European Law II Rights

6.11.2020, Aalto University

Kalle Hynönen Agenda

• Economic rights • Exceptions and limitations

2 6.11.2020 Economic rights

3 6.11.2020 Economic rights

• Common economic rights: • Reproduction • Public communication right • Distribution right • Renting right • Broadcasting • May be transferred to others or licensed others to use • Compared to the moral rights, which protect the ’personality of the author’, economic rights protect author’s financial interests

4 2.11.2020 Reproduction right

• InfoSoc Directive, Art. 2: “Member States shall provide for the exclusive right to authorise or prohibit reproduction: • Direct or indirect; • Temporary or permanent; • By any means and in any form; • In whole or in part.

• C-5/08 Infopaq • Reproduction means reproducing any part of the work that is original in itself in the meaning of being “author’s own intellectual creation”. • C-403/08 and C-429/08 Football Association Premier League • Reproduction is an autonomous concept within the EU

5 2.11.2020 Reproduction right

• What constitutes an infringement? • Similarity to be found between protected work and reproducted work • Abovementioned similarity is caused by copying the copyright protected work • C-5/08 Infopaq • Newspaper title of 11 words constituted a part of copyright protected work, of which replication constituted reproduction • Similar work • Of the substance or the look and feel similar enough • Causal connection between works • Adaptions, ideas and impressions – reproducted works? • Derivation may not infringe, if independent skill and labour has been used in the making of the second work • Ideas are not generally protected

6 2.11.2020 Transient and incidental copies - computer programs, databases and the Internet • Transient and incidental copies may infringe copyright unless authorised • When copying involves ”loading, displaying, running, transmission or storage of the computer program”, authorisation of the author is required (Computer program protection directive 2009/24/EC) • However, temporary copies, which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable: • (a) a transmission in a network between third parties by an intermediary, or • (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, are permitted • C-403/08 and C-429/08 Football Association Premier League • Reception of pre-recorded showing where a transient sequential fragments were created the satellite decored and on tv-screen (!) • Reproduction extends to the abovementioned transient fragments of works • C-360/13 Public Relations Consultants Association v Newpaper Licensing Agency Ltd (Meltwater) • Ordinary use of the Interner creates temporary copies (cache) • Is reproduction temporary, transient or incidental, integral part, its sole purpose is to enable transmission in network, and it has no economic significance?

7 6.11.2020 Communication to the public

• Art. 3 InfoSoc Directive • “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.” • Only when the recipients are not present in the place where communication originates • Retransmission by the means of cable of TV broadcasts to hotel rooms • Showing of TV broadcast/playing radio in a restaurant • Uploading files on the internet • also: Hyperlinking when bypassing restrictions

8 6.11.2020 Communication to the public – requirements (1/2)

• Communication • Wires/wireless • To the public not present at the place where communication originates • Providing access which would not be normally available (using new technical means) • Does not matter if access is used or not

• Public • Large, intedeterminate circle of people (C-306/05 SGAE) • Cumulative effect of making the works available to potential recipients should be taken into account (C-607/11 ITV Broadcasting) • Only if communicated to ”new public” • C-466/12 Svensson v Retriever Sverige • The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication to the public (C-527/15 Stichting Brein)

9 6.11.2020 Communication to the public – requirements (2/2)

• Requites that communication is done • 1) With new technical means • Specicif technical means, different from previously used • Mere technical means to ensure/improve reception of the original transmission does not constitute a communication (C-607/11 ITV Broadcasting) Or • 2) Communicated to ”new public” • Public not already taken into accound by the right holders • For example, clientele of television sets can be different public than radio broadcasting (C-306/05 SGAE, C-306/05 Rafael Hotels) • Could hyperlinks constitute communication to the public in the sense of new public? (C-466/12 Svensson)

• Does it matter if communication is done for profit? • Profit-nature does not determine communication to the public (C-177/15 Reha) • It is not, however, irrelevant

10 6.11.2020 Communication to the public

• C-160/15 GS Media v. Sanoma 8.9.2016 • Hyperlink to a protected works was freely available on another website • When the posting of hyperlinks is carried out for profit, it can be expected that necessary checks are carried out to ensure that the protected work is not illegally published • It is relevant to determine: • are links provided without the pursuit of financial gain; • by a person who did not know / could not reasonably have known the illegal nature of the publication of those works • C-610/15 Stichting Brein v. Ziggo BV, 14.7.2017 • Case concerned making available and managing a sharing platform, which allowes users to locate protected works and share them in peer-to-peer network • Any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ • Making available an online sharing platform constitutes a communication to the public • Cases C-628/18 and C-683/18 Youtube, AG’s opinion 16.7.2020 • The operator of a video-sharing / a file-hosting and -sharing platform does not carry out an act of ‘communication to the public’ when a user of their platforms uploads a protected work there

11 6.11.2020 Distribution right

• Art. 4 InfoSoc Directive • Exclusive right for authors to authorise or prohibit any form of distribution to the public by sale or otherwise • Only for works incorporated in ”tangible article” • Only covers sale and other transfer of ownership • C-456/06 P&C v. Cassina • Distribution to the public otherwise than though sale applies only on the event of a transfer of the ownership • Granting to the public the right to use reproductions of a work protected or exhibiting to the public those reproductions without actually granting a right to use them do not constitute distribution • C-516/13 Dimensione Direct Sales • Irrelevant, if advertising is not followed by the transfer of ownership of the protected work or a copy thereof to the purchaser • Holder of an exclusive right to distribute can prevent an offer for sale or a targeted advertisement of the original or a copy of that work • = distribution right may be infringed just by advertising sale of protected works

