Wittem project

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The Wittem project is a project launched in 2002 by several European copyright scholars to develop a common European copyright law . On April 26, 2010, the group of authors presented their European Copyright Code to the public. The draft was created against the background of a so far only selective legal standardization in the European Union in the field of copyright. The Wittem Group's proposals are the subject of controversial discussion among experts.

history

The Wittem project emerged from a work project within the framework of the Dutch government's research program ITeR ( Informatietechnologie enrecht , German “Informationstechnik und Recht”), which was carried out by the three Dutch universities of Nijmegen , Amsterdam and Leiden . The original aim of this project was to increase the consistency and transparency of legal regulations in Europe in the field of intellectual property ; At a working meeting in Wittem in 2003, those involved in the project decided to focus their work on the formulation of basic principles of European copyright law and their writing down in a code .

The project managers - university professors Antoon Quaedvlieg (Radboud University Nijmegen), P. Bernt Hugenholtz (University of Amsterdam) and Dirk Visser (University of Leiden) - invited other scientists to participate. The Drafting Committee ( drafting committee ), of which the European Copyright Code was drafted, finally included, in addition to the three founders of the professors Lionel Bently (Center for Intellectual Property and Information Law, University of Cambridge ), Thomas Dreier (Institute for Information and Business Law , University of Karlsruhe ), Reto M. Hilty (Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich) and Alain Strowel ( Facultés Universitaires Saint-Louis , Brussels). In addition, an advisory board was ( advisory board ) formed which was involved in the discussions. In addition, other experts were repeatedly called in for the discussions on individual topics.

The European Copyright Code was published on April 26, 2010, the tenth World Intellectual Property Day , on the Wittem Group website. In 2011 it was published in the journal European Intellectual Property Review. The Wittem project ended with the completion and publication of the code .

European Copyright Code

Conception

According to the Wittem Group's will, the European Copyright Code (ECC) is designed as a possible model or suggestion for future harmonization or standardization projects of European copyright law. It does not aim to rearrange the international copyright system, but rather assumes the obligations of the European Union and its member states under international law - in particular from the Revised Berne Convention (RBC) , the TRIPS Agreement and the WIPO Copyright Treaty - as given.

The ECC is formulated as a legal text and consists of 28 articles , which are arranged in five chapters: Subject matter of copyright (Chapter 1); Copyright and rights ownership (Chapter 2); Moral rights (Chapter 3); Exploitation rights (Chapter 4) and restrictions (Chapter 5). In 58 accompanying footnotes, the authors explain individual provisions, refer to existing standards in European copyright law and international agreements, and report on the underlying considerations within the group. Despite the depth of detail of the individual provisions, the content of the ECC is limited to a “core” of copyright law: it does not contain any regulations on remuneration claims, nor on related property rights (such as the protection of the performing artist or the database producer) or the protection of technical measures .

content

Subject of protection

The subject of protection of the ECC are “works”, which include “any form of expression from the field of literature, art or science” if and to the extent that it is “the author's own intellectual creation”. Accordingly, the physical definition of the work is not required. Within this framework, the ECC assumes an open catalog of works, which, however - similar to, for example, the German copyright law - is substantiated by an exemplary list of forms of expression. These include, for example, written or spoken words, musical compositions, photographs, films and computer programs. In contrast, facts, discoveries, news and data, ideas and theories as well as procedures, methods of action and mathematical concepts are expressly incapable of protection “ in themselves ” . In addition, some works of official origin are denied protection.

Copyright and rights ownership

The author of a work is the natural person who created it; If there are several creators, they are all (co-) authors. On the one hand, the work author has a number of moral rights (more on this below). On the other hand, he is the first owner of the (economic) exploitation rights. These are fully or partially transferable, licensable and inheritable. Even after his rights have been transferred, the author still has the right to remuneration. Otherwise, the transfer of rights must be in writing. The scope of granted rights of use (“licenses”) is to be determined according to a transfer purpose principle . The ECC provides special provisions for works that are created within the framework of an employment relationship or result from a commissioning relationship: Unless otherwise agreed, the exploitation rights should be transferred to the employer in the former case, in the latter case the client should receive the rights of use necessary to fulfill the purpose of the order .

