Christina Angelopoulos

Open content licensing : from theory to practice

Innovative scientific research plays a crucial role in addressing global challenges, such as healthcare and environmental and security issues, while research in social sciences and the humanities occupies a key function in understanding emerging social phenomena. The speed and depth of scientific research, understood in its broadest sense, depends on fostering collaborative exchanges between different communities and assuring its widest dissemination. This, in turn, is fundamental for the constant evolution of science and human progress. Access to research output not only increases the returns from public investment in this area, but also reinforces open scientific inquiry. It encourages diversity of opinion, promotes new areas of work and enables the exploration of topics not envisioned by the initial investigators. Collaborative exchanges help avoid the unnecessary duplication of research and address some of the global health inequalities. Timely and cost-efficient access to scientific research, therefore, contributes to increasing general economic and social welfare. More than any other kind of research, publicly funded scientific research constitutes an essential building block for further progress and innovation, one that is often seen as a collective good. For this reason, the common assumption is that, for the greater good of science and the public interest, publicly funded research should be made accessible without restriction. This principle of unfettered access also entails the freedom to use and reuse publicly funded scientific research.Public authorities keep vast amounts of information. Freedom of information (‘FOIA’) laws give the public rights of access to much public sector information. The spread of FOIAs across the globe testifies to their importance as instruments for enhancing democratic accountability. But access to public sector information not only serves political purposes. It is also thought to have economic benefits, enabling the development of new information products and services. This is the policy objective behind the EU Directive 2003/98 on the Re-use of Public Sector Information (PSI Directive).Despite popular belief to the contrary, much public sector information is subject to intellectual property rights. Both access to public sector information for democratic purposes and for economic purposes have implications for how intellectual property rights in information produced by governments are exercised. Rather curiously perhaps, FOIA’s are generally silent on the issue. Nor does the PSI Directive prescribe how public sector bodies should exercise any exlcusive rights in information. This paper explores the role of copyright policy in the light of the objectives and principles of both freedom of information law and the regulatory framework for re-use of public sector information. More specifically, it queries whether open content licenses like Creative Commons are indeed the attractive instrument they appear to be for public sector bodies that seek to enhance transparent access to their information, be it for purposes of democratic accountability or re-use for economic or other uses.Papieren pracht uit de Amsterdamse Gouden Eeuw - 8[-]Woord vooraf - 12[-]Inhoud - 13[-]Dr. Th.J. Steenbergen en het moderne mecenaat - 15[-]Een goudmijn voor de Gouden Eeuw - 19[-]Publieke collecties en particulier initiatief - 21[-]Geestig, amoureus en aandachtig - 24[-]Roeien naar de Volewijck - 32[-]Hoe Cupido Nederlands leerde - 40[-]Nuchtere lessen voor het dagelijks leven - 48[-]Open content licensing : from theory to practice - 2[-]Contents - 6[-]1. Open Content Licensing: From Theory to Practice - An Introduction - 8[-]2. Towards a New Social Contract: Free-Licensing into the Knowledge Commons1 - 22[-]3. Is Open Content a Victim of its Own Success? Some Economic Thoughts on the Standardization of Licenses - 52[-]4. (Re)introducing Formalities in Copyright as a Strategy for the Public Domain - 76[-]5. User-Related Assets and Drawbacks of Open Content Licensing - 108[-]6. Owning the Right to Open Up Access to Scientific Publications - 138[-]7. Friends or Foes? Creative Commons, Freedom of Information Law and the European Union Framework for Reuse of Public Sector Information - 170[-]8. Contributing to Conversational Copyright: Creative Commons Licences and Cultural Heritage Institutions1 - 204[-]9. Creative Commons and Related Rights in Sound Recordings: Are the Two Systems Compatible? - 244

Notice-and-fair-balance: how to reach a compromise between fundamental rights in European intermediary liability

ABSTRACT In recent years, Europe’s highest courts have searched for the answer to the problem of intermediary liability in the notion of a ‘fair balance’ between competing fundamental rights. At the same time, the ‘notice-and-takedown’ system, which first emerged as a solution to intermediary liability in the 1990s, has spread across the globe, transforming along the way into an assortment of ‘notice-and-action’ variants that differ from country to country. In this article, we seek to examine how both these approaches to the intermediary liability question can be usefully combined. Interpreting ‘fair balance’ as a call for compromise, we propose a move away from the traditional ‘horizontal’ approach of the EUs safe harbour regime, towards a more ‘vertical’ scheme, whereby distinct ‘actions’ are tailored to diverse wrong-doings: notice-and-notice for copyright, notice-wait-and-takedown for defamation and notice-and-takedown and notice-and-suspension for hate speech. Notice-and-judicial-take-down can function as a complementary all-purpose solution. Automatic takedown and notice-and-stay-down are applicable exclusively to child pornography. We suggest that the resulting calibrated system can contribute to achieving a truer ‘fair balance’ in this difficult area of law.

COMMUNICATION TO THE PUBLIC AND ACCESSORY COPYRIGHT INFRINGEMENT

In recent judgments, the Court of Justice of the European Union (CJEU) has been developing its interpretation of the notion of “communication to the public”. This forms one of the exclusive rights of copyright holders that have been harmonised by the InfoSoc Directive (Directive 2001/29/EC (OJ 2001 L 167 p.1)). As was established in 2006 (Case C-306/05, Sociedad General de Autores y Editores de Espana (SGAE ) v Rafael Hoteles , ECLI:EU:C:2006:764, at [31]), despite the lack of an explicit definition in that directive, the notion of a “communication to the public” must be given “an autonomous and uniform interpretation” throughout the EU. This finding initially resulted in the creation of a considerable amount of uncertainty for national courts. The gradual accumulation of information through subsequent CJEU judgments has begun to bring some clarity, while also raising new questions.

Hyperlinks and Copyright Infringement

DOES the posting of a hyperlink to somebody elses work that has been uploaded onto the Internet infringe their copyright? Although dissenters did exist, most copyright lawyers long assumed that the answer to that question was an obvious “no”. In 2014, this nonchalant approach was rejected by the CJEU in Svensson (Case C-466/12, EU:C:2014:76) in favour of a more complex analysis. More recently, the CJEUs approach to hyperlinks has been further developed in GS Media (Case C-160/15, EU:C:2016:644).