markers that are then stored in a database hosted on a server. Additionally, when there is no commercial purpose, they can be displayed and overlaid on a real-world object. If the rules apply to cultural goods that are out of sale, such as museum goods, it would solve part of the issue because only goods that are permanently exhibited or collected by museums would be covered by the exception. And in any case the mechanism described by Art. 8 applies to non-commercial uses only.
Alongside these two clauses, Art. 6 enables CHIs to reproduce works or other material permanently located in their collection for preservation purposes. This exception is unlikely to cover the reproduction of markers and the visualization of information on the screen during AR initiatives.



An upstream clearance of rights by CHIs and bodies that manage cultural goods is crucial for implementing AR cultural heritage applications. In the absence of these clearance procedures, often skipped because of the relatively high cost they entail, other paths have to be explored. When works used for developing AR initiatives are in the public domain, and when a body managing cultural heritage owns the existing rights in such works, rules on the re-use of public sector information (PSI) can apply and therefore facilitate the development of initiatives based upon the reproduction and making available of works embedded in cultural goods. Alongside this, exceptions and limitations play a particular role in AR development. More precisely, some of the current exceptions of the EU copyright framework may enable AR-related reproductions, in particular when they are stored and indexed in a cloud database. However, when the reproductions of copyrighted works are made available via AR on a permanent basis, existing exceptions and limitations may not be enough to enable such important initiatives. When neither PSI rules nor copyright exceptions can apply, individually or collectively licensing through collecting societies seem to be the only tool left for developing AR initiatives in compliance with copyright rules.


This blogpost is an elaboration of the article Sappa, Participating in cultural life via augmented reality on cultural goods: what role for copyright?, published in Grur. Int. 2022, 618ff..

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Copyright implications of Augmented Reality for cultural goods – Part 1

Image by Tumisu from Pixabay

Augmented Reality (AR) is a fast-evolving technology enabling the overlap of digital images with those from the real world. It makes use of several technological developments and in particular computing devices with wireless connectivity that let the user connect to the Internet and other devices in different places. Part 1 of this post outlines the technology, its applications in the cultural heritage sector and the potential copyright implications. Part 2 discusses the relevant copyright exceptions and limitations that interfere with the development of AR experiences.


Technical aspects of augmented reality

While creating AR experiences, so-called markers provide information on the real-world element of reference to be overlapped with digital images. Markers are visual cues triggering the display of the virtual information; they are real-world objects or part of them. A device embedding a sensor serves as a connection between the real-life object on which information is to be overlaid, and a cloud providing such information to overlay on the real-life object. When it is put in front of a marker, the sensor in the device sends a signal to the cloud. The cloud hosts databases. If the information sent from the device to the cloud matches with what is contained in its database, then the cloud-based software provides an input to the device-embedded sensor. The latter synthesizes the information next to the real-life object using location tracking abilities. The information transfer is realized to a large extent via multiple data reproductions and, when information is synthetized and overlaid on the tangible object, via data communication too.

Because the technology is complex, an example can help with understanding these technical aspects. In the project L’Ara com’era, the initial colors and decorations on the Ara Pacis can be seen thanks to an AR experience. Parts of the Ara Pacis, currently in white stone, serve as markers. They are reproduced and stored in a cloud-based database. Goggles made available by the museum premises embed a sensor that recognizes when the person wearing them is in front of the markers, i.e. the part of the Ara Pacis reproduced and stored in the cloud-based database. When the said sensor recognizes it is in front of the Ara Pacis, it gives the order to copy the colored reproductions of some parts of the Ara Pacis, stored in a cloud-based database, and display them on the screen of the goggles. This means that when in front of the Ara Pacis markers, the goggles will show images overlaid on the ancient masterpiece.


AR and cultural heritage

AR technology can have a wide range of uses, including in the tangible cultural heritage sector. Concretely, AR can be used on archeological sites, monuments or cultural heritage institutions (CHIs), such as museums, libraries and archives.

When AR is used in the cultural heritage sector, it plays an important role in satisfying both economic and educational interests of different stakeholders. It can be used to provide additional information about goods that may embed works of art protected by copyright. This provides the advantage of making the encounter between visitors and the art in museums or sites more lively, complete and informative. Thus, AR can be considered as a tool for boosting cultural heritage exploitation, helping achieve the educational mission of bodies governing cultural heritage, as well as enabling better participation in cultural life. As a result, AR may be attractive not only to potential users of the cultural heritage-related services, but also for market operators with commercial interests. At the same time, AR may be a catalyst for boosting the ecosystem surrounding bodies managing cultural heritage, because an attractive cultural site with entertainment features can definitely have an impact on the local tourism-related industry.

Consequently, it is not surprising that major museums and cultural heritage sites are already using AR, and thus have directly exploited or enabled the exploitation of their works for this purpose. As examples, it is possible to quote the project on Ara Pacis, the archeological parc of Tremona and the TATE Gallery.

However, as mentioned, AR can also be developed by third parties, and in particular by market operators that have no initial connection with bodies managing cultural heritage. In such cases, a request for authorization to exploit cultural goods or collections, or at least part of them, is needed. This authorization may be grounded on property, contracts, cultural heritage rules or on copyright.


Copyright implications of AR in the cultural heritage sector

The creation of AR experiences may involve acts of reproduction and communication to the public that have potential copyright implications.

AR can concern two categories of cultural goods – those that are in the public domain and those embedding a copyrighted work of art.


(i) Public domain works

The first group comprises goods that do not embed any works of art, such as items collected by science museums, and those that do embed works of art, but are too ancient to enjoy copyright protection. These cultural goods may be reproduced as markers and stored in the cloud-hosted database which is connected to the device embedding the sensor. The unprotected works can be overlaid by images displayed on the screen of the mobile device embedding the sensor. These displayed images may reproduce the real-world goods in a processed way, or may add to the latter complementary information, such as metadata, other images or motion pictures. The lack of copyright protection reduces, but does not eliminate legal issues entirely. For instance, moral rights may be at stake, as well as alternative forms of protection that may limit the availability of works, such as cultural heritage-related rules or contractual provisions. Faithful reproductions of cultural goods are also crucial tools for developing AR applications, in particular when access to real-world cultural goods is limited or non-viable. Art. 14 of the CDSM Directive which applies to reproductions of works of visual art in the public domain was introduced with a view to preventing the re-locking of what is already in the public domain and therefore may be of some help for facilitating the development of AR from digital reproductions (on this topic, see here).


(ii) Copyright protected works

AR content is often developed around cultural goods that embed works of art. This is certainly the case for monuments or manuscripts. This implies that copyright may protect the work incorporated by the tangible cultural good. This happens in particular in contemporary art collections. When copyright is involved, both economic and moral rights issues are at stake.

As to economic rights, copyright implies an authorization for activities of reproduction, communication to the public, distribution and creation of derivative works (adaptation). In order to develop AR initiatives, access to cultural goods or to their reproductions or to sufficient related data is mandatory to enable the exploitation via reproduction, communication to the public and adaptation. Copyright rules do not impede access. So, ‘entering’ the premises where the cultural good is exhibited for the purpose of reproduction cannot be controlled via copyright. However, access can be controlled through other legal forms of protection, such as contractual provisions or property rights. In contrast, copyright may affect the access to digital copies of real world works of art, in particular when the copies are creative or when works reproduced in these copies are still under protection. Copyright entitles the owner to impose legally protected technological protection measures (TPMs) on these images. Alongside copyright, limits to the availability of reproductions may be due to the neighboring rights existing on non-creative photographs, critical editions or editio princeps.

Copyright implies exclusive prerogatives. Thus, ownership of such rights is crucial for exploitation purposes. As a consequence, the main issue related to the exploitation of cultural goods embedding protected works of art is rights clearance. Movable cultural goods and works of art circulate quite widely, but the rights on the works of art do not necessarily transfer or move from their rights owners to the bodies that manage the cultural goods themselves. This discrepancy leads to a situation where the owner of the tangible cultural good often does not own the rights to the intangible embedded with it. Identifying the ownership of rights to reproductions – if any – and their collections may be particularly challenging.

AR initiatives on cultural goods imply the exploitation of (copyrighted) works through their reproduction and making available to the public. Within a framework where rights clearance and subsequent use may involve high transaction costs, it may be questioned whether exceptions to copyright are compatible with AR initiatives and are therefore suitable tools for enhancing the human rights to education and participation in cultural life.