12 6.11.2020 Exhaustion of distribution right

• Art. 4(2) InfoSoc Directive “where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent” • Only after ownership is transferred and economic consideration received (C-419/13 Allposters) • Not for services, including online services • The right holder can no longer enforce his distribution right with regard to a copy that 1. has been placed on the market by the right holder or with his consent 2. in the European Economic Area • Example: You can sell a book in Finland that is bought in Sweden • But: ebooks bought online cannot be resold without right holder authorization • Exception: Software C-128/11 UsedSoft • Even download of a digital copy can amount to sale if: • rights are given without time limitation • the price paid is close to the market price • Computer Programs Directive (2009/24/EC) does not give software copyright owners the right of communication to the public

13 6.11.2020 Resale

• Resale Rights Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art • For works where reproduction rights can’t be the main source of income – visual art • For whom: • Authors of original works of graphic and plastic art • What: • A royalty based on the resale price, in principle payable by the seller, inalienable and unwaivable • When: • Any resale involving an art market professional as seller, buyer or intermediary

14 6.11.2020 Rental and lending rights

• The Rental and Lending Rights Directive 2006/115/EC • The Rental and Lending Rights Directive provides for a specific right to control rental and lending for (i) authors, (ii) performers, (iii) phonogram producers and (iv) producers of first fixations of films • Rental: available for use, for a limited period of time and for direct or indirect economic or commercial advantage • Lending: making available for use, for a limited period of time and not for direct or indirect economic or commercial advantage, when it is made through establishments which are accessible to the public • Not exhausted upon sale: A first sale does not exhaust the rental or lending right (art. 1(2) R&L Dir.) • Member States may provide for a derogation from the lending right for public lending. • Finnish Copyright Act 19 section: The right to remuneration does not include lending from other than public library or higher education library. (For example, primary school libraries) • Authors are entitled to a remuneration.

15 6.11.2020 Exceptions and limitations

16 6.11.2020 Exceptions and limitations in the EU

• There has been no general harmonization of limitations and exceptions. • The InfoSoc Directive contains a closed list of one mandatory and twenty optional exceptions and limitations to the rights harmonized by that directive. • There is no “fair use” in the EU • Exceptions and limitations with regard to the rights of authors may be extended to the rights of related right holders granted by the R&L Directive (art. 10(2)). • The Orphan Works, DSM Directives and the Marrakesh Regulation provide some ‘horizontal’ exceptions.

• Computer programs and databases have their own regime of limitations and exceptions. • Degree of harmonisation • Autonomous concepts (concepts that make no reference to national law for the determination of their meaning or scope) receive a uniform interpretation. E.g. “quotation”, “parody”, “incidental inclusion” etc. • Otherwise Member States may possess a “significant discretion” to define the detailed conditions, subject to supervision by the CJEU.

17 6.11.2020 Acts of temporary reproduction

Art. 5(1) InfoSoc Directive

• 1) the act is temporary; • 2) it is transient or incidental; (Filmspeler) • 3) it is an integral and essential part of a technological process; (Infopaq C-5/08) • 4) the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary, or a lawful use, of a work or protected subject-matter; and • 5) the act has no independent economic significance (Infopaq C-5/08) • Cumulative conditions: non-compliance with any of them cancels the exemption (Infopaq C-5/08) • Strict interpretation (C-360/13 Public Relations Consultants Association) • May not cause unreasonable prejudice to copyright holders (C-435/12 ACI Adam and Others)

18 6.11.2020 Private copying

• Art. 5(2)(b) “reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the right holders receive fair compensation which takes account of the application or non-application of technological measures • Only of lawfully acquired source (C-435/12 ACI Adam) • “Fair compensation”: to compensate for possible harm (C-467/08 Padawan)

• Fair compensation should be calculated on the basis of the criterion of harm caused to right holders by the making of unauthorized copies. It is in principle for the person who has caused the harm to pay fair compensation (often indirectly).

19 6.11.2020 Parody

• Art. 5(3)(k) InfoSoc Directive • Case C-201/13 Deckmyn • Parody: • Exhibits humor or mockery • Displays noticable differences from the original • Relates to original work • Parody’ is an autonomous concept of EU law, meaning member states are not free to determine the limits thereof in an unharmonized manner. • The interpretation of the concept of parody must enable its effectiveness and observance of its purpose. • A parody must (i) evoke an existing work while being noticeably different from it and (ii) constitute an expression of humour or mockery.

• Member states may not impose any other conditions. • However, the application of the exception must preserve a fair balance between the rights and interests of right holders and of users.

20 6.11.2020 Educational purposes

• Art. 5(3)(a) InfoSoc Directive • “use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved” • Art. 5 DSM Directive • Member States provide for an exception or limitation to several rights in order to allow the digital use of works and other subject matter for the sole purpose of illustration for teaching • DMS Directive introduces a new exception for text and data mining for scientific research purposes and provides more legal certainty to researchers.

21 6.11.2020 Orphan works

• Protected works, whose authors or right holders are not know / cannot be located • Directive 2012/28/EU sets common rules concerning digitalisation and online display of orphan works • Libraries, archives, museums etc. in the EEA can digitise and make orphan works available without the permission of the author • Applies to several different forms of works (books, newspapers, audiovisual works etc.) • Diligent search must be carried out before establishing the status of an orphan work • EUIPO manages Orphan Works -database

22 6.11.2020