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EU Digital Copyright Law and the End-User - Giuseppe Mazziotti

EU Digital Copyright Law and the End-User

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Published: 26th February 2008
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This book presents a thorough exploration of the legal framework of EU digital copyright law from the perspective of the end-user. It provides a detailed examination of the implications that the spectacular rise of this new actor creates for the interplay between the EU copyright system and human rights law, competition law and other important policies contained in the EC Treaty. This comprehensive, book is crucial reading for lawyers, policymakers and academics.

From the reviews:

"This book by Giuseppe Mazziotti draws on the contents of his PhD thesis. In general, it considers the intersection between copyright law and digital technologies. ... The formula of the book is uncomplicated yet effective. ... it is well sustained by a wide-ranging bibliography and reasonable index. ... is a worthy recommendation for law libraries. ... it will interest students and academics involved with copyright law and technological developments. It will also be of great interest for copyright lawmakers in the European Union [...]." (Ghufran Sukkaryeh, European Intellectual Property Review, Vol. 30 (II), 2008)

"[...] useful [...] for anyone wanting to understand the workings and implications of the EU InfoSoc Directive, in effect Europe's DMCA. More important, Mazziotti points out that the InfoSoc Directive and the application of the 3-step test for exceptions have potentially gutted certain rights to make a private copy under the European private copying schema. Instead, he argues for more robust user-rights for both transformative and non-transformative uses. I support this conclusion." (David Lametti, http://www.cipp.mcgill.ca/blog/category/entertainment-law/)

"The book is clearly written and thus provides well-structured argumentation. ... Mazziotti makes recommendations on how the copyright law should be developed. ... Mazziotti's book offers an interesting approach to the European copyright debate. The author is well-informed and is able to skillfully describe the differences between different views." (Niklas Bruun, IPRinfo, Issue 5, 2009)

