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PAPERS

GS Media and Soulier: may the hyperlink conondrum be solved - and the "new public", "specific technical means" and "restricted access" theories be neutralized - through the application of the implied license doctrine and the innocent infringment defense?
2018-08-04
By Dr. Mihály J. Ficsor
In my paper entitled “Svensson: honest attempt at establishing due balance concerning the use of hyperlinks – spoiled by the erroneous ‘new public’ theory” published on this website, it is discussed, inter alia, how the CJEU tried to establish due balance between various rights and interests concerning the use of hyperlinks by applying the “restricted access” theory (along with the “new public” and “specific technical means” theories, which in my view, were also badly founded but, in previous cases, they had not created yet major substantial problems). In that paper, I outlined two possible options of interpretation and evolution of the criterion of “restricted access”. One of them (and the more probable one) was reducing the concept of restricted access to restriction through technological measures, leading to de facto exhaustion of the right of communication to the public. The other option (less probable in view of the findings in Svensson) was to recognize not only the use of technological measures but also other means to restrict availability of works, which could bring the legal construction closer to a specific form of implied license. In this paper, three recent CJEU decisions (one order and two judgments) are reviewed: BestWater which strengthened Svensson’s formality aspect and revealed how anachronistic results the combined application of the three theories might produce, and the GS Media – Soulier tandem, which appear to raise the possibility of putting the triptych of those theories to the backburner, making Svensson’s formality aspect fade away, and opening the way to solve the task of balancing of rights and interests concerning hyperlinks through appropriate application of the implied license doctrine and the innocent infringement defense.
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Minimum obligations under the "Internet Treaties" to provide protection for technological measures which cannot be disregarded in the name of "flexibilities"
2018-08-04
By Dr. Mihály J. Ficsor
Comments on Michael Geist's presentation made at the APEC Workshop on Santiago de Chile in 2012.
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Comments to the Marrakesh Treaty on accesssible format copies for the visually impaired
2018-07-12
By Dr. Mihály J. Ficsor
The Introduction to the Commentary points out that the limitations and exceptions foreseen in the Treaty – as also proved by the WIPO-Unesco Model Provisions adopted in 1982 (under the chairmanship of the author of the Commentary ) – may also be applied (and, in many countries, are applied) on the basis of the existing copyright treaties in accordance with the three-step test. The Treaty is historical, but not because it would be the first treaty to make the application of such limitations and exceptions possible. It is historical from the viewpoint of persons with visually impairment since it expresses full solidarity of the international community by offering an adequate legal and organizational framework for international cooperation to ensure more efficient availability of accessible format copies. It is also historical in a broader sense since it – together with the Beijing Treaty on Audiovisual Performances (BTAP) adopted a year earlier – seems to have put an end to a quite troubled period (more or less the last decade) in the international copyright relations by contributing to a well-balanced international regulation of copyright and, at the same time, rejecting a badly informed campaign against certain indispensable elements of the existing copyright norms (in particular the three-step test and TPM protection). The Introduction also discusses the reasons for which the Marrakesh Treaty has rightly be characterized as exceptional and unique and for which it cannot be regarded as a model for any treaties on other limitations and exceptions (not needed because those limitations and exceptions may be duly applied on the basis of the existing international norms). Namely, that it is a special-format treaty, a treaty on special-format copies for the visually impaired. The Commentary contains detailed paragraph-by-paragraph comments and an Annex added to it offering a thorough analysis of the key issues of the three-step test (of which a summary is included in the comment to Article 11 of the Treaty on the test).
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The WIPO "Internet Treaties" and copyright in the "Cloud"
2018-07-12
By Dr. Mihály J. Ficsor
The paper has been presented as a keynote speech at the ALAI Congress organized in Kyoto, Japan, from October 16 to 18. It analyses how the rights provided in the WIPO "Internet Treaties" - in particular, the rights of reproduction, distribution and makig available to the public - are applicable in the "cloud" environement. It also reviews the relevant case law (rulings of both national courts and of the CJEU) concerning both those services which began functioning already before the "conceptualization" of the "Cloud" (such as "virtual video recorders," social networks, UGC platforms, etc.) and the "cloud-native" services (such as "cyberlockers" and cloud-based distribution systems) along with case law concerning hosting services (since cloud services, in general, are qualified as such). The paper also discusses the application of exceptions and limitation and the question of exhaustion of rights in the "Cloud," as well as the role of DRM systems in support of legal cloud-based services.
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The hurried idea of the "European Copyright Code" in the light of the EU's (desirable) cultural and copyright policy
2018-07-12
By Dr. Mihály J. Ficsor
Certain documents published by the European Commission have referred to the possibility of preparing a "European Copyright Code" and establishing a "unitary copyright title." The paper (a partly modified and updated version of the paper presented at the 2012 Forham IP Conference) discusses the reasons for which the idea of such a "Code" does not seem to be timely (in particular, not in the form presented by the Wittem Group) and for which the creation of a separate "European title" is both unncessary and unjustified. The paper contains detailed comments on the so-called "European Copyright Code" published by the Wittem Group pointing out that (i) it would result in a decrease of the level of copyright protection which would not be the interest of the EU and its Member States; (ii) some of the draft provisions suggested in it are not in accordance the existing acquis and certain international norms; and (iii) some of them would not necessarily lead to harmonization but rather to disharmonization.
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