Selected Copyright and Related Rights (IPRs) Issues.

The Interfaces Between IPRs and PSI Re-Use (or Open Data?).

Cristiana SappaProject Manager, LAPSI

Nexa Research Center for Internet and Society

Introductory RemarksSubject Matter: the PSI Goldmine

WORKS OF PSBs EMPLOYEES AND COMMISSIONED BY PSBs

Such as: Reports, green papers, surveys

Mere information

data

Works collected in museums

maps

datasets

Works collected in libraries

OFFICIAL ACTSOFFICIAL ACTS (Texts):Laws, Regulations,

Cases, Decrees, Databases?

Works Collected

by broadcasters

Introductory Remarks: Starting Point

Tension between Re-Use (and Open Data) and IPRs

Introductory RemarksObjectives of Directive 2003/98/EC

Enhance Re-Use of PSI

… and respect the existing protected interests, such as those protected by Intellectual Property Rights - IPRs - (see recitals 24,22 and art. 1.5 D. 2003/98/EC)

Introductory RemarksSome First Hints on the Legal Framework

Main References to IPRs in D. 2003/98/EC and in the Proposal of 12.XII.2011:

- TRIPs Agreement (exclusive rights – implications: availability and price determination)

- Art. 17 Charter of Nice on Fundamental Rights

- Art. 1, 2 lett b) : (The Directive shall not apply to) Documents for which third parties hold IPRs (see also recital 7 of the proposal)

- Proposal: R.8 and Art. 1, 5 (adde in fine): The provisions of this Directive are without prejudice to the economic or moral rights that employees may enjoy under national rules

- Proposal: R.12 and Art. 6.2 (adde new incipit) : In exceptional cases, in particular where PSBs generate a substantial part of their operating costs relating to the performance of their public service tasks from the exploitation of their IPRs, PSBs may be allowed to charge for the re-use over and above the marginal costs, according to objective criteria, ….

Introductory RemarksSome First Hints on the Legal Framework

Main References to IPRs of in D. 2003/98/EC and in the Proposal of 12.XII.2011 (in particular on cultural institutions):

- Proposal: art. 1.2 on delimitation of the inclusion. - Proposal: R.7 (in fine): if a third party was the initial owner of a

document held by libraries (including university libraries), museums and archives that is still protected by intellectual property rights, that document should, for the purpose of this Directive, be considered as a document for which third parties hold IPRs.

- Proposal: R.12 and Art. 6.3 (adde new incipit) : …Libraries, museums and archives may charge over and above the marginal costs for the re-use of documents they hold.

Introductory RemarksOverall Objectives

Establish Conditions for fostering the internal market and the economic growth (and the

related social development)

How to reach this? Enhance Re-Use of PSI

Open Data (PSI?)High level of IPRs protection

What do we have to do? (I)

Identify areas of tension - between Re-Use (and Open Data) and IPRs –

And1)Suggest ideal solutions (=changes)

2)Adopt a more cautious approach (=avoid creating further problems)

Identified Hypothesis of IPRs-PSI Interfaces I. We can easily re-use PSI and works NOT covered by IPRs

- Mere Information (in particular if not included into a protectable database);- Works in the Public Domain; - Official Acts (?)

II. We may easily re-use works covered by IPRs WHEN the PSB or the Public Undertaking making these works available HOLDS the IPRs needed for their re-use - Works of PSBs Employees (?) - Works Commissioned by PSBs (?)- Charging principles

III. We cannot easily re-use PSI covered by IPRs belonging to third parties. - Works possessed by PSBs + see II + see current doubts on I.

A PSI Minefield?

Works collected in libraries

maps

WORKS OF PSBs EMPLOYEES AND COMMISSIONED BY PSBs Such as: reports, green papers,

surveys, databases

Works collected in museums

datasets

PD

data

Mere information

OFFICIAL TEXTS (OFFICIAL TEXTS (And ActsAnd Acts?)?) :Laws, Regulations,

Cases Decrees,Some Databases?

PD

data

Mere information

Databasesdata

Some databases?

Works of

broadcasters

data

I. Are there IPRs on Official Acts? Definition and Legal Framework

(Reference to CS presentation in Brussels)

1. What is an Official Act?

2. Is an Official Act protectable? Often National norms exclude copyright protection for official

texts http://etherpad.nexacenter.org/copyrightPSBsWHY?

EU norms (in particular art. 5 of Directive 2001/29) contain exception as to the content of copyright and some related rights

International Norms: Art. 2.4 CUB (and Art. 2bis CUB) leaves MS free to decide

I. Are There IPRs on Official Acts?Problems, Implications, What to do?

1. As to the subject matter:

A) official texts: Fast circulation of information prevails on privatization of benefits related to the exploitation of works.

B) official acts:?

2. As to related rights:?

(3. Are current national frameworks in compliance with EU norms?)

WHAT TO DO? As to 1.: is one single notion existing? the broader the better. But current national

norms and cases → no fully achieved harmonization

As to 1.B): Adopt a broad interpretation (no strict interpretation – no discrimination)

As to 2.: broad interpretation would and should be the solution for civil law countries. However a) we have common law countries in the EU; b) legal uncertainty. Therefore amendement of PSI Directive on Sui Generis Database Protection

II. Do PSBs Always Hold IPRs on the Works of Their Employees and on the Works They Commission?

(This is about INPUT licenses)

Framework: National rules only: often IPRs (which ones?) are held (for how long?) by the PSBs, but not necessarily.

Note on PPP: who is owning what?

Implications: No legal certainty, No harmonization

→ Art. 1.5 adde in fine of the proposal 12.XII.2011

II. PSBs and Public Undertakings Do not Always Hold IPRs on the Works of Their

Employees and on the Works They Commission

(In Brussels it was suggested to)WHAT TO DO (for enabling PSBs to become right owners)? Identify an appropriate forum/legal tool for introducing a general presumption

stating that PSBs:

- respect the moral rights of creators

- hold the economic IPRs on the works of their employees and the work they commissioned

- for the broadest use and re-use- for the entire copyright term (note on the Italian art. 29 Copyright Act).

(…Still: R.12, art. 6.2 and 3 of the Proposal)

II. PSBs Do not Always Hold IPRs on the Works of Their Employees and on the Works

They Commission HOWEVER:

1. This has to do with right ownership principles and contract interpretation. Both these issues are related to State sovereignity. Therefore:

a) Possible reluctancy for any interferenceb)EU competence on this?2. Are PSBs ready to bear the related costs of

assignments? Is it worthy?

III. How to Enable Re-Use of PSI Covered by Third Parties IPRs?

(This may be on INPUT licenses)- Recital 7 -- In line with APPSI, Ordnance Survey decision.

The solution has to be found in the Copyright legal framework: - Internal limits: Broad interpretation of existing copyright exceptions and

limitations (does not seem enough for enabling intensive digital re-uses)!

- External limits:

a) ex post : Competition law measures (?)

b) ex ante: Interpretation of Contracts: Presumption of IPRs transfer when the PSI is possessed by a specific PSB. This does not seem possible so far (so far only?). See references to the interests of employees in the Proposal)

Note on Cultural Institutions (see R.7 of the Proposal)

Remarks and Questions?(Very Welcome!!)

Thank you!

cristiana.sappa@unito.it