List of abbreviationsp. XIX
Copyright and Digitisationp. 1
Introductionp. 3
The research questionp. 3
Terminologyp. 4
The value of transformative and non-transformative uses in the copyright systemp. 6
New kinds of transformative usep. 9
Non-transformative usep. 10
The structure of the bookp. 12
The impact of digitisation on the desirability of copyright exceptionsp. 15
An economics-based introduction to the book problemp. 15
Works of intellect as public goodsp. 15
From imperfect to perfect excludabilityp. 17
Perfect lock-up of copyrighted informationp. 20
Legal consequencesp. 22
In search of a public policy without free access to copyrighted worksp. 23
DRM and the economics of copyright exceptionsp. 27
Transaction costs and the market failure behind private copyingp. 27
Why the market failure rationale behind private copying is losing its significancep. 28
The persistence of "bargaining breakdown" problemsp. 30
Which justifications are affected by the implementation of DRM?p. 33
Privacy concernsp. 34
The legal framework: copyright exceptions under EU lawp. 36
Summaryp. 38
Eu Digital Copyright Law from the End-User Perspectivep. 41
Copyright harmonisation according to technological dictatesp. 43
Introductionp. 43
Legal basis and objectives of copyright harmonisation in the EUp. 43
The progressive development of a Community copyright policyp. 44
Free movement of goods and the exhaustion principlep. 44
National copyright protection under Article 30 of the EC Treatyp. 45
Copyright legislation as a tool fostering market integrationp. 46
Legal basis and specific objectives of the InfoSoc Directivep. 49
The legal basis of Article 95 of the EC Treatyp. 49
The objectives of the 1995 Green Paperp. 50
The objective to implement the 1996 WIPO Copyright Treatyp. 51
The re-definition of the copyright scopep. 52
The national dimension of copyright's subject matterp. 52
The absence of a single standard of originalityp. 53
Territorial restrictions in copyright managementp. 54
The overstretched exclusive right of digital reproductionp. 58
The notion of reproduction under the EC Software Directivep. 58
Exemption of certain software reproductions from copyright protectionp. 60
The exclusive right of reproduction under the InfoSoc Directivep. 61
The exclusive right of communication to the publicp. 65
The right of distribution of tangible copyrighted goodsp. 66
Intangible copyrighted goods as servicesp. 67
Anti-circumvention law in defence of technological protection measuresp. 69
The provisions of Articles 6 and 7 of the InfoSoc Directivep. 69
What "access right" in the EU?p. 71
Discrepancies in the national implementation of anti-circumvention lawp. 74
Summaryp. 76
The legal treatment of copyright exceptions under secondary EU lawp. 77
Introduction: from vertical to horizontal exceptionsp. 77
The introduction of the three-step test under EU lawp. 80
The three-step test under international lawp. 80
The transposition of the test into EU lawp. 84
The new requirement of legal access at the expense of lawful usep. 86
The InfoSoc Directive's exhaustive list of copyright exceptionsp. 89
Non-transformative use: private copyingp. 89
Transformative usesp. 93
Safety nets for copyright exceptions against DRM systemsp. 94
Obligations created by Article 6(4)p. 95
The narrow scope of Member States' obligationsp. 96
Consequences of the Article 6(4) systemp. 98
The model interface between copyright, contract and technical measures of the Software Directivep. 100
Monitoring systems on the effective enforcement of exceptionsp. 102
National exceptions after the InfoSoc Directive: a brief overviewp. 104
Preliminary remarksp. 104
What national exceptions, in the concrete?p. 105
Private copyingp. 105
Transformative usep. 107
A few examples of extension of the statutory protection of copyright exceptionsp. 108
Summaryp. 109
Digital copyright law: general policy issues under the EC Treatyp. 111
Introductionp. 111
The failure of the InfoSoc Directive in the pursuit of market integrationp. 113
Fragmentation on markets for tangible and intangible goodsp. 114
Inconsistency with Article 95 of the EC Treatyp. 115
The clash with Member States' cultural policiesp. 118
The deadlock of national copyright exceptionsp. 119
Article 151(4) of the EC Treaty and national copyright exceptionsp. 119
End-use licences and EU consumer contract law: a neglected intersectionp. 120
The absence of consumer protection measures under digital copyright lawp. 121
Consumer protection under EU private international lawp. 121
Consumer contract lawp. 123
A brief comparison between U.S. and EU contract lawsp. 123
Duties of transparency in the EU Distance Contract Directivep. 126
Overriding copyright exceptions as an unfair commercial practice?p. 129
The end-user's information right against technical restrictionsp. 130
Conclusive remarks on consumer protectionp. 132
Summaryp. 133
Unsettled Issuesp. 135
Implications of sharing copyrighted works on the Internetp. 137
Introductionp. 137
End-user liability: the United Statesp. 138
The birth of file-sharing technologiesp. 138
File-sharing under the U.S. fair use doctrinep. 139
Purpose and character of file-sharingp. 140
Nature and portion of the work usedp. 142
Effect of file-sharing on the market for copyrighted worksp. 142
End-user liability: the European Unionp. 143
Peer-to-peer downloads under the exception of private copyingp. 143
Peer-to-peer networks as a lawful source of unauthorised copyrighted works?p. 147
