Transcript No Slide Title

Maastricht University
Essential Facilities for Competition
and Research, or is Copyright still
King?
Dr. Anselm Kamperman Sanders
Outline
Maastricht University
EC Directive 2001/29/EC ON THE HARMONISATION OF CERTAIN ASPECTS OF COPYRIGHT AND
RELATED RIGHTS IN THE INFORMATION SOCIETY of 22 May 2001.
Implementation date: 22 December 2002
EC Directive 96/9/EC on the legal protection of databases
Implementation date: 1 January 1998, reports of application due end 2002
Essential facilities for innovation, or is copyright still king?
Conclusion
Directive 2001/29/EC
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• Implements WCT and WPPT in the EU
• Features
– Right of communication to the public
– Anti-circumvention legislation
• Technical systems prevent infringing and lawful reproduction
• Outlaws devices used to circumvent, even if that circumvention
facilitates lawful copying (contrary to memorandum)
– Does Europe follow the DMCA?
• US: RIAA v. Corley; “DeCSS is like a skeleton key that can open a
locked door, a combination that can open a safe, or a device that can
neutralise the security device attached to a store's products”
• Norway (not a EU member!): “DVD-John’s DeCSS” case
• EU Directive requires intent, US DMCA does not
Directive 2001/29/EC
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• Limitations
– Temporary copies without separate economic
significance, integral to technical process
– Optional exhaustive enumeration of exceptions and
limitations to the reproduction right and the right of
communication to the public
• Subject to Berne Three Step Test
– Exceptions and limitations may only be used in certain specific
cases and may not be interpreted in such a way as to allow their
application to be used in a manner which unreasonably prejudices
the rightholders’ legitimate interests or conflicts with normal
exploitation of their work or subject matter.
– WT/DS160/R of 15 June 2000, 9(2) Berne/13 TRIPS has got teeth!
– Member States may provide for fair compensation & reprography
schemes
Directive 2001/29/EC
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• Limitations and technological measures
– Art. 6(4) Member States shall take appropriate
measures to ensure that rightholders make available to
the beneficiary of an exception or limitation provided
for in national law in accordance with Article 5(2)(a),
(2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means
of benefiting from that exception or limitation, to the
extent necessary to benefit from that exception or
limitation and where that beneficiary has legal access
to the protected work or subject-matter concerned.
• Germany proposes a deposit of technologically protected
works with their access keys/free of access restrictions
– Will we register copyright works in the future?
Directive 2001/29/EC
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• Exhaustion of rights
– Copyright protection under this Directive includes the exclusive
right to control distribution of the work incorporated in a
tangible article. The first sale in the Community of the original
of a work or copies thereof by the rightholder or with his
consent exhausts the right to control resale of that object in the
Community. This right should not be exhausted in respect of the
original or of copies thereof sold by the rightholder or with his
consent outside the Community.
– The question of exhaustion does not arise in the case of services
and on-line services in particular. This also applies with regard
to a material copy of a work or other subject-matter made by a
user of such a service with the consent of the rightholder.
Therefore, the same applies to rental and lending of the original
and copies of works or other subject-matter which are services
by nature.
Directive 2001/29/EC
Maastricht University
• Implementation date: December 2002
– Note all Member States have passed the necessary
implementing legislation
– The Finnish Parliament blocked a proposal by the
Finnish Government to implement the European
Directive after heavy criticism of the proposal from
the consumer group Electronic Frontier Finland
• Under European law, Finland remains under an obligation to
implement the Directive. The onus is on the Finnish
Government to propose implementing legislation that the
Parliament will pass
Directive 96/9/EC
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• Databases
• Art. 1
– 'database` shall mean a collection of independent works, data or
other materials arranged in a systematic or methodical way and
individually accessible by electronic or other means.
• Independent
– MIDI, OLG Munich - the data that make up the MIDI file are not
individually accessible
• Systematic
– C-Netz CoA Berlin - no physical ordering required, it is sufficient if the
data appear to be systematically arranged to the users of the database
– Wegener Hunter, CoA Leeuwarden- no quick access required
• Individually accessible
– The database must be fully search-able
Directive 96/9/EC
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• Rights
– Art. 3 Selection and arrangement copyright
– Art. 7 Sui generis database right
• right for the maker of a database which shows that there has
been qualitatively and/or quantitatively a substantial
investment in either the obtaining, verification or
presentation of the contents to prevent extraction and/or reutilization of the whole or of a substantial part, evaluated
qualitatively and/or quantitatively, of the contents of that
database.