Part 2 of this post will explore the potential relevance of copyright exceptions.


This blogpost is an elaboration of the article Sappa, Participating in cultural life via augmented reality on cultural goods: what role for copyright?, published in Grur. Int. 2022, 618ff..

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Comparative Report on the National Implementations of Articles 15 & 17 of the Directive on Copyright in the Digital Single Market – Part 2

Image by Clker-Free-Vector-Images from Pixabay

In 2019, the EU’s Copyright in the Digital Single Market Directive (CDSMD) was adopted. This included the highly controversial Articles 15 and 17 on, respectively, the new press publishers’ right (PPR) and the new copyright liability scheme for OCSSPs (“online content-sharing services providers”). In a report published in September 2022, I undertook research into the national implementations of these two provisions in 11 Member States: Austria, Denmark, Estonia, France, Germany, Hungary, Ireland, Italy, Malta, the Netherlands and Spain. Based on information gathered through a questionnaire distributed to national experts from each examined Member State, the report assesses the compliance of the national implementations with the internal market objective of the Directive and the EU’s law of fundamental rights. The report was commissioned by C4C, but written in complete academic independence.

This is Part 2 of a two-part contribution highlighting the report’s most significant findings. While Part 1 focused on Article 15 CDSMD, Part 2 considers Article 17 CDSMD. The report’s findings as regards Article 17 CDSMD were presented at the first session (“Fragmentation or Harmonisation? The impact of the Judgement on National Implementations”) of the Filtered Futures conference co-organised by COMMUNIA and Gesellschaft für Freiheitsrechte on 19 September 2022.

The post is published under a Creative Commons Attribution 4.0 International licence (CC BY 4.0).


Subject matter and right-holders

As opposed to Article 15 CDSMD, Article 17 CDSMD does not introduce a new related right to EU copyright law. Instead, it expands the protections already afforded by copyright and related rights law. To this end, Article 17(1) links to Article 3(1) and (2) of the Information Society Directive (ISD). While Article 3(1) ISD covers copyright, Article 3(2) ISD lists four related rights: those of performers, phonogram producers, film producers and broadcasting organisations.

Based on the national reports, from among the 11 examined Member States, only two (Malta and the Netherlands) appear to have restricted protection to these four related rights. Denmark explicitly extends protection to producers of photographic pictures and producers of catalogues – i.e., related rights owners not mentioned in Article 3(2) ISD. Other Member States eschew a closed enumeration in favour of a general reference to related rights – implying that all related rights recognised in their national law are covered. To the extent that such rights fall outside of the EU acquis such gold-plating is arguably unproblematic. However, where harmonised related rights – such as the new PPR – are affected, implementations start slipping out of compliance.

France presents an added twist, given the absence in the French transposition of Article 15 CDSMD of an exception for private or non-commercial uses by individual users, as the Directive requires (see Part 1). The logical conclusion is that in France OCSSPs may be liable for non-commercial public sharing of press publications by end-users on their platforms – contrary to Article 15’s intended focus on own use by providers such as news aggregators and media monitoring services (see Recital 54 CDSMD).


Exclusive rights

Further issues arise with regard to the implicated exclusive rights. The Irish implementation of Article 17 is particularly perplexing in this regard: as the Irish national expert (Giuseppe Mazziotti) explains, while the transposition’s language is ambiguous and hard to decipher, the Irish implementation appears to require that OCSSPs also obtain authorisation from the owners not only of the right of communication to the public and of the making available right (as the CDSMD requires), but also of the reproduction right. Adding to the confusion, the immunity of Article 17(4) is transposed correctly, so that it is restricted to acts of communication to the public.

A number of possible interpretations exist. One option would be that absent authorisation from the holders of the reproduction right, OCSSPs are liable for communication to the public unless the immunity applies – though this would make little sense. An equally disconcerting possibility would be that there is no way out of a liability for unauthorised acts of reproduction that has no foundation in the Directive. Of course, it is also possible that the reference to the reproduction right is just a transposition glitch that should be ignored, in line with the Marleasing principle. This interpretation would be the most likely – were it not for the fact that it is very hard to say that OCSSPs (whose very definition in Article 2(6) CDSMD describes them as “storing” content) perform acts of communication to the public without also (at least temporarily) copying the relevant works: the absence of any reference to the reproduction right in Article 17 makes little sense. The omission has been belatedly recognised by the European Commission in its Guidance on Article 17, according to which the

“acts of communication to the public and making content available in Article 17(1) should be understood as also covering reproductions necessary to carry out these acts”.

The Guidance notes that Member States should not provide for an obligation on OCSSPs to obtain an authorisation for reproductions carried out in the context of Article 17. However, the Guidance is non-binding and, moreover – from a certain perspective – just confirms that acts of reproduction are inherent to acts of communication or making available to the public.


Authorized uploads by end-users

Interestingly, France has ignored the suggestion in Recital 69 of the Directive that authorisations granted to users to upload protected subject matter extend to OCSSPs. As Valerie-Laure Benabou, the French national expert, points out, the key issue here is whether OCSSPs are participating in a single act of communication to the public or making available to the public performed by the end-user or whether there are two independent acts, one performed by the user and the other by the intermediary.

Given that the Directive establishes primary and not accessory liability for OCSSPs, there is a strong argument that there are two acts of communication to the public. Of course, this seems counter-factual, as clearly only one material act occurs – the upload by the user onto the OCSSP’s platform. But that is a problem embedded in the entire solution adopted by Article 17, which holds OCSSPs liable for those uploads as primary infringers. Moreover, while recitals do have interpretative value, they do not have binding legal force and therefore cannot be used to counteract the operative part of a directive. As a result, clarity on this issue can only come with CJEU intervention.


Interaction with other types of liability

Another headscratcher is provided by the Spanish implementation. This contains a provision according to which, as has already been reported on this blog by the Spanish national expert, Miquel Peguera, even when OCSSPs abide by the conditions of Article 17(4), right holders will be still able to rely on other causes of action for compensation, such as unjust enrichment.

How to assess this is not obvious. One view is that the provision digs a hole under the entire concept of immunity. The result, therefore, is an interference with the “occupied field” of the Directive in a way that erodes its useful purpose: the same claimant would be granted the same protection against the same OCSSP for the same behaviour for which the directive provides immunity.

As persuasive as this interpretation is, there is also a different perspective from which the provision is unproblematic. It is important to consider the difference between Article 17 and the hosting safe harbour Article 6 of the Digital Services Act (DSA) (previously Article 14 of the E-Commerce Directive): the wording of the latter clearly indicates its purpose to ensure that the relevant providers are, in a harmonised way, not held liable across the EU under certain conditions. By contrast, Article 17 arguably has the opposite objective: to ensure that OCSSPs are, in a harmonised way, held liable across the EU under certain conditions. If that is the case, then it could be said that the Spanish provision avoids interference with Article 17’s useful purpose.

Of course, even if that is so, it is highly unlikely that any OCSSP that meets the conditions of Article 17(4) would fail to meet the conditions set by any other national rule of law. The hosting safe harbour will provide additional refuge. While the issue is therefore likely a storm in a teacup, the theoretical question is an interesting one: does Article 17 exhaust the liability of OCSSPs for infringing copyright/related rights over uploaded content – does it provide total harmonisation of OCSSP liability for copyright-infringing content uploaded by their users or only total harmonisation of OCSSP liability for communication to the public?


Filtering and general monitoring obligations

Perhaps the most interesting question that arose from the study concerns the different national approaches to the implementation of Article 17(4) CDSMD. The issue was brought before the CJEU by Poland in an action for the annulment alleging that Article 17(4) makes it necessary for OCSSPs to adopt filtering technology to the detriment of end-users’ freedom of expression. In its decision, the CJEU accepted that the prior review obligations imposed by Article 17(4) on OCSSPs do require the use of filtering tools, but concluded that the resultant limitation on freedom of expression is acceptable because of the safeguards embedded in sub-paragraphs 7, 8 and 9. The Court refrained, however, from a detailed explanation on how these safeguards should operate in practice.

Among the examined Member States, Germany and Austria have taken a proactive elaborative interpretation geared at establishing how these safeguards can be put into practice. This approach has been described as a “balanced” one, as opposed to the more “traditional” one taken by those countries that adopted a copy-out transposition.

