Monday, 23 October 2017

Another German decision warns against broad application of GS Media presumption for for-profit link providers

By  Eleonora Rosati 


           Visual map on linking after GS Media, available here
A few days ago this blog reported on a recent decision of the Regional Court of Hamburg that, similarly to another German judgment – this being the also recent ruling of the Federal Court of Justice (BGH) [here] – questioned or, at least, proposed a restrictive meaning and application of the recent decisions of the Court of Justice of the European Union (CJEU) on the right of communication to the public and linking to protected content under Article 3(1) of the InfoSoc Directive.

It appears, in particular, that it is the CJEU construction of prima facie liability for unauthorized linking as found in GS Media [Katposts here] – notably the presumption of knowledge applied to link providers with a profit-making intention (see my table on the right hand side) – to face resistance.

Thanks to a couple of German Katfriends, I have been made aware that there is a third recent decision that also shows an approach to linking and the GS Media presumption which is possibly different from the one envisaged by the CJEU.

It is once again a judgment (310 O 117/17) [also commented here] of the Regional Court of Hamburg, once again involving pug dog Loulou.

The new Hamburg decision

In a nutshell, in this case the Hamburg court held that there is no act of communication to the public within §§ 15(2) UrhG and 19a UrhG if a person who links to protected content without the relevant rightholder’s permission is unaware that such content is unlawful. 

In particular, even if the link provider has a profit-making intention, there should be no presumption that he had awareness that the content linked to was unlawful if he operates in a context in which it would be unreasonable to expect that checks are performed to ensure that the content linked to is (and remains) lawful.

In the case at issue, the defendant’s linking activities were performed algorithmically and, similarly to the other Hamburg decision, also in this instance the infringing content linked to was available on Amazon.de.
Loulou

The defendant had no actual awareness that the content linked to was unlawful, nor was its unlawful nature recognizable. A relevant aspect was also the fact that, to be able to offer products for sale on Amazon, merchants have to agree to the platform’s terms of use, including declaring that they own the copyright to the images displayed.


Scaling down GS Media

According to the court [para 67], the GS Media presumption of knowledge cannot be considered as indistinctly applicable: instead, it should be only relevant in situations in which the link provider/defendant can be expected to carry out the necessary checks to determine the status – lawful or unlawful – of the content linked to.

Paragraph 68 of the decision contains a direct scaling down of the CJEU approach in GS Media

The German court acknowledged that [at para 51] the CJEU seemingly mandated a generally applicable presumption for links posted out of profit. However, a conclusion of this kind would contradict what is stated at paragraph 34 of GS Media itself, ie that the assessment of whether a link provider can be liable under Article 3(1) of the InfoSoc Directive must be individualized and take account of several complementary criteria that “may, in different situations, be present to widely varying degrees”.

Loulou's
unauthorized
telephone case
According to the court, in the case at issue it would be “unreasonable” and “economically unjustifiable” to expect that the defendant carries out such checks in relation to each and every content (automatically) linked to, including content hosted on a platform like Amazon.

The defendant’s business model – including the fact that the content is not ‘incorporated’ to look as the defendant’s own content - is such that no specific searches for unlawfulness can be expected. Holding otherwise would not only be unreasonable, but also amount to an undue compression of the fundamental freedom to conduct a business, pursuant to Article 16 of the EU Charter of Fundamental Rights.

Conclusion

This is the third decision in a short timeframe that proposes a 'minimalist' reading of the GS Media presumption for for-profit link providers. 

In these cases the German courts, instead of holding the presumption rebutted in the specific instance considered (as it appears - or rather appeared? - to be the approach in GS Media), held against its applicability tout court, on grounds of reasonableness and by placing significant emphasis on the fundamental rights dimension. 

From the reading of these judgments, the fear that the relationship between copyright protection and freedom to conduct a business might be too unbalanced in favour of the former is acutely felt. This - together with considerations relating to the proper construction of the right of communication to the public, including the requirement of an individualized assessment - arguably supported the resulting outcome. 

Can TV formats be protected by copyright?

By Eleonora Rosati
The allegedly infringing TV gameshow
Can TV formats be protected by copyright? 

While this question has received an answer in the affirmative in a number of jurisdictions around the world [this blog recently reported on the latest judgment of the Italian Supreme Court to confirm eligibility for protection of this subject-matter under Italian law], under UK law things have been uncertain for a long time.