Unauthorised downloads under the three-step testp. 149
Peer-to-peer software providers' liability: the United Statesp. 152
The U.S. case lawp. 153
The Napster casep. 154
The Aimster casep. 155
The Grokster casep. 156
How consideration of non-infringing uses has an impact on indirect liabilityp. 158
Findings from the U.S. case lawp. 162
Peer-to-peer software providers' liability: the European Unionp. 162
Copyright liability in the Kazaa and BitTorrent casesp. 163
Direct liabilityp. 164
Indirect liabilityp. 164
Possible technology's restrictions under Article 8 of the EU Intellectual Property Rights Enforcement Directivep. 166
Indirect liability under the principle of due carep. 168
Duties of care on the Internet after the E-Commerce Directivep. 168
Duties of care upon ISPs and network operatorsp. 169
Duties of care upon peer-to-peer software providersp. 172
Findings from EU law and from the national case lawp. 174
Summaryp. 175
Freedom of use vs. DRM Technologyp. 179
Introductionp. 179
DRM technology under EU lawp. 180
Legal basis for the protection of DRM technologyp. 180
From an ex post to an ex ante determination of fairnessp. 181
DRM and the EU ambiguous system of copyright exceptionsp. 182
Consequences of the condition of legal access to DRM-protected worksp. 183
The European Commission's view of DRM technologyp. 186
The 2004 Communication on copyright managementp. 186
The main Commission's objectivesp. 187
Specific issues raised by DRM technology: Interoperabilityp. 189
DRM systems as copyright-protected computer programmesp. 190
Copyright vs. interoperability: the case of Apple's DRM systemp. 190
The example of new pro-interoperability legislation in Francep. 193
Copyright protection and EU interoperability policyp. 196
Restriction of private copyingp. 200
The policy option of preserving private copying notwithstanding DRMp. 200
The Mulholland Drive case in France: does a right of private copying exist?p. 201
May private copying of copy-protected works be compatible with the three-step test?p. 205
The role of national law in the preservation of digital private copyingp. 210
Restriction of transformative usesp. 215
May DRM technology address cumulative creativity and innovation?p. 215
Policy options for the accommodation of cumulative creativityp. 219
Creating an exception of fair circumventionp. 220
Creating a user rights management infrastructurep. 224
Summaryp. 227
Working Solutions in the Eu Copyright Systemp. 231
Copyright policy alternatives for preserving end-user freedom of expression and informationp. 233
Addressing the conflict between copyright and freedom of expressionp. 233
The legal value of Article 10 of the ECHRp. 233
Copyright vs. free expressionp. 235
Restrictions on freedom of communication over peer-to-peer networksp. 239
Peer-to-peer networking and free communicationp. 239
How copyleft licences increase the magnitude of free informationp. 241
EU copyright enforcement policy in respect of file-sharingp. 245
Targeting copyright enforcement at individualsp. 246
The United Statesp. 246
The European Unionp. 248
Why this option would be cost-ineffective and short-sightedp. 251
Copyright levies to compensate creatorsp. 252
The 'Fisher-Netanel' proposal of a non-commercial use levy systemp. 253
Costs and benefits of a copyright levy systemp. 256
Why this policy option does not fit EU digital copyright lawp. 258
Mandatory collective administration of online exclusive rightsp. 260
Is mandatory collective management a legitimate policy option?p. 261
Mandatory collective management, international law and the acquis communautaire on copyright entitlementsp. 263
Seeking complementarity between file-sharing and copyright-protecting technologiesp. 268
Mandating the adoption of copyright-protecting technologiesp. 269
Re-design of peer-to-peer technologyp. 269
Adoption of filtering technologiesp. 271
On the suitable function of DRM systems and fingerprintsp. 272
Advantages of this policy optionp. 274
The adverse impact of current DRM technology on free usesp. 276
Collision with the principle of freedom of expressionp. 277
Chilling effects on follow-on uses: a user rights management infrastructure as a possible way outp. 278
Summaryp. 282
Conclusion: towards a better EU copyright lawp. 285
Introductionp. 285
Creating a user rights infrastructurep. 285
Legal protection of technical measures should follow copyright lawp. 286
Replacing copyright exceptions by a law of users' rightsp. 287
Elements of a user rights management infrastructurep. 292
Implementation of the 'fair use by design' requirementp. 292
Implementation of a mixed user rights infrastructurep. 293
A single EU interoperability policy for DRM technologyp. 297
Re-adjusting the three-step testp. 302
The flawed function of Article 5(5) under the InfoSoc Directivep. 303
Suitable revision of the function of the test inside the InfoSoc Directivep. 305
Summaryp. 307
Appendixp. 311
Digital Rights Management: The Technological Scenariop. 313
Examples of National Transposition of Article 6(4) of the InfoSoc Directivep. 325
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society: (Official Journal L 167, 22.06.2001, p.10)p. 333
Reference Listp. 349
Indexp. 367
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9783540759843
ISBN-10: 3540759840
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 374
Published: 26th February 2008
Publisher: Springer-Verlag Berlin and Heidelberg Gmbh & Co. Kg
Country of Publication: DE
Dimensions (cm): 23.5 x 15.5  x 3.18
Weight (kg): 1.61