The question that arises is whether this “balanced” approach is compatible with the directive. As others have suggested, there is a strong argument that – to the extent that Article 17 does not explain how its various sub-paragraphs are intended to interact or how it’s intended to navigate freedom of expression – such elaboration might be necessary. As mentioned in Part 1, to be copiable in national law, it is necessary that a directive be internally consistent and well formulated. When provisions are in need of legislative repair or clarification, literal transposition should be dismissed. It can be said that Article 17 is precisely such a provision – as the analysis above reveals, it is not a well-drafted piece of legislation: it raises many questions, its wording is complex and confusing, and its purpose and scope are ambiguous.

That said, following the decision of the CJEU in Poland it is hard to hold that those Member States that have taken a copy-out approach to transposition were wrong to do so. Instead, the answer can be found in the final paragraph of Poland. This emphasises both that Member States themselves must transpose Article 17 in such a way as to allow a fair balance and that, “the authorities and courts of the Member States” must interpret their transpositions so as to respect fundamental rights. In this way, the Court has enabled the compatibility with the Directive and the Charter of both the “balanced” and “traditional” implementation approaches: with the first the legislator takes on the task of identifying the appropriate “fair balance” itself, via the process of transposition. With the second, the details on the right balance are delegated to judicial interpretation. The first approach may be preferable from a policy perspective – but both are open to the Member States.



Examination of the national implementations of Articles 15 and 17 reveals a number of potential incompatibilities. While some of these can perhaps be attributed to national intransigence or misplaced inspiration despite clear EU requirements (for example, the French failure to protect private or non-commercial uses of press publications by individual users is hard to explain otherwise), very often the root cause can be found in bad drafting by the EU legislator. The contentious subject matter and intricate structures of these articles, as well as their heavy reliance on undefined terminology and the occasional misalignment between the recitals and operative texts, are not designed to facilitate smooth national implementation and homogenous interpretation and application. As the European Commission has acknowledged, “[b]etter law-making helps better application and implementation”. In the intense discussions on Articles 15 and 17 in the run-up to the adoption of the CDSMD, this principle appears to have fallen by the wayside. To address the consequences, the CJEU will no doubt have much CDSMD-focused work ahead of it. Hopefully, future judgments will be clearer than Poland.

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Comparative Report on the National Implementations of Articles 15 & 17 of the Directive on Copyright in the Digital Single Market – Part 1

Image by Clker-Free-Vector-Images from Pixabay

In 2019, the EU’s Copyright in the Digital Single Market Directive (CDSMD) was adopted. This included the highly controversial Articles 15 and 17 on, respectively, the new press publishers’ right (PPR) and the new copyright liability scheme for “online content-sharing services providers” (OCSSPs). In a report published in September 2022, I undertook research into the national implementations of these two provisions in 11 Member States: Austria, Denmark, Estonia, France, Germany, Hungary, Ireland, Italy, Malta, the Netherlands and Spain. Based on information gathered through a questionnaire distributed to national experts from each examined Member State, the report assesses the compliance of the national implementations with the internal market objective of the Directive and the EU’s law of fundamental rights. The report was commissioned by C4C, but written in complete academic independence.

This is Part 1 of a two-part contribution highlighting the report’s most significant findings. After a brief word on the transposition options available to the Member States, it will focus on Article 15 CDSMD. Part 2 will then consider Article 17 CDSMD, before offering some concluding remarks.

The post is published under a Creative Commons Attribution 4.0 International licence (CC BY 4.0).


Transposition framework: Member States’ “room for manoeuvre”

According to Article 288 of the TFEU, directives are binding on Member States only as to the result to be achieved – the choice of form and methods is left to implementing national legislators. While “form” is less interesting for the purposes of this analysis, with regard to methods, Member States are presented with two important choices:

a) between literal (“copy-out”) transposition and an “elaboration” on the rules set out in the directive;


b) between minimalist transposition and non-minimalist transposition (sometimes also called “gold-plating”). Minimalist transposition incorporates only to the minimum requirements of the directive, while non-minimalist transposition expands the reach of the relevant rules or adds further rules.


Depending on the circumstances, all these approaches can be acceptable, although they will not all always be available. Other things being equal, it is generally agreed that copy-out transpositions are preferable to elaboration, as they minimise the possibility of incorrect paraphrasing. However, not all directives are copiable – among other conditions, a directive has to be of sufficient legal quality for copy-out transposition to be appropriate.

Similarly, in recent years gold-plating has acquired a bad reputation as imposing unnecessary costs on business and public authorities. The European Commission has repeatedly urged Member States to avoid it. That said, gold-plating is not always incompatible with EU law and commentators have questioned the usefulness of this business-centric concept in discussions on policy-making and academic analyses. In many cases, Member States remain free to make their own law – this often being a deliberate choice of the EU legislator, particularly where political compromise is necessary. Moreover, it is not always easy to determine whether a national implementation is more or less burdensome than a directive.


Article 15 CDSMD: the new press publishers’ right (PPR)

Although the transposition method applied by a national legislator will play a crucial role, compatibility or incompatibility with EU law will primarily depend on the content of the adopted national rules. With regard to Article 15 CDSMD, the analysis of national implementations revealed a number of incompatibilities or otherwise interesting discrepancies. Below, a selection of the most relevant are discussed.


The PPR’s subject matter exclusions

Article 15 CDSMD grants press publishers rights over their publications while eschewing – much to the consternation of commentators – any threshold condition for protection. Instead, the provision relies on a collection of exclusions. These have been met with various treatment in the Member States.


“Individual Words or Very Short Extracts”

According to Article 15(1), the PPR does not apply to “individual words or very short extracts of a press publication”. While “individual words” seems clear, “very short extracts” is more ambiguous. The Directive offers little interpretative guidance.

Most of the examined Member States have taken a copy-out approach to the exclusion. France and Italy opted for elaboration. The French transposition clarifies that a “very short” extract must not be capable of replacing the press publication itself or exempting readers from referring to it. Likewise, the Italian implementation defines “very short extracts” as extracts that do not exempt users from the need to consult the entire article. As has already been argued on this blog, these requirements raise serious concerns. Disconcertingly, a report of the French National Assembly has put forward the idea that even snippets or titles may be protected, if they provide enough information to satisfy readers’ informational needs. Such an interpretation would mean that only non-informationally relevant content would escape the PPR. This would restrict targeted providers from providing readers with sufficient information to navigate online news content, with detrimental effects for freedom of information and the media online. In her report, the French national expert (Valérie-Laure Benabou) notes that the quotation exception may provide some relief – but this is conditional and has been restrictively interpreted in France.

According to the national experts, no Member State has opted for a purely quantitative definition based on the number of, e.g., characters or words copied. While this may make algorithmic enforcement harder, focusing on the content of the extract copied and the necessity of its use by the targeted providers provides better guarantees in terms of fundamental rights.


“Mere facts”

According to Recital 57, the rights of press publishers should not extend to “mere facts reported in press publications”. As this is not repeated in the text of Article 15, it is unsurprising that it is also absent from most national implementations – with the exceptions only of Germany and Malta. The logical conclusion is that, in the remaining Member States, mere facts are caught by the PPR. Assistance may be provided by general copyright principles that exclude mere facts from protection. However, attention is necessary: the PPR is a related right and its subject matter does not need to qualify as (a part of) a “work”. From this perspective, it could be argued that it is those Member States that exclude mere facts from the reach of the PPR that run the risk of incorrect implementation. That said, the disproportionate adverse effect this would entail for users’ freedom of expression cannot be ignored. Instead, in Member States that do not explicitly implement the exclusion, it ought to be read into the national transposition to ensure a fair balance of fundamental rights.


Public domain material

Along similar lines, the restriction of Article 15(2), according to which the PPR cannot be invoked to control the use of works or other subject matter for which protection has expired, is absent from the Danish, Estonian, French and Hungarian transpositions.

The Estonian national expert (Karmen Turk) notes the Estonian Explanatory Memorandum’s suggestion that the terms of protection specified elsewhere in the law for copyright and related rights mean that there is no need for additional protection for such content. This statement is indicative of the lack of understanding regarding the effects of the PPR that has accompanied it since it was first proposed.

It is also worth noting that, to the extent that the restriction makes reference to “subject matter for which protection has expired” and the PPR is a right that provides protection to subject matter, its wording is circular and accordingly unclear.