One of the reasons for such uncertainty is the outcome of the Opportunity Knocks case (Green v Broadcasting Corporation of New Zealand), in which a claim to the copyright in the format for a game show failed. However, it is important to recall that one of the principal reasons why the action was dismissed is that no scripts were available at trial and in any case they contained little more than general ideas and concepts.

Leading UK copyright commentaries like Copinger and Skone James have indeed highlighted how (§3.93) "[t]here is no reason in principle ... why a format should not be protectable as a dramatic work [under section 1(1)(a) and section 3 of the Copyright, Designs and Patents Act 1988 (CDPA)] if it contains a sufficient record of how the show is to be presented."

Last week a response in the sense of eligibility for copyright protection of TV formats under UK law also came from the High Court of England and Wales.

In Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch), the court held that a TV format can be potentially protected by copyright, although in the specific case the action failed.

Background

The action was brought by Banner Universal Motion Pictures (BUMP, a UK company), in its capacity as assignee of the rights to the Minute Winner format developed in 2003 by a Danish citizen, against - amongst others - a Swedish TV production company (Friday TV). 

The claimant submitted that, further to a 2005 meeting in Stockholm at which confidential information was disclosed, including the disclosure of catch-phrase “You have a minute to win it” [at the time when the action was brought in the UK Swedish court had already ruled that no confidential information had been disclosed; the High Court of England and Wales declared that the cause of action estoppel operated], Friday TV misused such information to develop a gameshow format: Minute to Win ItThis show first aired in the US in 2010 and was subsequently broadcast in the UK in 2011. Rights to Minute to Win It were sold in over 70 countries around the world.

Kat format
The Minute Winner format

The format of the claimant is described in the Minute Winner Document presented bto the court as follows:

"MINUTE WINNER
Mini-format Game show
Daily or weekly show.
Or short one minute between main programs.
Morning, Evening or Afternoon program.
One minute, or 30 minutes with several                                                                               winnings."

Minute Winner is further described as “a television program in which people are given one minute to win something. WHERE? The program takes place in a studio (and in location: street, shopping mall or unexpected at people's homes). The program is cheaper to produce on location, as it only requires a cameraman, soundman, a host and a stopwatch PRIZES [examples are provided in the rest of the format document]The prizes are sponsored by firms/companies in exchange with advertisements during the program."

The Minute Winner Document further adds that "The combination of luck and pure coincidence is a factor that would make people wish that one day they could be stopped on the street and be given a chance to win something on television."

As to showing times, the Document clarifies that "The program can be shown daily (optional) as a one-minute fill in, before or after a main program. Minute Winner can also be shown either as a morning program, afternoon program or evening access prime time program."

The Document also contains the following disclaimer:

"Concept created by Derek Banner/Bump Productions. Copyright 2003, all rights reserved. This format is protected under the international copyright law and intellectual property protection. It shall not be transmitted, exploited, copied produced, used, disclosed or distributed, in part or in its entirety, without permission from its owner."

BUMP submitted that copyright subsists in the Minute Winner Document as an original dramatic work under the CDPA. It did not submit that it was also a literary work, because such categories under UK law are mutually exclusive.

Originality

As regards originality, Snowden J recalled that – further to SAS v WPL [of course informed by relevant case law of the Court of Justice of the European Union which arguably mandates something more than the just “sufficient skill, labour or effort” traditionally indicated by UK courts since University of London Press], what is required is “that the work must be an expression of the author's own intellectual creation … This does not, however, mean that every constituent aspect of a work must be original. The work must be taken as a whole, and can include parts that are neither novel nor ingenious.”

Notion of dramatic work

The court then recalled that, although the expression ‘dramatic work’ is not defined in the statute, it must be given its ordinary meaning. This, in Norowzian v Arks Ltd (No 2) was said to be that of “a work of action, with or without words or music, which is capable of being performed before an audience."

According to Snowden J, while the unauthorized re-enactment of a recorded episode of a TV game show or quiz show would likely amount to copyright infringement, what was at stake in this case was NOT the single episodes of Minute Winner, since the show was never produced.


Dramatic Kat
The question was rather “whether what is usually referred to as the "format" of a television game show or quiz show is separately capable of being protected by the law of copyright.” 