Directive 96/9/EC
Maastricht University
• Substantial?
– Recital 19; the compilation of several recordings of
musical performances on a CD is not substantial
– Tele-Info CD BGH – event information in an online
ticketing system: yes
– Groupe Moniteur Cour d’Appel Paris – proofing and
printing is not substantial
– Wegener/Hunter Court of Appeal Leeuwarden –
proofing and printing is substantial
Directive 96/9/EC
Maastricht University
• British Horseracing Board (BHB) v. William Hill
Organization Ltd. High Court of Justice, 9 February 2001
– On-line bookmaker William Hill used racing information
compiled by the governing body of horse and dog racing (BHB)
for its betting web sites. Laddie J. ruled that the BHB database
is protected by database right. BHB was found to have invested
substantially in the controlling and up-keeping of its database.
William Hill had copied a substantial part of the database, by
extracting core information, such as the times and places of the
races, in a repeated and systematic manner. In passing, the court
noted that so-called ‘dynamic’ databases, requiring constant
updating, are also protected by database right.
Directive 96/9/EC
•
1.
Maastricht University
Case C-203/02
May either of the expressions: (a) ‘substantial part of the contents of the database’; or (b) ‘insubstantial parts of the
contents of the database’ in Article 7 of the Directive include works, data or other materials derived from the
database but which do not have the same systematic or methodical arrangement of and individual accessibility to
be found in the database?
2. What is meant by ‘obtaining’ in Article 7(1) of the Directive? In particular, are the facts and matters in paragraphs
24-31 above capable of amounting to such obtaining?
3. Is ‘verification’ in Article 7(1) of the Directive limited to ensuring from time to time that information contained in
a database is or remains correct?
4. What is meant in Article 7(1) of the Directive, by the expressions: (a) ‘a substantial part, evaluated qualitatively ...
of the contents of that database’? And (b) ‘a substantial part, evaluated quantitatively ... of the contents of that
database’?
5. What is meant in Article 7(5) of the Directive, by the expression ‘insubstantial parts of the database’?
6. In particular, each case: (a) does ‘substantial’ mean something more than ‘insignificant’ and, if so, what? (b) does
‘insubstantial’ part simply mean that it is not ‘substantial’?
7. Is ‘extraction’ in Article 7 limited to the transfer of the contents of the database directly from the database to
another medium or does it also include the transfer of works, data or other materials, which are derived indirectly
from the database, without having direct access to the database?
8. Is ‘re-utilization’ in Article 7 of the Directive limited to the making available to the public of the contents of the
database directly from the database, or does it also include the making available to the public of works, data or
other materials which are derived indirectly from the database, without having direct access to the database?
9. Is ‘re-utilization’ in Article 7 of the Directive limited to the first making available to the public of the contents of
the database?
10. In Article 7(5) of the Directive what is meant by ‘acts which conflict with a normal exploitation of that database or
unreasonably prejudice the legitimate interests of the maker of the database’? In particular, are the facts and
matters in paragraphs 40-47 above in the context of the facts and matters in paragraphs 32-35 above capable of
amounting to such acts?
11. Does Article 10(3) of the Directive mean that, wherever there is a ‘substantial change’ to the contents of a
database, qualifying the resulting database for its own term of protection, the resulting database must be considered
to be a new, separate database, including for the purposes of Article 7(5)?
Directive 96/9/EC
Maastricht University
• Spin-off: The database is compiled as a by-product of
another activity, and therefore there has not been a
substantial investment in the creation of the database
– Algemeen Dagblad et al v. Eureka (Kranten.com), President
District Court Rotterdam, 22 August 2000
– NOS v. De Telegraaf, CoA, The Hague, 30 January 2001
– Fixtures Marketing LTD v. Oy Veikkaus Ab, District Court,
Vantaa, 1 February 2002
• Betting agency Veikkaus, used information from the plaintiff’s fixture
list of the English Premier League, for its sport betting service. Fixtures
claimed database right to its fixture list, arguing that the list is a
protected database in the sense of the Database Directive. Veikkaus
argued that the investments made in the production of the collection of
data were not specifically directed at the obtaining, verification and
presentation of the database.