Moral rights

The following are recognized as moral rights in the ECC:

  • the right of publication, i.e. the exclusive right to decide whether and how to first publish the work;
  • the right to be named , consisting of the right to be recognized as the author in the desired way (or to remain anonymous), as well as the right to be named the work title or the work title;
  • the right to the integrity of the work, which means the right to oppose any distortion, mutilation, other alteration or damage to the work that could be detrimental to the author's honor or reputation.

In contrast to many legal systems, the ECC follows the idea that the term of protection for these rights should not be set uniformly. In particular, the right of publication ends with the death of the author. The term of protection of the other two moral rights was left open by the authors of the draft. The moral rights are non-transferrable, but the author can consent not to exercise them, provided the consent is informed, clear and of limited scope.

In particular, the moral rights granted are not enforceable in those cases in which their enforcement would violate the legitimate interests of third parties to such an extent that the interests of the third party clearly outweigh the interests of the author ( to an extent which is manifestly disproportionate to the interests of the author ).

Exploitation rights

Exploitation rights within the meaning of the ECC are:

  • the right of reproduction , which includes temporary acts of reproduction only if they are of independent economic importance;
  • the right of distribution , i.e. the right to distribute the original of a work or copies thereof in public. The right to distribute a work copy is subject to exhaustion , that is, it “consumes” itself when it is first (legally) placed on the market;
  • the rental right;
  • the right of communication to the public, including the right to perform and broadcast, as well as the right to make the work available to the public in such a way - for example on the Internet - that members of the public can access it from the location and at the time of their choice. According to the understanding of the ECC, the required “publicity” of the act of reproduction presupposes that it is addressed to a plurality of persons who are not connected by personal relationships;
  • the editing right, by which the ECC understands the right to "adapt, translate, arrange or otherwise change" the work.

The term of protection of the exploitation rights is designed uniformly, but was not further quantified by the authors in the draft due to a lack of agreement. In a footnote, however, it is additionally pointed out that the members of the Wittem group were convinced that the current protection periods for exploitation rights are too long.

Barriers

The ECC provides for a number of exceptions. They are initially arranged in four groups: uses with little economic importance; Uses with the purpose of promoting freedom of expression and information; Uses to promote social, political or cultural purposes; as well as uses to promote competition. In detail:

  • Uses with little economic importance:
Permission-free and remuneration-free: the creation of a backup copy by an authorized user, use as an essential accessory and use in connection with the demonstration or repair of a device;
  • Uses with the purpose of promoting freedom of expression and information:
Permit-free and royalty-free: use in the context of reporting on current events; the media use of published articles on current economic, political or religious topics as well as comparable broadcasted works; the use of works of architecture and plastic works that were made to remain in public places (so-called panorama freedom ); the citation of published works; use for the purpose of caricature, parody or pastiche;
Permission-free, but subject to remuneration (remuneration claim can only be perceived by a collecting society ): the use of individual articles for internal dissemination within organizations; use for scientific research purposes;
  • Uses to promote social, political or cultural purposes:
Permission-free and remuneration-free: use for the benefit of disabled people, as long as this is not for commercial purposes and is directly related to the disability; use to ensure proper administrative, parliamentary and judicial procedures as well as for public safety purposes; use for non-commercial archiving by publicly accessible libraries, educational institutions, museums or archives;
permission-free, but subject to remuneration (remuneration claim can only be perceived by a collecting society): reproduction by a natural person for private use (so-called private copy ) and use for educational purposes;
  • Uses to promote competition:
Permission-free and royalty-free: use for the purpose of advertising for public exhibitions or the public sale of artistic works or for goods that have been lawfully placed on the market; use for the purpose of reverse engineering by an authorized user in order to obtain access to information;
permit free but subject to a fee based on a negotiated compensation agreement: the use of news articles, scientific works, industrial designs, computer programs and databases, provided that (i) the use to participate in a secondary market ( derivatives market ) is essential, (ii) the copyright holder of the work has refused to grant a license on reasonable terms so that competition in the relevant market has been eliminated and (iii) the use does not unreasonably impair the legitimate interests of the copyright owner.