The judge noted that his is a question that has been considered in comparatively few cases.

A format as a protectable dramatic work

Snowden J held that:

“it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work. This is so, even though it is inherent in the concept of a genuine game or quiz that the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance; and hence that the show will contain elements of spontaneity and events that change from episode to episode.” [para 43]

Requirements for protection

What is required for a format to be protected is explained at para 44 of the decision:

“copyright protection will not subsist unless, as a minimum, (i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.”

The format at issue

Having affirmed the potential eligibility for copyright protection of TV formats, Snowden J however excluded that Minute Winner could be protected. In fact,

“tested against any of those requirements [indicated above], there is no realistic prospect of BUMP persuading a court that the contents of the Minute Winner Document qualified for copyright protection. In my view, those contents are both very unclear and lacking in specifics, and even taken together they did not identify or prescribe anything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form. The features were, in truth, commonplace and indistinguishable from the features of many other game shows.” [para 46]

Breach of confidence and passing off

The court also dismissed the claims for breach of confidence (for the reason indicated above) and passing off, the latter on grounds that the claimant did not possess the necessary goodwill [including actual customers in the UK, as per the Supreme Court decision in Starbucks] to succeed in its claim.

Conclusion

This decision sheds light on an area of UK copyright that has remained uncertain for a long time, also due to the rigid and closed system of categories envisaged by the CDPA.

However, as the outcome of the case confirms, wannabe holders of copyright in TV formats must pay substantial attention when drafting relevant documents, and provide as many details and information as possible. Another crucial aspect when it comes to potentially commercially valuable works like TV formats is to draft and rely on robust non-disclosure agreements, also to offset the fact that relevant documents should be sufficiently detailed.


Posted By Eleonora Rosati to The IPKat

Friday, 20 October 2017

The Almost-Halloween Copycat!


Let’s start with an event!


“Crisis in Copyright Policy: How the digital monopolies have cornered culture and what it means for all of us”

With Jonathan Taplin, University of Southern California and author of Move Fast and Break Things, and Chaired by Professor Sir Robin Jacob

It’s on Monday, 27 November 2017, from 18:00 to 19:30, and it’s followed by a reception!

The place to be: UCL Cruciform Building, Gower Street, London WC1E 6BT

You can book your place here!

A Learned society is answering questions!

ALAI (Association Littéraire et Artistique Internationale, International Literary and Artistic Association) learned recently that EU Member States have been asking questions to the Legal Service of the Council regarding Article 13 and Recital 38 of the Commission Proposal for a Directive on copyright in the Digital Single Market.

 ALAI is answering four questions about this text. You can find their further reflections here!

The family of Albert Namatjira recover his copyrights after 30 years of battle!

It was an injustice, and it has been resolved more than 30 years after the beginning of the battle by the family of Albert Namatjira! In Australia, it was the longest copyright battle of the country!

The outstanding artist's has been denied any rights or revenue from the work of the Aboriginal painter for more than 30 years. The painter is recognised as Australia’s greatest indigenous painter, and the first to work in the western tradition.

One of Albert Namatjira’s extraordinary paintings

Small facts: one of its paintings was gifted to the Queen for her 21st birthday in 1947, and he was the first indigenous artist to receive international acclaim.

Before he died, he sold part of the copyright to his friend John Brackenreg of Legend Press in 1957. Two years later, he died and gave the rest of his copyright to his wife Robina and his family. Thing is: its full copyright was sold to Legend Press for $8500 by the administration of his will was handed to the Northern Territory public trustee! And if it wasn’t enough, Legend Press put restrictions on the use of Namatjira’s paintings and images and the royalties to his family dried up!

Eight years ago, the family began the battle to recover Namatjira copyrights, and they even met the Queen!

Thanks to the good will of Dick Smith, a multimillionaire, who shared its connection with the family, which was able to rich one of the current owners of Legend Press. Surprise: after a 15 minutes’ chat, Mr Philip Brackenreg gave back the right to the Namatjira Legacy Trust for $1!

A horrific tale - but happy ending to this story!

Missing data: Spinrilla is trying to have copyright case dismissed!

Do you know Spinrilla? It’s an app where you can access thousands of free hip-hop mixtapes in your pocket. Doesn’t it sound cool?

