IRIS Plus

This new publication series from 2015 covers a selection of topics that are high on the European regulatory agenda, offering comparative and reliable information on a chosen topical issue in the perspective of the ongoing reforms of the legal framework on European and national level.

 

For each chosen topic, this new publication looks into:

  1. the economic and technological backdrop
  2. the international and European regulatory framework
  3. the national implementation of these provisions
  4. self- and co-regulation
  5. case-law
  6. recent trends.

 

The former version of the IRIS Plus series (until 2014) was a paid-for publication that featured a combination of a lead article, related reporting and a Zoom section, comprising overview tables, market data or practical information.

 

All published issues are now available online for free (see below):

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DLI IRIS Plus 2014-4

IRIS Plus 2014-4: The Influence of New Technologies on Copyright

Author: Lucie Guibault and João Pedro Quintais, Institute for Information Law (IViR), University of Amsterdam

Published: 04/02/2015

Technology affects economics and economics affects regulation. This is generally how the chain operates. The rules usually come later, and sometimes they may become outdated.

The last time the European rules on copyright were adapted to fit technological developments was almost fifteen years ago. This had a particular effect on the notion of communication to the public, which includes the right of the public to have access to copyright protected works, at their preferred place and time. In the meantime many audiovisual services developed online, yet it is not always clear whether certain acts of making audiovisual content available online fall within the scope of the right to communicate to the public, as defined by the InfoSoc Directive. Another interesting aspect is knowing when there has been a case of retransmission under the SatCab Directive, which has remained unchanged since 1993. Might it be timely to consider a REFIT exercise for these directives?

The Lead Article of this edition of IRIS plus explores the criteria that have been developed over the years by the Court of Justice of the European Union (CJEU) to assess whether there has been a “communication to the public” under the terms of the InfoSoc Directive. These criteria are used to determine the identity of the “user”, the definition of “the public”, the profit-making nature of communication to the public and the concept of “new public”.

Assessing each of these criteria may become a fairly complex exercise when it comes to live streams of TV broadcasts or hyper-linking to internet sites, where standard hyperlinks, embedded links and framing links are distinguished from one another. The authors of the Lead Article, Lucie Guibault and João Pedro Quintais, explore the European jurisprudence on each of these cases and guide us through the different scenarios of technical restrictions, subsequent unavailability of the content, contractual restrictions, access to unauthorised content and unfair competition.

Cable retransmission is another issue relevant to addressing technological development and the scope of copyright rules. In this case the usual suspect is the SatCab Directive and the requirement of a “retransmission” to justify mandatory collective administration. The authors consider in depth the case of “direct injection”, taking into account recent decisions of the Dutch and Norwegian courts that held there is no retransmission where there is no “secondary communication” following the “primary communication”. It is worth noting that the CJEU has recently been asked to address this question, following a Belgian preliminary ruling.

The Related Reporting in this edition of IRIS plus covers rulings from the CJEU and from national courts. It gives an insight into recent developments in private copying and liability for service providers in the case of online infringement. Interesting cases of non-liability are also included.

The Zoom section focuses on the issue of cross-border access to online content. Francisco Cabrera and Sophie Valais give an overview of the most recent initiatives that have been taken at EU level, i.e. the “Licences for Europe” stakeholder dialogue and the public consultation on the review of EU copyright rules, both launched in 2013; they also look into the announcements made by the newly elected Commission regarding future programmes.

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