In addition to the expressly formulated limitation provisions, the ECC contains a general clause according to which acts of use that are not expressly recorded but are "comparable" to expressly privileged use are permissible in accordance with the three-stage test and taking into account the legitimate interests of third parties. The purpose of this is to add a flexibility element to the ECC, which does not include the closed catalogs of restrictions of the InfoSoc Directive, but also, for example, of national German law. The resulting “hybrid” structure mediates between the closed barriers of the Droit-d'auteur systems and the completely open general clauses based on the Anglo-Saxon model ( fair use ) .

The restrictions do not affect the author's right to publish, as well as - with the exception of permitted uses with little economic importance - his right to be named. With the exception of uses to promote competition, the right to the integrity of the work remains unaffected, provided that the relevant limitation provision does not expressly permit a change or this is conditioned by the duplication or reproduction process used.

reception

General

The ECC met with a broad scientific reception, where it was mostly at least partially approved, but also received criticism. The approach of the project to get involved in such a comprehensive form in the legal-political discourse on European copyright law is welcomed by many sides. The basic ambition of the project to strive for a balance between elements of the Droit-d'auteur systems and the copyright systems has been positively received by various parties. Sometimes, however, the draft is judged to be too conservative. This is especially against the background that the draft wants to fit into an existing corset under international law with which not all commentators show their agreement. Ficsor, on the other hand, believes that the draft is more likely to be influenced by the "siren voices of those who want to reduce the level of protection under copyright law" and is unable to balance the interests of the stakeholders fairly against this background.

Individual aspects

Concept: On the one hand, André Lucas emphasizes the elegant and clear style of the ECC. On the other hand, he is critical of the limited ambitions of the project with a view to a lack of contractual, collecting society and neighbor law regulations and enforcement provisions; a number of other voices also raise concerns about the omission of important areas of the copyright regime.

Concept of work: König regrets the adoption of the concept of “one's own intellectual creation” from the acquis ; Instead, it is preferable to find an "abstract, pragmatic" reformulation that follows the reality of judicial application of law and thus meets the needs of the national legal systems. The problem of the term is not least already expressed in the ECC itself, footnote 7 of which expresses the view that the “main focus” in the interpretation of the term “one's own intellectual creation” should rather be on skills and functions in factual and functional works The amount of work involved, but in the case of artistic products it is more the personal expression of the author, which creates a “not very pragmatic” differentiation. Ficsor points out the lack of a regulation for dealing with folkloric works. Some authors have expressed concerns about the exemplary catalog of works; This is based in part on terms that are not used in international copyright agreements, and therefore also raises the question of the factualpotential for harmonization of such a regulation.

Moral rights: Klass advocates the Wittem Group's approach of assigning the moral rights, which are only occasionally reflected in previous European regulations, to the “status they deserve”. André Lucas particularly welcomes the establishment of the not yet universally recognized right of publication. The fact that moral rights have to take a back seat in cases in which their enforcement would affect the legitimate interests of third parties is, however, an unacceptable restriction in view of the overly general formulation.

Exploitation rights: Ginsburg points out the lack of an express recognition of the right to appropriate remuneration (see, for example, Section 32 (1) of the German Copyright Act ). On the other hand, she welcomes the inclusion of the principle of transfer purpose from German and Dutch law. With regard to the proposed transfer of employee copyright to the employer, André Lucas complains about the insufficient consideration of employee interests, who should at least be entitled to remuneration. With regard to the exhaustion of the distribution right, some commentators point out that the link to the placing on the market in the "market" makes it unclear whether this is only - as de lege lata - the EU (regional exhaustion) or any market (international exhaustion) is meant. In the area of ​​the right of communication to the public, Ginsburg seesthe danger that the addressee criterion of a "majority of persons [...] who are not connected by personal relationships" would create an ambivalence (how far do personal relationships extend?) That is suitable To restrict the scope of the exclusive right too much. Ficsor also fears that the waiver of the special regulations provided for in international agreements and many national copyright laws on individual partial rights of the right of communication to the public - such as broadcasting rights and cable (further) broadcasting - would result in increased legal uncertainty.