Directive 96/9/EC
Maastricht University
• Case C-46/02 Preliminary questions (see similarly Case C-338/02)
1. Can the requirement in Article 7(1) of the Directive regarding the investment
being directed at the making of a database be interpreted so that the
‘obtaining’ referred to in paragraph (1), and the investment in the same,
means in the case at hand the investment in the determination of the match
times and of the clubs playing in each match itself, and does the drawing-up
of a fixture list involve investments which cannot be taken into account
when the criteria for protection under the sui generis right are being
assessed?
2. Is it an objective of the Directive to protect the parties drawing up a fixture
list so that others cannot without permission utilize the individual data in the
fixture list in sport betting activity or in other commercial activity?
3. Is Veikkaus utilizing a qualitatively and/or quantitatively substantial part of
the database, as required in the Directive, in view of the fact that, at any one
time throughout the season, one week’s worth of match data in the fixture
list is utilized in the betting coupons for that week and that the data is
obtained and verified from sources other than the maker of the database?
Directive 96/9/EC
Maastricht University
• What is the rationale of
database protection?
– Provide incentives for the
growth of the database industry?
– Sweat of the brow protection?
• Not the creation of
information is protected, but
the compilation/creation of the
database
Maurer S., Hugenholtz P., Onsrud H., ‘Europe’s Database
Experiment’, Science vol. 294, 26 October 2001, 789
Directive 96/9/EC
Maastricht University
• Databases and the Internet
– Does linking infringe the database right?
• Algemeen Dagblad et al v. Eureka, President District Court
Rotterdam, 22 August 2000
– Website ‘Kranten.com’ provided automatic hyperlinks to newspaper
articles posted on-line. Newspaper publisher PCM argued, inter alia,
that the unauthorized use of headlines constituted database
infringement. The court did not agree; the headlines were a mere
by-product (‘spin-off’) of newspaper publishing, and therefore did
not reflect any substantial investment. Moreover, PCM had failed to
show that by Kranten.com’s systematic linking to underlying web
pages or ‘deep linking’ it had lost advertising revenue
Directive 96/9/EC
•
Maastricht University
Databases and the Internet
– Does a search engine infringe the database right?
• Internet Databases, District Court Berlin, 29 September 1998
– The on-line database SZ-online, which contained classified ads from the
Sächsischen Zeitung newspaper, was systematically searched by a ‘meta
search engine’ (www.suche-was.de), that automatically e-mailed search
results to users. The Berlin Court ruled that the conversion into digital form
and the selecting, updating and verifying of the ads constituted a substantial
investment under §87a (1) (1) of the German Copyright Act. The use of the
search engine was held to amount to repeated and systematic extraction of
insubstantial parts of the database that unreasonably damaged the lawful
interests of the owner of the database right. The website owner was deemed
to have incurred losses because the search engine systematically bypassed
the advertisements on the SZ-Online site.
• Similarly:
– Berlin Online, District Court Berlin, 8 October 1998
– Süddeutsche Zeitung, District Court Cologne, 2 December 1998
• Conversely:
– Search Engine for Newspapers, Higher Regional Court Cologne 27 October
2000
– Newspaper Search Engine, District Court Berlin 30 January 2001
» Metatag instructions fail to limit deep linking an access
Directive 96/9/EC
Maastricht University
• Databases and the Internet
– Does proxy caching infringe database rights?
– Proxy caching involves copying as well as extraction
and reutilisation
• Google offers a service based on proxy caching
EC Competition Law
Maastricht University
• Magill, ECJ decision
– Copyright in TV program listings
– Abuse of a dominant position in a derivative market
• IMS Health, Commission interim measure
– Copyright in a brick structure of a pharma database
– Abuse of a dominant position in a primary market
• Firmenbuch, Austrian Supreme Court
– Sui generis right in a database of chamber of
commerce information
– Abuse of a dominant position in a primary market
Is Copyright still King?
Maastricht University
• Contrary to Firmenbuch there is no
innovation in IMS
• IMS Commission order for a
compulsory licence was withdrawn
• Copyright monopoly still prevails
• Need to allow for compulsory
licensing in case of innovation