Press publishers: the owners of the PPR

Article 15 affords protection to publishers of press publications but does not define them. The French and Spanish implementations explicitly extend to news agencies. While the former requires that news agencies “publish” press publications to enjoy protection, in its decisions against Google, the French Competition Authority has concluded that press agencies can benefit when the content they produce is published by somebody else. Recital 55 explains that the right should cover “service providers, such as news publishers or news agencies, when they publish press publications”. This suggests that involvement in the act of publication is necessary – but of course, one would expect a publisher to publish. The question, therefore, is what qualifies as publication. It seems that CJEU guidance will be necessary for a homogenous interpretation of this autonomous notion of EU law.


Acts restricted by the PPR

Article 15(1) grants press publishers the reproduction and making available rights over online uses of their publications. France replaces “online uses” with uses “in digital format”, broadening the right’s scope. Italy extends protections beyond “making available to the public” to “communication to the public”. In other cases, problems arise from broader national definitions of the relevant rights compared to the equivalent EU terms. The result could be national implementations that extend to online radio or streaming services.


Targeted users

While copyright and related rights apply erga omnes, the PPR is targeted only at uses by information society service providers (ISSPs). Article 15 further stipulates that the PPR does not apply to private or non-commercial uses of press publications by individual users.

Particularly problematic in this regard is the French implementation, which omits the guarantee in favour of private or non-commercial uses by individuals. According to the French national expert, France considers that the same effect is achieved through its private copying exception – yet is not clear that the conditions of the two provisions match, as the private copying exception applies only to the reproduction right, requires fair compensation and is limited to private uses. This means that e.g., non-commercial bloggers (who could qualify as ISSPs under Article 2(5) CDSMD) are left unprotected in France.


Licensing the PPR

While the Directive does not include any provisions specific to licensing the PPR, a number of national implementations have ventured into this area. Among these, the Italian national implementation has attracted considerable criticism for instituting a complicated licensing system under which decisions on the fair compensation due to press publishers may be made by the Italian Communications Authority AGCOM. Commentators have expressed concern that this would amount to a court mandated duty to contract. As the Italian national expert (Caterina Sganga) observes, the Italian implementation could be seen as transforming exclusive rights into remuneration rights, something arguably frowned upon by previous CJEU case law.


Authors of incorporated works: revenue sharing

Article 15(5) establishes that authors of works incorporated in press publications must receive an “appropriate share” of the revenues collected by press publishers for the use of their press publications by ISSPs. A number of countries have transposed these provisions without elaboration, but others have introduced guidance. Italy sets the authors’ share at between 2% and 5% of the “fair compensation” owners receive, while the German equivalent is one third of the income generated. The disparity represents a striking fragmentation of the Single Digital Market. Although notion of an “appropriate share” should be viewed as an autonomous notion of EU law, without CJEU guidance it is hard to determine which approach hits closer to the mark.


Part 2 of this analysis will proceed with examining the national implementations of Article 17 CDSMD.

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CDSM: French transposition Order annulled to the extent that it does not provide for ‘appropriate’ remuneration for authors

The Conseil d’Etat, the French administrative Supreme Court, handed down an important ruling on 15 November 2022 which annuls Order no. 2021-580 of 12 May 2021 (‘2021 Order’) of the French Government that implements articles 2(6) and 17 to 23 of the EU Directive 2019/790 on copyright and related rights in the Digital Single Market (‘CDSM’), to the extent that the 2021 Order does not provide that authors who assign their exclusive rights are entitled to receive ‘appropriate’ remuneration.

Some consider that the Government was influenced by the French union of book publishers Syndicat National de l’Edition – SNE when it decided to leave out the term ‘appropriate’ when transposing the principle of ‘appropriate and proportionate remuneration’ of articles 18 and 20 of the CDSM.

The case was filed on 12 July 2021 by two French unions in charge of defending the interests of authors (Comité pluridisciplinaire des artistes-auteurs et des artistes-autrices (CAAP) and Ligue des auteurs professionnels), claiming that the Government had exceeded its powers (‘recours pour excès de pouvoir’), in particular for not providing that authors are entitled to ‘appropriate’ remuneration.


The principle of appropriate and proportionate remuneration of articles 18 and 20 of the CDSM

Article 18 of the CDSM provides that where authors license or transfer their exclusive rights for the exploitation of their works, they are ‘entitled to receive appropriate and proportionate remuneration’.

Article 20 provides for a mechanism to adjust the financial situation if the exploitation of the work ultimately shows that the initial contract is not fair for the author. Indeed, the Member States must ensure that authors are ‘entitled to claim additional, appropriate and fair remuneration from the party with whom they entered into a contract for the exploitation of their rights, or from the successors in title of such party, when the remuneration originally agreed turns out to be disproportionately low compared to all the subsequent relevant revenues derived from the exploitation of the works’.

Remuneration of authors under French copyright law before the 2021 Order

There are two possible forms of remuneration under French copyright law: royalties based on the revenues deriving from the exploitation of the work, and, as an exception to this rule, fixed royalties in the form of a lump sum.

1) Article L131-4 paragraph 1 of the French Intellectual Property Code (‘IPC’) states the general applicable rule: the assignment by an author ‘shall comprise a proportional participation by the author in the revenue from sale or exploitation of the work.’

There are almost no judgments that state what percentage would be too low. In a judgment of 16 May 1969, the High Court of First Instance of Paris ruled that 2.5% is not sufficient and therefore is in breach of the law, and in a judgment of 30 November 1999, the same court ruled that a clause providing for 0% for the first 1,000 copies sold, 7% for the next 2,000 copies and 10% beyond 3,000 copies sold, was null. In France, the percentage will often be between 5% and 10%, with the main basis of calculation – the retail price – being very broad; the royalty rate and basis of calculation will of course depend on the sector (music, TV, cinema, etc.) and certain specific rules.

Interestingly, in the present case, the applicants’ lawyer pleaded before the Conseil d’Etat that ‘0.5% royalties is proportional. But can we consider that the resulting sum is appropriate in view of the work carried out?’ (Here). Indeed, proportional royalties are not necessarily appropriate …

2) There are exceptions to that general rule: article L131-4 paragraph 2 IPC states that the author’s remuneration may be calculated as a lump sum in the following cases:

1° There is no practical way to determine the basis for calculating the proportional remuneration;

2° There are no means to supervise the proportional remuneration;

3° The cost involved in the calculation and supervising of operations would not justify the anticipated results;

4° The nature or condition of exploitation makes the application of the rule of proportional remuneration impossible, either because the author’s contribution does not constitute one of the essential elements of the intellectual creation of the work or because the use of the work is only of an accessory nature in relation to the subject matter exploited; […]

If the exploitation of the work is financially more successful than envisaged, Article L.131-5 IPC allows the author to claim for the initial lump sum to be revised in the following circumstances:

If the exploitation right has been assigned and the author suffers a prejudice of more than seven-twelfths as a result of an unfair contract or of an insufficient estimate of the proceeds from the work, he may demand a revision of the price conditions under the contract.

Such demand may only be made where the work has been assigned against a lump sum remuneration.

The damage suffered by the author shall be assessed taking into account the overall exploitation by the assignee of the works of the author who claims to have suffered prejudice.

It is possible to assess the damage suffered by the author under the unfair contract by reference to the practices of the sector (Court of Appeal of Paris, 15 May 1987).


The implementation of the CDSM into French law

The French implementation of articles 18 to 23 of the CDSM did not substantially change the provisions stated above:

Article L131-4 paragraph IPC remains unchanged and still refers to a proportional participation, and not to an ‘appropriate’ participation,
Article L131-5 IPC is now – practically unchanged – in article L131-5-I.

The 2021 Order implemented article 20 of the CDSM in article L131-5-II to IV, with article L131-5-II providing: ‘The author is entitled to additional remuneration when the proportional remuneration initially provided for in the exploitation contract turns out to be excessively low in relation to all the income subsequently derived from exploitation by the transferee. In order to assess the situation of the author, his contribution may be taken into account.’


The Conseil d’Etat’s judgment

The Conseil d’Etat found that even though the 2021 Order provided that authors are entitled to claim revision of the initial fixed lump sum and claim additional remuneration when the proportional royalties are too low, it ‘did not provide, contrary to what is required by the directive, that the remuneration be, from the start, “appropriate” (§14) (underlined by the author), i.e. directly in the assignment agreements entered into by the authors. The administrative court more generally found that the 2021 Order did not correctly implement the CDSM as it ‘does not provide that the authors […] have the right to receive appropriate remuneration’ (§15). The Conseil d’Etat therefore annulled the 2021 Order to the extent that it does not provide that authors assigning their exclusive rights for the exploitation of their works have the right to receive appropriate remuneration.