Problem: the application allows people to upload and listen to unofficial mixtapes, which leads tooooo… yes, you got it, copyright infringement!

Thing is: they are infringing copyrights according to the US record industry! A lawsuit is filed against the hip-hop mixtape application by the US record industry, and things are going sour: Spinrilla has requested that the copyright infringement be dismissed on the basis that the major record company failed to hand over crucial data relating to the allegedly infringing tracks at the heart of the case. For Spinrilla, by not providing this data, the label hindered its ability to mount a defence, leaving the company “severely prejudiced”.

According to Spinrilla: “It is without exaggeration to say that by hiding the RIAA spreadsheets and that underlying data, defendants have been severely prejudiced. The complaint should be dismissed with prejudice and, if it is, plaintiffs can only blame themselves”


It seems a somewhat ambitious bid to have the record industry’s copyright case thrown out of court. But we’ll nevertheless await with interest to see how the judge overseeing the case responds.

This CopyKat from Lolita Huber-Froment

Muhammad Ali Enterprises Gives Lip to Fox Over Super Bowl Video


Muhammad Ali Enterprises, which owns the trademark rights, copyrights, right of publicity, and all other intellectual property rights of Muhammad Ali, filed on October 10 a false endorsement and right of publicity suit against Fox in the United States District Court for the Northern District of Illinois. The case is Muhammad Ali Enterprises LLC v. Fox Broadcasting Company, 1:17-cv-07273.



The complaint alleges that Fox used Muhammad Ali’s identity without permission for commercial purposes in a three-minute promotional video that the television network broadcasted just before the start of the 2017 Super Bowl, which was also broadcasted by Fox.



The complaint further explains that, during his lifetime, Muhammad Ali endorsed “carefully selected products and services” in order to “enhanc[e] and maint[ain] the value of his legacy and endorsements” and thus was able to financially profit from his identity and persona, while maintaining his integrity.



Muhammad Ali’s most famous nicknames were The Greatest, The Louisville Lip and The Champ. The complaint relates why Muhammad Ali was indeed “The Greatest.” His accomplishments include an Olympic gold medal, several heavyweight titles, and even two Grammy Award nominations. He was awarded the Presidential Medal of Freedom in 2005, and was a human rights champion, speaking fiercely about racial prejudice, a theme unfortunately still in the headlines. The BBC named him the Sports Personality of the Century.



The Fox video had “greatness” as its theme. The narrator urged viewers to watch it to see “what it means to be the greatest.” It showed the back of a boxer entering a tunnel, going to the ring, wearing a robe with “The Greatest” and “The Lip,” two of Muhammad Ali’s nicknames, written on the back. The boxer was not Muhammad Ali, but the video intersected real footage of the boxing legend with images of a boxer wearing a robe with Muhammad Ali’s nicknames.



Plaintiff claims that such unauthorized use violates Section 43(a) of the Lanham Act as the video is likely to cause confusion to consumers as to the affiliation of Fox with Muhammad Ali, and also claims that this unauthorized use of Muhammad Ali’s likeness is a violation of his right of publicity as protected by the Illinois Right of Publicity Act (IRPA) (765 Ill. Comp. Stat. 1075/1 to 1075/60°). The Act replaced the Illinois common-law tort of appropriation of likeness when it entered into force on January 1, 1999. Muhammed Ali died in 2016, but the IRPA extends its protection to individuals for 50 years after the date of their death.


IRPA defines “commercial purposes” as “public use or holding out of an individual's identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising”. It could be argued that the video was used to promote the broadcast of the 2017 Super Bowl. It showed images of famous football players, also entering a tunnel, to go to the field. It ended by displaying the Super Bowl LI logo – it was the 51st Super Bowl – and ended with a screen showing the name of Muhammad Ali with his year of birth and of death.



The identity of a person under IRPA can be “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.” The video made use of Muhammad Ali’s identity, by using the nicknames on the back of the robe, by making direct references to Mohammad Ali, by using of “The Greatest” throughout the video.

Fox is likely to claim that IRPA does not apply if the use of identity has been made to “portray, describe, or impersonate that individual [on]…television, or other audio, visual, or audio-visual work, provided [it]…does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services.”