Duration of protection: Geiger / Schönherr regret that no determination has been made regarding the duration of protection of the right to be named. However, Ginsburg shares the authors' view that the duration of protection for different moral rights should be graded according to their proximity to the moral character. Like Geiger / Schönherr, Rosati criticizesthe unspecified term of protection of the exploitation rights.

Limitation regulations: Geiger / Schönherr note that the chapter on the limitation regulations closes some currently existing gaps in European copyright law. Overall, Rosati welcomes the balance between copyright and user interests in the ECC.
In particular, there are some concerns about the supposedly "low economic importance" of the uses listed by the ECC under this heading in the barrier catalog, especially since commercial acts of use are not excluded. Similar criticism is also to be directed to a greater extent against the exempted “uses with the purpose of promoting freedom of expression and information”, the compatibility of which with the three-step test is sometimes doubtful; Inparticular, Ginsburg considersthe barriers to media use of published articles on current economic, political or religious topics as well as use for the purposes of scientific research, which are not restricted to non-commercial or research purposes,to be too extensive. The same applies to the barrier in favor of use for educational purposes, which is "very problematic" with regard to the three-step test conformity due to the lack of restriction to non-profit-making non-commercial uses. In contrast, Kuhlen criticizesthe barriers in favor of scientific research and educational purposes as too narrow; it is to be regretted, for example, that in both cases an unconditional remuneration obligation is maintained.
Against the exemptions for the use of news articles, scientific works, industrial designs, computer programs and databases to promote competition, it is sometimes argued that the scope of this regulation is too unspecific. Unclear whether particular as a "derived market" ( derivative market ) was at all; Ginsburg and Ficsor suspect so will probably a market for machining ( adaptation ) , respectively. Ficsor sees this “strangely” structured provision as the “greatest violation of international norms and the acquis ”; If one really wanted to enable competitors to use the original works without the consent of their authors, the editing right would be converted into a mere claim for remuneration, which would represent a serious interference and require an amendment to the RBÜ , the TRIPS agreement and the WIPO copyright agreement . Other authors, on the other hand, welcome the attempt to take the competitive aspect into account in the area of ​​substantive copyright law. It is countered that the mixing of such aspects brings with it a considerable inconsistency with regard to the different protective purposes of copyright and competition law.
The general clause that supplements the catalog of barriers is given special attention in the literature. It is welcomed by some commentators as an opportunity for greater flexibility. On the other hand, it isargued, forexample by André Lucas , that the rights of the author are restricted too much in this way, especially since the list of expressly recognized limits is already very long. Last but not least, this breaks with the principle of narrow interpretation of limits.

Similar projects

On the American side, almost simultaneously with the publication of the ECC, a group of authors led by Pamela Samuelson presented the final report of their Copyright Principles Project (CPP). Deviating from the format of the ECC, which is formulated as a coherent legal text, the final report of the CPP consists of a number of guiding principles, on the basis of which copyright should be further developed, as well as individual (reform) proposals. With regard to the thematic leitmotifs, the two works are similar in many respects; In particular, both CPP and ECC grant exception or limitation regulations a much more central role in the creation of copyright than is assigned to them under the current American or European legal situation. In this context, Garvais speaks of a similarity between the “normative infrastructure ”: Both projects attempted to reduce control rights where it is unlikely that they would have a positive effect on the creation and distribution of new works.