In its decision, the Conseil d’Etat does not explain how the CDSM should be implemented, but it does appear that the CDSM requires that the national law will have to provide that authors are entitled to receive appropriate and proportionate remuneration, not only under the initial licence or assignment agreement, but also in the adjustment mechanisms.

To be continued…

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Born to be authors: the copyright of the child

Image by bethL via Pixabay

Children provide a unique contribution to the discourse on creativity, copyright and intellectual property. From their ability to engage with colours and sounds as babies to the rich and extensive portfolio of works they create during their school years, children are constantly engaging in the process of authorship. A systematic study on the copyright of children is yet to be attempted. This is not to say that legal analysis has neglected this area completely though. More frequently, the commentary addresses copyright or intellectual property protected commodities created for the child – rather than by the child – for the purpose of entertainment, learning or as practical everyday objects (J Bellido & K Bowrey, 2022).  The prospective research project as described in the piece below was presented at the Society of Legal Scholars 2022 Annual Conference.


The work by the child: acknowledgements and safeguards

Many readers may relate to a situation where children run to their parents or carers, showing their latest masterpiece with immense pride, and ask: “Do you like it?”. Invariably and without hesitation, the adult will answer “Amazing!”, “Wow!”, “Fantastic!” With this expression of appreciation for the creativity of the child, the adult acknowledges the creative choices of the child as an author (C-145/10Painer) and implicitly recognises that the core criterion is met for copyright protection according to the EU copyright acquis, which rejects any requirement of artistic merit (P B Hugenholtz & J P Quintais, 2021, p.1197 and C‑683/17Cofemel).

In that same role, any adult caring for a child is called to act as steward of that property – the intellectual property of the young author. The notion of stewardship (H R Howe, ‘Copyright limitations and the stewardship model of property’ (2011) 2 IPQ 183-214) is instrumental to expanding the scope of the analysis on vulnerable authors (e.g. with orphan works, see U Suthersanen & M M Frabboni, 2021) and other non-mainstream, non-institutionalised forms of creativity (E Bonadio & N Lucchi, 2018; J Gibson, 2019). At a time when critical questions are being raised about the legal recognition of creativity by sentient machines, the advancement of a discussion on authorship by young human beings is aimed at recognising how primordial, natural and immediate creativity is when expressed by the child.

A key goal of the analysis is the reconciliation of the structure and legal tests applied in copyright law with the way authorial creativity develops as a process. A copyright lawyer will be familiar with legal issues on subject matter, originality, authorship and ownership. Unintentionally, a parent or carer will often ask a child questions relevant to these issues, such as: “What is it?”; “What does it do?”; “Did you do it all by yourself?”. The child will not necessarily engage with the formalism of these questions. The child, as the ultimate author, will just create. This will be addressed in the three questions considered below.


Creativity in the early years

The analysis of authorship in the early years provides the opportunity to appreciate creativity in its elemental manifestations. The early years may be said to involve the learning and development of a child from birth to five years old (e.g. UK Government National Curriculum). The paradigms formulated by leading educators such as Montessori and Steiner are instrumental to the understanding of the meaning of creativity and learning during specific periods or stages of a child’s growth and development (P van Alphen, 2011; D J Fleming, B T Culclasure, and D Zhang, 2019). As Dr Maria Montessori explains: “[I]t is a delight to watch with what enthusiasm the child works when he is given freedom, and when he finds to hand suitable objects with which to satisfy his desire for activity” (‘An Environment for the Child’, 1931). The study of young children’s creativity and their concurrent ignorance of cultural and societal paradigms provides access to the least imitative, most ingenious, spontaneous and original forms of creative expression.


Copyright paradigms and creative practices

The underlying hypothesis for the analysis of children’s authorship is that many adults and lawyers ask the wrong questions on subject matter, originality, authorship and ownership in an attempt to translate into ‘grown-up’ legal terms the very special process of creativity by the child.


What is it?

This question resonates with copyright lawyers as it focuses on the statutory or non- statutory definitions of subject matter, according to both the common law and civil law approaches. From a European perspective, as the acquis shaped an autonomous concept of a copyright work (C‑683/17, Cofemel), the ‘what is it?’ question remains crucial. There are difficulties in evaluating whether a pile of toys left on a rug in the living room by siblings preparatory to play-time projects after a day at school is a work of art (Lucasfilm Ltd & Ors v Ainsworth & Anor [2008] EWHC 1878 (Ch)). The truth may be that – as they left for school – they had not planned what that pile of toys was going to be; or maybe they had decided that the pile of toys was going to be the finished masterpiece. It is possible that the adult will never know because the adult was not part of that special process of ingenious and spontaneous creativity.



What does it do?

A parent or a carer looks at the masterpiece created by a child and might say sotto voce: “it does not do very much but it fills my heart with joy and the child will definitely exhibit at the Royal Academy of Arts one day”. Conversely, the child may loudly affirm that the masterpiece is a car, a den, a bicycle or a drawing for their next dress-up costume, using the imagination that went into its creation (Lucasfilm v Ainsworth [2011] UKSC 39, 44). Given inter alia the low level of technical knowledge children have in their early years, it could be argued that the masterpiece is unlikely to be very functional or imitative. Accordingly, it could be argued that the object in question is a copyright work because of the kind of skill, labour and judgement that went into it (Interlego AG v. Tyco Industries [1989] AC 217, 268). Significant empirical work could be undertaken in this respect to test this idea. A copyright lawyer looking at the interface between functionality and intellectual property could consider the work of the child as the absolute case study.


Did you do it all by yourself?

This third question speaks about authorship, originality and the exercise of rights. The driving argument of creativity and copyright in the early years is that imitation can only be minimal at the start, while it increases as creative languages (including literacy and music education) become a mixture of cultural and societal paradigms and are absorbed as part of the learning experience. The legal question of ‘Who did the writing?’ (Kogan v Martin [2019] EWCA Civ 1645) ought to be investigated through the interpretative lens of educators in order to appreciate e.g. how play and imagination become creative contributions to a work by a child in the early years. This will expand the understanding of the free and creative choices that go into the creation of a work during the evolution of authorial skills.


A critical reflection

The development of the ‘Born to be authors’ project focuses on the non-industrial author. The aim of the research is not to support the enforcement of further boundaries or forms of control on copyright works. Rather, it focuses on the just safeguards that should exist around the exploitation of those works, both in relation to economic and moral rights.  “While IP is increasingly conceived as being little more than a certain class of business assets held by companies, this is not all they are” (Dutfield & Suthersanen on Global Intellectual Property Law, 2nd edition, 2020, p. 22). Authorship by children epitomises this view and the significance of building a systematic legal scholarship on a just copyright system for all authors.

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Unrequited love at the times of French maisons: the Museum vs Le Musée

Image by WikiImages via Pixabay

When Sandro Botticelli depicted his beloved Simonetta Cattaneo de Vespucci as main character of “the Birth of Venus” back in the fifteenth century, he possibly thought she would eventually fall in love with him. She was the painter’s very first love and was perhaps the most beautiful Italian lady of those times. Yet, she kept ignoring him. That was an unrequited love.

Likewise, when the Uffizi Museum sent a letter to the French maison Jean Paul Gauthier back in April 2022 asking to cease all uses of “the Birth of Venus” in their Le Musée collection, it possibly thought it would eventually receive – at the very least – some kind of reply. Yet, the recipient simply ignored the letter (more precisely, as of now, it just removed the contested items from its online marketplace.

Italian women can be tough, and so are French maisons. Indeed, while more than five centuries have passed, nothing has changed: this was just another unrequited love. Yet, the Italian museum is way more than a shy, neglected lover as it is now suing Jean Paul Gaultier, invoking the violation of the Italian Code of Cultural Heritage (CCH) and requesting the withdrawal of the ‘illegitimate’ clothes as well as an award for damages.

Lame comparisons apart, this story is interesting as it is an opportunity to discuss the protectability of artistic works under Italian laws. For this purpose and in order to provide a brief overview of the current legal framework, we distinguished below among four different categories of artworks and identified their (potential) legal treatment based on their location (in a cultural institution/in the public space) and legal status (covered by copyright/ in the public domain):


Scenario 1 – Reproduction of artworks located in a cultural institution/museum and in the public domain

This is exactly the case here. We have an artwork, displayed in a museum and which is in the public domain. In other words, more than 70 years have passed from the death of its author, Sandro Botticelli.