Therefore, whether the video is or is not an advertisement for the Super Bowl is likely to be at the center of the debate between the parties. Plaintiff claims that the video is “far more than a tribute to Muhammad Ali”, but that instead it “uses Ali to define greatness…and thus to define the Super Bowl as “greatness” too.”



Fox may also assert a First Amendment defense, claiming that the video is an artistic and creative expression protected by speech, meant to be an homage to a sports legend and providing news and information to the public.



This case will probably settle out of court and is not likely to go the distance to trial.

Thursday, 19 October 2017

Recommendation on measures to safeguard fundamental rights and the open internet in the framework of the EU copyright reform

Further to the release of the European Commission’s Proposal for a Directive on Copyright in the Digital Single Market, the discussion has focused on a number of aspects. The proposal to remedy the so called ‘value gap’ (Article 13) [Katposts here] has attracted significant attention and commentary.

Together with a group of scholars active in copyright issues, Professor Martin Senftleben (Vrije Universiteit Amsterdam) has published a Recommendation on measures to safeguard fundamental rights and the open internet in the framework of the EU copyright reform.

Professor Senftleben explains more in detail the content of the proposal.

Here’s what he writes:

 Article 13 of the Proposed Directive on Copyright in the Digital Single Market (DSMD) and the accompanying Recital 38 are amongst the most controversial parts of the European Commission’s copyright reform package. Several Members States (Belgium, the Czech Republic, Finland, Hungary, Ireland, the Netherlands [here] and Germany [here]) have submitted questions seeking clarification on aspects that are essential to the guarantee of fundamental rights in the EU and to the future of the Internet as an open communication medium. 

A closer analysis of these questions in the light of jurisprudence of the Court of Justice of the European Union (CJEU) shows that the measures contemplated in Article 13 DSMD can hardly be deemed compatible with the fundamental rights and freedoms guaranteed under Articles 8, 11 and 16 of the EU Charter of Fundamental Rights. The application of filtering systems that would result from the adoption of Article 13 DSMD would place a disproportionate burden on platform providers, in particular small and medium-sized operators, and lead to the systematic screening of personal data, even in cases where no infringing content is uploaded. The filtering systems would also deprive users of the room for freedom of expression that follows from statutory copyright exceptions, in particular the quotation right (Article 5(3)(d) of the InfoSoc Directive) and the right to parody (Article 5(3)(k) of the InfoSoc Directive).

The adoption of Recital 38 DSMD would moreover lead to a remarkable restriction of eligibility for the liability privilege following from Article 14 of the E-Commerce Directive. Recital 38 DSMD does not adequately reflect the current status quo in the area of the safe harbour for hosting laid down by Article 14 E-Commerce Directive. Instead, it takes the assessment criteria of “promoting” and “optimising the presentation” of user-generated content out of the specific context of the L’Oréal/eBay CJEU decision. The general requirement of “knowledge of, or control over” infringing user-generated content is missing. In the absence of any reference to this central requirement, Recital 38 DSMD is incomplete and fails to draw an accurate picture of the current conceptual contours of the safe harbour for hosting.

Furthermore, there can be little doubt that according to the CJEU, Article 15 of the E-Commerce Directive is fully applicable to user-generated content platforms and intended to shield these platforms from general monitoring obligations. The Court’s jurisprudence shows clearly that an obligation to filter any information uploaded to the server of a platform hosting user-generated content would lead to a prohibited general monitoring obligation and be incompatible with Article 15 of the E-Commerce Directive.

In general, the Commission Proposal and subsequent Council Presidency Compromise Proposals confuse and mix different legal questions by bringing together the issue of the scope of the safe harbour for hosting under Article 14(1) of the E-Commerce Directive, and the issue of whether (and when) platform providers themselves carry out an act of communication to the public and fulfil the requirements of Article 3(1) of the InfoSoc Directive.

Looking for a safe harbour
Considering the criteria which the CJEU developed in the context of Article 3(1) of the InfoSoc Directive, it becomes moreover apparent that the mere act of storing and providing access to the public is not sufficient to establish copyright infringement. Recital 38 would dismiss additional infringement criteria that have evolved in the jurisprudence of the Court. Because of the ambiguous wording of Recital 38 DSMD, there is a real risk of modifying the notion of “communication to the public” considerably.