Web links

literature

  • Thomas Dreier: The WITTEM project of a “European Copyright Code” . In: Willi Erdmann u. a. (Ed.): Festschrift for Michael Loschelder: For his 65th birthday . O. Schmidt, Cologne 2010, ISBN 978-3-504-06218-7 , pp. 47-60 .
  • Thomas Dreier: The WITTEM project of a “European Copyright Code” . In: Journal for European Private Law . tape 19 , no. 4 , 2011, p. 831-850 .
  • Mihály Ficsor: An imaginary “European Copyright Code” and EU copyright policy . Working paper, 20th Annual Intellectual Property Law & Policy Conference, Fordham University School of Law, April 12-13, 2012. ( fordhamipconference.com [PDF; accessed November 20, 2016]).
  • Jane C. Ginsburg: “European Copyright Code” - Back to the First Principles (With Some Additional Detail) . In: Journal of the Copyright Society of the USA Band 58 , no. 2 , 2011, p. 265–300 ( HeinOnline - not freely accessible).
  • P. Bernt Hugenholtz: The Wittem Group's European Copyright Code . In: Tatiana-Eleni Synodinou (Ed.): Codification of European Copyright Law: Challenges and Perspectives . Wolters Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , p. 339–354 ( ivir.nl [PDF; 100 kB ] also online via the University of Amsterdam, Instituut voor Informatierecht).
  • Rainer Kuhlen: Pointing the way or a limited opportunity ?: The Wittem project's copyright code . In: Journal of Intellectual Property, Information Technology and E-Commerce Law . tape 2 , no. 1 , 2011, p. 18–25 , urn : nbn: de: 0009-29-29601 (freely accessible).
  • Eleonora Rosati: The Wittem Group and the European Copyright Code . In: Journal of Intellectual Property Law & Practice . tape 5 , no. 12 , 2010, p. 862-868 , doi : 10.1093 / jiplp / jpq140 .
  • The Wittem Group: European Copyright Code . In: European Intellectual Property Review . tape 33 , no. 2 , 2011, p. 76-82 .