This is an hypothesis the resolution of which is relatively easy, because it is expressly disciplined by the Italian CCH. According to article 107 CCH The Ministry, the Regions and other territorial government bodies may permit the reproduction as well as the instrumental and temporary use of the cultural properties committed to their care, without prejudice to the provisions in paragraph 2 and those with regard to copyright”. Thus, not only it is for the authority taking care of the artwork (e.g. museum institution, individual library and so on) to decide whether its reproduction shall be permitted but these very same authorities should also set out the specific concession fees associated with such reproduction. However, no fees shall be paid for certain specific uses, such as in the case of personal use, use for study purposes or public entities’ use with the aim of enhancing the assets themselves.

On the other hand, given that these artworks have already fallen in the public domain, in such a scenario there is no room for copyright to apply. In other words, the Uffizi’s claim could not be neutralized by relying on the Italian transposition of Article 14 of the DSM Directive, which provides that “when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.” This is for two reasons, as  pointed out by E. Rosati. First,  the Italian transposition of Article 14 is expressly without prejudice to the application of the CCH. Second, Art. 14 of the Directive is about the protectability of the reproduction of a public domain artwork, not a situation like that one at issue here, that is the actionability of the unauthorized reproduction of a public domain artwork.


Scenario 2 – Reproduction of artworks located in a cultural institution/museum and covered by copyright

Also in this second scenario an artwork exists that is  displayed in a museum. However, in this case, the author of the work is still alive and/or less than 70 years have passed from their death.

Thus, copyright protection in the work subsists, with authors having the exclusive right to authorise or prohibit the economic exploitation, including the reproduction, of their works. In this respect, it should be noted thar there is a clear difference between works protected by copyright law and works protected under the CCH. Differently than original works protected under copyright, Article 2 CCH states that cultural property consists of “immovable and movable things which, pursuant to articles 10 and 11, present artistic, historical, archaeological, ethnoanthropological, archival and bibliographical interest, and of any other thing identified by law or in accordance with the law as testifying to the values of civilisation”.

This being said, also in this second scenario as in the first, third parties willing to use and/or reproduce artworks located in a cultural institution will still need to get in touch with the respective care-taker entity, so as to verify whether any license agreement is in place. This is because it is possible – and even likely – that the rights of economic exploitation of the work at issue have meanwhile been transferred by the author to the institution itself. Under these circumstances, royalties shall be paid to such entity rather than to the author.


Scenario 3 – Reproduction of artworks displayed in a public space and in the public domain

This scenario shares some similarities with the case at issue. Indeed, there is an artwork and more than 70 years have passed from the death of its author. Yet, this work of art is not located in a museum but en plein air. This would be the case, for example, if Sandro Botticelli had been a street artist and his painting had been reproduced on the walls of some buildings in Florence rather than exposed in a museum. This is also the case for most of the architectural works, such as the Colosseum, built by our Roman ancestors and placed in Via dei Fori Imperiali in Rome.

Absent any legal provision on this point,[1] the mentioned works should be regarded as “commons” or common goods and their use should be permitted in all the possible forms, by anyone. Indeed, this conclusion is in line with the Italian Constitution and, more in general, with the need for the interests of the community to always prevail over those of individual owners, regardless of their public or private nature. At the basis of this solution there is the inevitable understanding that historical goods are first and foremost assets of the community, as they belong to the Nation rather than to public entities (Article 9 of Italian Constitution).

However, this solution does not seem to be accepted by many municipalities, which have recently asserted their rights on these works, even if displayed in public spaces. For example, according to the the regulation of the municipality of Lucca a prior authorisation is required, as well as the payment of a certain fee, for the case of photographs or filming taking place on municipal land and not having a purely private purpose.


Scenario 4 – Reproduction of artworks displayed in a public space and protected by copyright

This last scenario is very similar to the previous one: also in this case, there is an artwork and it is placed in the public space. Yet, its author is still alive and/or less than 70 years have passed from its death.

Absent any legal provision, in the authors’ view, a legal exception should apply, allowing the free reproduction of works which are permanently placed in public spaces. In particular, such exception should not distinguish between the reproduction of works protected by copyright (Scenario 4) and works in the public domain (Scenario 3), provided that these works are “permanent” and they are not intended for temporary collective enjoyment. Likewise, in the wake of other European models expressly recognising a “freedom of panorama” as per Article 5(2)(h) of the InfoSoc Directive, only two-dimensional reproductions (drawings, paintings, photos and videos) should be covered by the exception, as well as those uses which do not have the protected work as their central element. In other words, while a photograph including the Ara Pacis Museum in the background should always be allowed, . this would not be the case for a photograph the sole object of which is the museum itself.


Final remarks

Our analysis shows that the question of protectability of artworks in Italy is far from clear. This is all the more so when for works of art displayed in a public space, absent a specific rule on this topic.

Coming back to our Birth of Venus saga, the main difficulty here is that, when it comes to cultural goods, in line with the Italian CCH, each institution has to define the list of goods and the corresponding concession fees. Such a scenario inevitably involves high transaction costs, since every decision is left to the discretionary power of the institutions, and it is not possible for third parties willing to use the artwork to obtain a quote in advance. At the same time, such legal uncertainty affects all the parties involved.

In this respect, a potential solution de iure condendo would be the implementation of a legal system where not only the list of cultural goods but also the fees to be paid for their exploitation are established (and made publicly available) in advance by the relevant institution (and notably the Ministry of Culture). Fees should be different depending on the specific artwork at stake as well as the type of use and licensee. Indeed, such a system would be beneficial for all parties involved, given that it would achieve the underlying purpose of the Italian CCH: promoting and enhancing the Italian cultural heritage, while preserving the memory of the national community and its territory (Article 1 CCH).



[1] In Italy, there are three principal cases to look to for guidance. First, in 2017 the Court of Florence ordered the travel agency and tour operator Visit Today, which had reproduced the image of Michelangelo’s David statue in its advertising to remove all images of Michelangelo’s statue of David from its digital and print promotional material and publish the decision in three national newspapers and on Visit Today’s website. In the same year, the Court of Palermo found that an Italian bank had breached the CCH when including an image of the city’s Teatro Massimo in their adverts. Most recently, the Court of Florence issued an injunction against Studi d’Arte Cave Michelangelo S.r.l. for using an image of Michelangelo’s David, see https://www.legalcheek.com/2022/11/the-uffizi-follows-up-pornhub-success-by-suing-jean-paul-gaultier/

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The Contents of Global Privacy Law Review, Volume 03, Issue 4, 2022

We are happy to inform you that the latest issue of the journal is now available and includes the following contributions:

Tanguy Van Overstraeten & Richard Cumbley, Brace! Brace! Brace! The Wave of Incoming CJEU Decisions

This article considers the large number of pending decisions on data protection matters in front of the Court of Justice of the European Union (CJEU). The CJEU places great weight on protecting the rights of individuals and has not shied away from decisions that create significant practical difficulties for businesses. Businesses operating in the European Union should therefore brace for significant change ahead. The article also considers the extent to which the courts of the United Kingdom will continue to follow decisions of the CJEU.

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A research-friendly copyright system is a flexible copyright system


Bundestag Building, CC-by-SA 3.0 Jürgen Mattern

Knowledge Rights 21 (KR21) is a programme by European library and research associations IFLA, LIBER and SPARC Europe to mobilise the potential of Europe’s knowledge institutions, particularly libraries, to engage with others across the spectrum of the access to knowledge movement to build momentum towards long term copyright reform that benefits library users and researchers in the 21st century. In this blog post, originally published on the KR21 blog, KR21 policy committee member Felix Reda analyses the potential for copyright reform in Germany, where the government has included a promise to “promote a more research-friendly copyright” in its coalition agreement.


It has been a year since the German Social Democrats, Greens and Liberals formed the German government and published their coalition agreement, which promises to make Germany’s copyright law more research friendly.

Since then, in-depth assessments into the copyright law for research and education conducted by the Ministry of Justice and the Ministry of Education and Research have concluded that recent simplifications of those provisions, which were heavily criticised by publishers at the time, were justified and have largely stood the test of time. Moreover, research practitioners surveyed for the Ministry of Education study described those provisions as highly relevant for research and higher education activities.