These findings shed light on the need to clarify service provider immunity instead of further complicating the legal assessment criteria. A further clarification of applicable rules should extend the principle that is already reflected in the EU acquis, namely that providers are not liable for users’ actions which they cannot reasonably be expected to know and control (Articles 12 to 14 of the E-Commerce Directive). A further clarification of this rule is advisable to pave the way for a uniform application of service provider immunity throughout the internal market. In the interest of legal certainty and a higher level of harmonization, a well-structured European legislative design of the “notice and takedown” procedure should be introduced, accompanied by an appropriate “counter notice” procedure.

In addition, it would be consistent with the existing acquis to introduce a new use privilege in favour of the creation of content remixes and mash-ups by users and the further dissemination of these remixes and mash-ups on online platforms. As a countermove, online platforms with user-uploaded content could be responsible for the payment of fair compensation. They could either pass on these additional costs to their users, or use a part of their advertising income to finance the payment of fair compensation. To generate an additional revenue stream for authors and performers, this alternative solution is clearly preferable. It does not encroach upon fundamental rights and freedoms, and leaves intact the safe harbour for hosting in Article 14 of the E-Commerce Directive.”

Tuesday, 17 October 2017

CEIPI Opinion on copyright limitations' reform in the European Digital Single Market

The Centre for International Intellectual Property Studies (CEIPI) has just published a position paper on the proposed reform of copyright exceptions and limitations in the European Digital Single Market (DSM).
The European Commission’s planned copyright reform proposes to adapt EU law to the challenges emerging in the Digital Single Market (DSM)’s. The CEIPI Opinion does support the plan to develop a strategy to take copyright into the 21st century and make it functional to the DSM, especially by addressing important needs with regard to access to copyrighted works in order to boost creativity and innovation, promoting cumulative research and sharing of knowledge-based resources. In particular, new mandatory exceptions and limitations should contribute to improving the digital environment’s creative ecosystem. The introduction of mandatory exceptions and limitations is a welcome, innovative arrangement that promotes harmonization and, therefore, the DSM, says CEIPI. Obviously, focus on facilitation of research, teaching and preservation of cultural heritage stands as a primary need for the promotion of the DSM. However, the goal of the proposal of lowering barriers to research and innovation in the EU DSM should be pursued more decisively by expanding the reform’s scope. This reform should be an opportunity to consider also additional exceptions and limitations that are crucial in a knowledge based society and to reflect on the future design of an opening clause to address uses that are not yet covered by existing exceptions and limitations but are justified by important public interest rationales and fundamental rights such as freedom of expression and the right to information. Moreover, a true harmonisation of the DSM will only be achieved if all limitations and exceptions provided in past EU copyright instruments are declared mandatory and have thus to be implemented as such in national law.


In its Opinion, CEIPI would like to provide a preliminary assessment of the proposed introduction of new exceptions and limitations by drawing attention to selected aspects of the reform and considering room for improvement where necessary. In particular, and inter alia, this CEIPI Opinion highlights that:

(1) Given the uncertainties that researchers face in applying present exceptions and limitations to Text and Data Mining (TDM), a new mandatory exception might drive innovation and bridge the gap with other jurisdictions. However, the TDM exception should not be limited to research organisations but extended to all those enjoying lawful access to underlying mined materials—as the right to read should be the right to mine—especially in order not to cripple research from start-ups and independent researchers.

(2) The new mandatory teaching exception does promote the DSM agenda by facilitating digital and cross-border teaching activities. The introduction of a voluntary scheme to limit the exception’s applicability—if an adequate licence is easily available on the market—would nonetheless work against harmonization, undermining positive externalities of the mandatory approach. Also, the scope of the exception should be expanded in order to match with the teaching and research exception included in Directive 2001/29/EC.

(3) The proposed reform emphasises the role of European cultural heritage in the DSM through the introduction of an exception for its preservation. The new exception expands previous voluntary exceptions to facilitate mass preservation projects and allow reproduction in any format and medium including format-shifting and digital copying. Possibly, beneficiaries should also include educational institutions. Again, the new exception should reach also objects not permanently in the collection of beneficiaries as this limitation might stifle collaboration efforts between Cultural Heritage Institutions (CHIs) to share artworks within the DSM.
The CEIPI Opinion is available here.