Remarks

  1. ↑ See Dreier, The WITTEM project for a “European Copyright Code”, 2010, op. Cit., P. 47.
  2. ↑ See Hugenholtz, The Wittem Group's European Copyright Code, 2012, op. Cit., P. 340; Nederlandse Organizatie voor Wetenschappelijk Onderzoek , Informatietechnologie en rechts (ITeR) , accessed on April 15, 2016.
  3. ↑ See Hugenholtz, The Wittem Group's European Copyright Code, 2012, op.cit., P. 340.
  4. ↑ Today: Max Planck Institute for Innovation and Competition .
  5. ↑ See Dreier, The WITTEM project for a “European Copyright Code”, 2010, op. Cit., P. 50.
  6. ↑ Members of the advisory board were Robert Clark ( University College Dublin ), Frank Gotzen ( University of Leuven ), Ejan Mackaay ( University of Montreal ), Marco Ricolfi ( University of Turin ), Jon Bing ( University of Oslo ), Elzbieta Traple ( Jagiellonian University , Krakow) and Michel Vivant ( University of Montpellier , later Sciences Po Paris ). See Hugenholtz, The Wittem Group's European Copyright Code, 2012, op.cit., P. 340.
  7. ↑ See Dreier, The WITTEM project of a “European Copyright Code”, 2010, op. Cit., P. 49 f.
  8. ↑ See Dreier, The WITTEM project of a “European Copyright Code”, 2011, op. Cit., P. 835.
  9. ↑ See The Wittem Group, European Copyright Code, 2011, op.cit.
  10. ↑ See also Hugenholtz, The Wittem Group's European Copyright Code, 2012, op. Cit., P. 339 (“2002 to 2010”).
  11. ↑ See The Wittem Group, European Copyright Code, 2011, op.cit., P. 76.
  12. ↑ See preamble to the ECC.
  13. ↑ See also Dreier, The WITTEM project of a “European Copyright Code”, 2010, op. Cit., P. 53.
  14. ↑ See Dreier, The WITTEM project for a “European Copyright Code”, 2010, op. Cit., P. 51; Hugenholtz, The Wittem Group's European Copyright Code, 2012, op.cit., P. 341.
  15. ↑ See Dreier, The WITTEM project for a “European Copyright Code”, 2010, op. Cit., P. 52; Hugenholtz, The Wittem Group's European Copyright Code, 2012, op.cit., P. 342.
  16. ↑ See Art. 1.1 Para. 1 ECC.
  17. ↑ So expressly footnote 2 on the ECC.
  18. ↑ See Art. 1.1 Para. 2 ECC.
  19. ↑ See Art. 1.1 Para. 3 ECC.
  20. ↑ See Art. 1.2 ECC.
  21. ↑ See Art. 2.1 ECC.
  22. ↑ See Art. 2.3 Paragraph 2 ECC.
  23. ↑ See Art. 2.3 Paragraph 3 ECC.
  24. ↑ See Art. 2.3 Paragraph 4 ECC.
  25. ↑ See Art. 2.4 ECC.
  26. ↑ See Art. 2.5, 2.6 ECC.
  27. ↑ See Art. 3.2 ECC.
  28. ↑ See Art. 3.3 ECC.
  29. ↑ Cf. Art. 3.4 ECC (taken literally from Art. 6 to Para. 1 RBÜ [Paris version], cf. Dreier, The WITTEM project of a “European Copyright Code”, 2011, op. Cit., P. 842) .
  30. ↑ See also Dreier, The WITTEM project of a “European Copyright Code”, 2011, op. Cit., P. 842.
  31. ↑ Cf. Art. 3.2 Paragraph 2 ECC.
  32. ↑ See Art. 3.3 Paragraph 2, 3.4 Paragraph 2 ECC.
  33. ↑ See Art. 2.2 Paragraph 2 ECC.
  34. ↑ See Art. 3.5 ECC.
  35. ↑ See Art. 3.6 Para. 1 ECC.
  36. ↑ See Art. 4.2 ECC. As such processes are excluded from the protection area of ​​the right of reproduction from the outset, the construction required this year in the European Union should be based on a binding regulation (Art. 5 Para. 1 InfoSoc Directive ), which technically necessary, "volatile" reproduction processes in computer systems made possible to be dispensable. Cf. also Dreier, The WITTEM project for a “European Copyright Code”, 2011, op. Cit., P. 843.
  37. ↑ See Art. 4.3 para. 1 ECC.
  38. ↑ See Art. 4.3 para. 2 ECC.
  39. ↑ See Art. 4.4 ECC.
  40. ↑ See Art. 4.5 Paragraph 1 ECC.
  41. ↑ See Art. 4.5 Paragraph 2 ECC.
  42. ↑ See Art. 4.6 ECC.
  43. ↑ See Art. 4.1 Paragraph 2 ECC.
  44. ↑ See footnote 40 on the ECC.
  45. ↑ See Art. 5.1 ECC.
  46. ↑ See Art. 5.2 Paragraph 1 ECC.
  47. ↑ See Art. 5.2 Paragraph 2, 5.7 Paragraph 2 ECC.
  48. ↑ See Art. 5.3 Paragraph 1 ECC.
  49. ↑ See Art. 5.3 Paragraph 2, 5.7 Paragraph 2 ECC.
  50. ↑ See Art. 5.4 Paragraph 1 ECC.
  51. ↑ Cf. Art. 5.4 Paragraph 2 ECC.
  52. ↑ See Art. 5.5 ECC.
  53. ↑ See Dreier, The WITTEM project for a “European Copyright Code”, 2011, op. Cit., P. 848.
  54. ↑ Kuhlen, trend- setting or a limited opportunity? , 2011, op.cit., P. 21.
  55. ↑ See Art. 5.6 Para. 1, 2 ECC.
  56. ↑ See Art. 5.6 Paragraph 3 ECC.
  57. ↑ More detailed treatises in André Lucas, European Copyright Codification , in: Tatiana-Eleni Synodinou (Ed.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 373–379, here pp. 375–379; Eleonora Rosati, Originality in EU Copyright. Full Harmonization through Case Law , Elgar, Cheltenham and Northampton 2013, ISBN 978-1-78254-893-5 , pp. 218-231; dies., The Wittem Group and the European Copyright Code , 2010, op. cit .; predominantly critical Ginsburg, European Copyright Code , 2011, op. cit .; Cooling, trend- setting or a limited opportunity? , 2011, op. Cit; completely negative Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. cit., p. 3 ff. (not necessary at the present time).