However, despite the promise of the coalition to promote research-friendly copyright, there are no signs as of yet that the German government is planning to put forward the necessary legislative initiatives to break down barriers to research and education.


1. Flexibility for researchers in a rapidly changing environment

The COVID-19 pandemic has revealed many shortcomings of existing European copyright exceptions for research and education. In a crisis situation, when schools, libraries and universities had to rapidly switch from in-person offers to remote activities, it became clearer than ever that copyright law provisions which require users to be physically present in a given location, such as the dedicated terminals exception of Art. 5 (3) (n) of the InfoSoc Directive, are woefully outdated. The situation is made worse by the CJEU jurisprudence which has thus far denied the application of fundamental rights as an external limit to copyright law, instead insisting that the balance between different competing fundamental rights is already considered in the closed list of EU copyright exceptions. Nevertheless, a more flexible interpretation of the existing exceptions in light of emergencies such as the COVID-19 pandemic is possible.

The need for flexible rules became apparent once more when Ukrainian researchers, students and teachers had to flee Russia’s war of aggression and attempt to resume their research and education activities abroad. The Ukrainian government took what appears to be a pragmatic approach to copyright issues by making school books available online – a move that would be unthinkable under the very rigid German copyright system for school books that relies heavily on licensing.

If the last few years have taught us anything, it is that drastic, unforeseen changes to our everyday lives are to be expected. Not only could researchers, students and teachers be forced to stay home and conduct their activities online, or become displaced due to a war or natural disaster, they could just as well be barred from using digital tools as the consequence of a power outage, a cyber-attack or over-reliance on a single commercial vendor. A resilient copyright system that allows research and education to resume even in extreme crisis situations is a copyright system that incorporates open norms that can be adapted to new developments without the need for legislative intervention. This is why the demand for open norms in EU copyright law is central to a research-friendly copyright system.


2. A legal right to lend e-books is overdue

The most eagerly awaited and most overdue element of a research-friendly copyright system in Germany is the introduction of an e-lending provision. The demand to allow libraries to lend out e-books is explicitly mentioned in the coalition agreement of the current German government ( N.B. both of the previous government coalitions promised to look into the issue as well – and never delivered any solutions). Now it looks like another government may be kicking the can down the road with no legislative proposal for e-lending in sight.

Ensuring that libraries may continue to fulfil their public-interest mission of providing access to books in the digital environment is a cornerstone of a research and education friendly copyright framework. Negotiations between German associations of publishers and libraries over a licence agreement on e-lending have proven not only unsuccessful, but also fundamentally incompatible with competition law. Based on the current German copyright law, which includes a legal right to lend only for works whose distribution right has been exhausted, it has become clear that a legislative reform is necessary to clarify that the public lending right applies to e-books held by libraries as well.


3. Compensation requirements hinder the practical application of exceptions

There need to be fewer compensation requirements associated with the use of exceptions, and more, clearer rules that enable the use of exceptions when compensation agreements have not been reached.

For example, a current area of uncertainty is around sending copies digitally to library patrons instead of requiring the library to hand out a physical copy. There is no compensation agreement in place between the state and collecting societies for such digital copies (only for analogue ones), with the effect that sharing such digital copies has been frozen since the phasing out of emergency provisions introduced because of COVID. It is only logical that the government should cover the costs of compensation for uses of works undertaken by public institutions as part of the mission given them by government. The absence of provisions or solutions here gives the impression that in fact, lawmakers don’t really want the exception to be used, and so don’t want researchers and students to have access to the literature they need.


4. End special treatment of press publishers

The effort to invent ways to create new revenue streams for press publishers was a major feature of the EU’s copyright reforms in the second half of the last decade. Ignoring the lack of evidence that these delivered the positive outcomes promised, the press publishers’ right was part of the final text of the Directive on Copyright in the Digital Single Market.

However in Germany, efforts to provide special treatment to the newspaper sector do not end there. Newspapers are excluded from some research and education exceptions in Germany, although they are extremely important research material, offering vital insights into the past. Such provisions seem more likely to suffocate research – especially for those less able to negotiate access – rather than generate any meaningful new revenue streams. 

There is no good reason to set more restrictive rules for use of such works compared to other materials, and so this anomaly should end.


5. No more inflexible rules around the percentage of a work that can be used

German law as it currently stands has a fixation for establishing figures for the share of a work that can be used under an exception. At first sight, this can look helpful, in that it provides a clear rule that can be used in applying the law. However, in reality, it is anything but!

Such provisions can often make little sense when read alongside the goals that the law is looking to pursue, or more meaningful considerations around proportionality or impact on the market. Defining what the ‘whole’ of a work can be far from simple. The logic behind such provisions is also put into question by the fact that there are also different percentages for different but similar use cases (some exceptions are limited to 10% of a work, while others seemingly arbitrarily to 15%).

Rather than using such rules as a shortcut for assessing what is possible, it would make far more sense to focus on what actually matters – the fairness of the use made.

The five actions set out above would represent a great way of ensuring that Germany’s government delivers on its promise to promote a science-friendly intellectual property system during its term.

However, this is not only a question for national governments. We need, also, reform at the EU level, where, despite the commitment to supporting the development of high-quality research in Article 179 of the Treaty on the Functioning of the European Union, there is still no general, mandatory research exception. Introducing this would be a major step towards achieving Treaty goals, as well as triggering much-needed reform in Germany and beyond.

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High Definition, Standard Definition and Copyright

Photo by Donald Giannatti on Unsplash

In April 2021, the Austrian Supreme Court referred two questions of principle to the CJEU concerning the activity of a satellite TV package provider (Austrian Supreme Court, 4Ob195/20k). On 22 September 2022, the Advocate General provided his opinion on the case.

The questions referred can be summarised as follows:

Is Article 1(2)(b) of the Satellite Broadcasting and Cable Retransmission Directive to be interpreted as meaning that a satellite package provider performs an act of exploitation merely in the State in which the programme-carrying signals are input so that his participation cannot lead to an infringement of copyright in the State of reception?
If question 1 is answered in the negative: Is the concept of ‘communication to the public’ to be interpreted as meaning that separate permission from the holder of the rights, including in respect of high definition content, is required, although the same works are already made available in poorer standard definition quality via free TV?

This reference for a preliminary ruling is based on the following facts:

In return for payment, the defendant offers programmes from numerous broadcasting companies in Austria bundled into different packages (satellite packages) via satellite in high definition (HD) and standard definition (SD) in encrypted form. It provides its customers with access keys to these packages with the consent of the broadcasting organisations. The input of the respective programme-carrying satellite signals into the communication chain (uplink) is mainly carried out by the broadcasting organisations themselves and under their responsibility. A stream is sent containing the entire programme in HD quality. The stream is received via SAT reception equipment within the broadcast area. In the process, the stream is split and the individual programmes become accessible to the user via a terminal device. If programmes have been encrypted with a code, they must be decoded by the reception system in order to be used. The broadcast packages are “created” by combining the access keys. The packages contain both pay and free TV programmes. The latter can be received by anyone in Austria via satellite in standard definition quality.

With reference to the ECJ decisions C-431/09, C-432/09, Airfield, and C-325/14, SBS Belgium, the lower courts dismissed the claim for an injunction to stop the retransmission of the satellite signal in Austria, but largely upheld the claim for an injunction to stop the satellite transmission of the programme signals in question directed at Austrian territory, as well as the corresponding request for information. As a result, they concluded that the defendant would reach a new public with its high definition broadcasts because the target audience of the defendant’s satellite packages would go beyond the audience that the individual broadcasting companies serve with their standard definition offerings. Apart from that, the defendant would not only act as a technical service provider in relation to the broadcasting companies, but in an autonomous position, because it would decide itself on the composition of its packages and thus create its own additional offer for end customers.

The Supreme Court came to the conclusion that CJEU case law did not provide clear guidance on how to resolve the present case.