  58. ↑ Cf. for example Nicole Bengeser, The three-step test in international, European and German copyright law , Shaker, Aachen 2015, ISBN 978-3-8440-3337-3 , p. 181; Theodoros Chiou, Lifting the (dogmatic) barriers in intellectual property law: fragmentation v integration and the practicability of a European Copyright Code , in: European Intellectual Property Review , Volume 37, No. 3, 2015, pp. 138–146, here p 140 f .; Thomas Fischer, European Copyright. Development and perspectives with special consideration of the role of the Court of Justice of the European Union , Kovač, Hamburg 2016, ISBN 978-3-8300-8814-1 , p. 285; Ansgar Ohly, Common Principles of European Intellectual Property Law? , in: Journal for Intellectual Property , Volume 2, No. 4, 2010, doi : 10.1628 / 186723710794481363 , pp. 365–384, here p. 372; Eleonora Rosati, Originality in EU Copyright. Full Harmonization through Case Law , Elgar, Cheltenham and Northampton 2013, ISBN 978-1-78254-893-5 , p. 231.
  59. ↑ See for example Thomas Fischer, European Copyright. Development and perspectives with special consideration of the role of the Court of Justice of the European Union , Kovač, Hamburg 2016, ISBN 978-3-8300-8814-1 , p. 285; Eleonora Rosati, Originality in EU Copyright. Full Harmonization through Case Law , Elgar, Cheltenham and Northampton 2013, ISBN 978-1-78254-893-5 , p. 226 ff. Critical to the success of these efforts Lucas / Lucas / Lucas-Schloetter, Traité de la propriété littéraire et artistique, 4th edition 2012, marginal no. 1596.
  60. ↑ In this sense in particular Kuhlen, trend- setting or a limited opportunity? , 2011, op.cit., Para. 1, 4.
  61. ↑ See, for example, Rebecca Giblin and Kimberlee Weatherall, A collection of impossible ideas , in: dies. (Ed.), What if we could reimagine copyright? , ANU Press, Acton 2017, ISBN 978-1-76046-080-8 , pp. 315–332, doi : 10.22459 / WIWCRC.01.2017.10 , here p. 327 (“these ideas for feasible change feel very much like mere tinkering at the edges of what's demonstrably a deeply flawed system ”).
  62. ↑ Cf. Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., Pp. 5, 15 ff.
  63. ↑ See André Lucas, European Copyright Codification , in: Tatiana-Eleni Synodinou (Ed.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 373–379, here p. 375.
  64. ↑ See André Lucas, European Copyright Codification , in: Tatiana-Eleni Synodinou (Ed.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 373–379, here p. 376.
  65. ↑ For example Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., Pp. 2 f .; Lucas-Schloetter in Stamatoudi / Torremans, EU Copyright Law, 2014, § 1.23; Eleonora Rosati, Originality in EU Copyright. Full Harmonization through Case Law , Elgar, Cheltenham and Northampton 2013, ISBN 978-1-78254-893-5 , p. 221 ff.
  66. ↑ Cf. Eva-Marie König, The concept of work in Europe. A comparative study of British French and German copyright law , Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-153459-1 , p. 389. Likewise in the result Kuhlen with reference to the antiquity of "mystical formulations such as 'creation'", which were based on a “romanticizing image of the creative creator working alone for himself”. Cf. Kuhlen, trend- setting or a limited opportunity? , 2011, op.cit., Para. 11.
  67. ^ Skeptical about this differentiation also Ginsburg, European Copyright Code , 2011, op. Cit., P. 270 f.
  68. ↑ See Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., P. 19.
  69. ↑ See for example Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., P. 18 f., And Ginsburg, European Copyright Code , 2011, op. Cit., P. 271 f. , both of which explicitly take up the example of the "films" which the ECC under Art. 1.1 Para. 2 lit. e mentioned as subject matter of protection, which in the language of the copyright agreements are however regularly included under the broader term of "audiovisual works".
  70. ↑ See Nadine Klass, Enjoyment and Use of Works in the Digital World: Is there a need to harmonize moral rights? , in: Journal for Copyright and Media Law , Volume 59, No. 4, 2015, pp. 290–308, here p. 307.
  71. ↑ See André Lucas, European Copyright Codification , in: Tatiana-Eleni Synodinou (Ed.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 373–379, here p. 377.