Against the background of the factual findings of the lower courts on the technical process of transmitting the encrypted broadcast signal, which amounts to a mere “carrying” of the defendant satellite package provider with the uniform broadcast signal of the respective broadcasting company, it cannot be said in the present case that the activity of the defendant is equivalent to the downstream operation of an independent broadcasting network. If the package provider, in the context of its activity as a subscriber, merely participates in the original satellite transmission in addition to the broadcasting organisation, it cannot be qualified as a “retransmitter” for this reason alone. The decision to be made in the present case therefore depends on the question of whether the defendant, by participating in the satellite broadcast alongside the respective broadcasting company for the purpose of making the satellite package available to its Austrian customers, has actually carried out an act of exploitation in the receiving state. The previous ECJ decisions C-431/09, C-432/09, Airfield, C-403/08, C-429/08, Premier League and C-325/14, SBS Belgium, as well as the decision C-62/79, Coditel I, which was issued before the Satellite Directive, do not provide an answer to these questions, so they cannot support the decisions of the Austrian lower instances.

Apart from this, the Supreme Court also had substantive reservations about the legal opinion of the lower courts: in the opinion of the Supreme Court, there are good reasons for locating not only the act of use of the broadcaster actually responsible for the satellite broadcast exclusively in the uplink state, but also that of the satellite package provider. According to the decision of the CJEU in Airfield, the package provider, in the course of its activity, merely participates in the original, uniform and sole satellite transmission alongside the broadcasting company. However, if the broadcasting organisation and the satellite package provider are (co-)responsible for a single act of broadcasting, it can be assumed that both have to obtain the consent of the respective right holder, if necessary, where the input of the satellite signal takes place. In the case of a failure to obtain consent, however, a possibly unlawful exploitation would take place exclusively in the broadcasting state. However, according to the Supreme Court, this result is not without doubt therefore it has referred the first question to the CJEU.

If the first question referred is to be answered in the negative, the question arises as to whether the package provider in the country receiving the satellite signal performs a necessary act of exploitation in the sense that it reaches a new public. The Supreme Court was unsure that this is the case given that that the works in question can be received by everyone in Austria in standard definition anyway, whereas the protected works are exclusively made available to the subscribers of the defendant in better high definition quality, and because the defendant, which creates an independent, self-assembled package offer for end customers, does not act as a mere technical service provider in relation to the broadcasting companies, but in an autonomous position. For this reason, the Supreme Court asked the second question referred for a preliminary ruling.

In his opinion, the Advocate General proposed to answer the first question referred for a preliminary ruling by stating that such a satellite package provider is not obliged to obtain the authorisation of copyright and related rights holders for communication to the public by satellite in the Member State where the protected work thus transmitted is available to the public.

In response to the second question referred, the Advocate General stated that in his opinion the concept of new public would in principle not be applicable to the present case, especially since a high definition broadcast would probably not be a mere retransmission of standard definition content, and rightholders can limit their consent to the broadcast of certain picture qualities. The fact that standard definition content is already available would therefore not exempt the exploiter from obtaining consent to broadcast the corresponding high definition material. In this context, the Advocate General also points out that the picture quality also has an influence on the experience of the musical works embedded in the picture material. This is relevant in so far as the applicant is an Austrian collecting society which administers music rights but not image rights. However, due to the fact that the concept of the new public is not supposed to be applicable anyway, the Advocate General refrained from proposing an answer to the second question referred.

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US—Copyright Round-Up

Recent appellate decisions in the United States have recognized expanded grounds for personal jurisdiction in cases of internet-based copyright infringements; divided on the extent to which the three-year statute of limitations limits damage recoveries; and increased the occasions for motions to dismiss on the ground of fair use. Also, in a rebuff to claims of copyright in AI-created works, the US Copyright Office has reaffirmed its position that human authorship is a requirement for copyright protection.

Personal Jurisdiction. As a rule, the mere transmission of copyright-infringing content on the internet will not subject the infringer to personal jurisdiction in every state where the content is received, and courts will instead apply some variant of a formula requiring the infringer to have specifically directed its activities toward the forum state with the intention of doing business there. But, what if the allegedly infringing activities are not directed at the forum state? Under Federal Rules of Civil Procedure 4(k)(2) personal jurisdiction will nonetheless lie “(A) if the claim at issue arises from federal law and the plaintiff can show that the defendant is not subject to jurisdiction in any state’s court of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws.”

In Lang Van, Inc. v. VNG Corp.[1] the Ninth Circuit Court of Appeals upheld personal jurisdiction in California over an offshore internet music distributor where the nature of the claim—copyright infringement—manifestly met Rule 4(k)(2)’s first prong and defendant’s failure to concede that any other state had jurisdiction met the second. Further, the defendant had not borne the burden of showing that “application of jurisdiction would be unreasonable.”  Among other facts bearing on reasonableness were that defendant’s app was downloaded more than 320,000 times in the US and defendant made no effort to geoblock plaintiff’s copyrighted content from the US.

Limitations on damages. Most American courts apply a “discovery rule” to the Copyright Act’s three-year statute of limitations and count the limitations period not from the time the infringement occurred, but from the time “the plaintiff learned or by reasonable diligence could have learned that he had a cause of action.”[2] Courts divide, however, on the discovery rule’s implications for recovery of damages: should the successful claimant be allowed to recover damages only for infringements that occurred within three years before it filed its lawsuit, or should it be entitled to recover damages back to when the undiscovered infringement first occurred? In Sohm v. Scholastic Inc.[3] the Second Circuit Court of Appeals read the Supreme Court’s decision in Petrella v. MGM[4] to require the first result. More recently, however, the Ninth Circuit in Starz Entertainment, LLC v. MGM Domestic Television Distribution, LLC[5] ruled that Petrella “did not create a damages bar separate from the statute of limitations,” and held for the second result: “the discovery rule for accrual allows copyright holders to recover damages for all infringing acts that occurred before they knew or reasonably should have known of the infringement.”[6]

Fair use motions to dismiss. The US Supreme Court recently endorsed the general view that fair use is a mixed question of law and fact: “reviewing courts should appropriately defer to the jury’s findings of underlying facts; but…the ultimate question whether those facts showed a ‘fair use’ is a legal question for judges to decide de novo.”[7] Reflecting the current dominance in fair use cases of the essentially legal, rather than factual, “transformative use” doctrine, courts since the mid-1990s have shown an increased willingness to resolve fair use cases on summary judgment and, more recently, on motions to dismiss.[8] The transformative use doctrine is presently front and center before the Supreme Court[9] and the Court’s eventual opinion should be watched for any reduction in the doctrine’s scope, as this could in turn reduce grants of fair use motions to dismiss.

Copyright for AI Products? In a 2022 Copyright Review Board decision[10] the US Copyright Office rejected a second request for reconsideration of a refusal to register a two-dimensional work of art described by the applicant as “autonomously created by a computer algorithm running on a machine.” (The applicant disclaimed any element of human authorship, but asserted ownership by reason of ownership of the “Creativity Machine.”) Rejecting the applicant’s argument that “the human authorship requirement is unconstitutional and unsupported by either statute or case law,” the Board observed that “[t]he Office is compelled to follow Supreme Court precedent, which makes human authorship an essential element of copyright protection.” The Board also rejected claimant’s argument “that artificial intelligence can be an author under copyright law because the work made for hire doctrine allows for ‘non-human, artificial persons such as companies’ to be authors.” In the Board’s view “the work-for-hire doctrine only speaks to the identity of a work’s owner, not whether a work is protected by copyright.”


[1] 40 F. 4th1034 (9th Cir. 2022).

[2] Taylor v. Meirick, 712 F.2d1112, 1117 (7th Cir. 1983).

[3] 959 F.3d 39 (2d Cir. 2020).

[4] 572U.S. 663 (2014).

[5] 39 F. 4th1236 (9th Cir. 2022).

[6] 39 F. 4th at 1244.

[7] Google LLC v. Oracle America, Inc., 141 S. Ct. 1183. 1199 (2021).

[8] See, e.g., Monsarrat v. Newman, 28 F.4th 314, 321 (1st Cir. 2022)(“Simply by looking at the copyrighted work, its purpose as alleged in the complaint, and what Monsarrat concedes to be the circumstances and nature of its copying, we can see no plausible argument that Newman has not established fair use.”); Bell v. Eagle Mountain Saginaw Independent School District, 27 F. 4th 313, 320-21 (5th Cir. 2022)(“While the fair use defense is usually teed up at summary judgment, we can resolve it on the pleadings if the complaint contains ‘facts sufficient to evaluate each of the statutory factors.”).

[9]  Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 142 S.Ct. 1412 (2022)(cert. granted).

[10] Correspondence ID 1-3ZPC6C3; SR#1-7100387071.

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