  72. ↑ See André Lucas, European Copyright Codification , in: Tatiana-Eleni Synodinou (Ed.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 373–379, here p. 378. Critical to this with a view to the unclear scope also Ginsburg, European Copyright Code , 2011 , op. cit., pp. 282 f.
  73. ↑ Cf. Ginsburg, European Copyright Code , 2011, op.cit., P. 272 ​​ff.
  74. ↑ Cf. Ginsburg, European Copyright Code , 2011, op.cit., P. 276 f.
  75. ↑ See André Lucas, European Copyright Codification , in: Tatiana-Eleni Synodinou (Ed.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 373–379, here p. 377.
  76. ↑ In this sense Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., P. 22 f .; Ginsburg, European Copyright Code , 2011, op.cit., P. 286.
  77. ↑ Cf. Ginsburg, European Copyright Code , 2011, op. Cit., P. 288; Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., P. 24.
  78. ↑ Cf. Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., P. 23 f.
  79. ↑ Cf. Christophe Geiger and Franciska Schönherr, Defining the Scope of Protection of Copyright in the EU: The Need to Reconsider the Acquis regarding Limitations and Exceptions , in: Tatiana-Eleni Synodinou (Eds.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 133–167, here p. 166.
  80. ↑ Cf. Ginsburg, European Copyright Code , 2011, op.cit., P. 279.
  81. ↑ See Eleonora Rosati, Originality in EU Copyright. Full Harmonization through Case Law , Elgar, Cheltenham and Northampton 2013, ISBN 978-1-78254-893-5 , p. 223 ff.
  82. ↑ Cf. Christophe Geiger and Franciska Schönherr, Defining the Scope of Protection of Copyright in the EU: The Need to Reconsider the Acquis regarding Limitations and Exceptions , in: Tatiana-Eleni Synodinou (Eds.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 133-167, here p. 164.
  83. ↑ See Eleonora Rosati, Originality in EU Copyright. Full Harmonization through Case Law , Elgar, Cheltenham and Northampton 2013, ISBN 978-1-78254-893-5 , p. 226 ff.
  84. ↑ Cf. Ginsburg, European Copyright Code , 2011, op. Cit., Pp. 289 f .; Yours, Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. cit., p. 26 ff.
  85. ↑ Cf. Ginsburg, European Copyright Code , 2011, op. Cit., P. 291 ff. With regard to the use for purposes of scientific research also Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., P. 28: Compatibility neither with step 1, let alone steps 2 and 3 of the three-step test.
  86. ↑ See Ginsburg, European Copyright Code , 2011, op.cit., P. 294; Yours, Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. cit., p. 28.
  87. ↑ See Kuhlen, Pointing the way or an opportunity that has only been taken to a limited extent? , 2011, op.cit., Para. 26 ff., 35.
  88. ^ For example, von Ginsburg, European Copyright Code , 2011, op.cit., Pp. 275, 294 ff.
  89. ↑ In this sense Ginsburg, European Copyright Code , 2011, op. Cit., P. 295; Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., P. 29.
  90. ↑ See Ginsburg, European Copyright Code , 2011, op. Cit., P. 295; Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., P. 29.
  91. ↑ Cf. Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., Pp. 28 f.
  92. ^ For example, Christophe Geiger and Franciska Schönherr, Defining the Scope of Protection of Copyright in the EU: The Need to Reconsider the Acquis regarding Limitations and Exceptions , in: Tatiana-Eleni Synodinou (eds.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 133–167, here p. 163.
  93. ^ So again Ginsburg, European Copyright Code , 2011, op.cit., P. 294.
  94. ↑ In this sense, for example, Christophe Geiger and Franciska Schönherr, Defining the Scope of Protection of Copyright in the EU: The Need to Reconsider the Acquis regarding Limitations and Exceptions , in: Tatiana-Eleni Synodinou (eds.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 133–167, here p. 164; Ansgar Ohly, Common Principles of European Intellectual Property Law? , in: Journal for Intellectual Property , Volume 2, No. 4, 2010, doi : 10.1628 / 186723710794481363 , pp. 365–384, here p. 378; Claudia Schlüter, harmonization without harmony? The Infopaq v. DDF judgment of the ECJ and the European concept of work , in: Horst-Peter Götting and Claudia Schlüter (eds.), Nourriture de l'esprit. Festschrift for Dieter Stauder on his 70th birthday , Nomos, Baden-Baden 2011, ISBN 978-3-8329-6436-8 , pp. 239–249, here p. 248; Gerald Spindler, The Reform of Copyright Law , in: Neue Juristische Wochenschrift , Volume 67, No. 35, 2014, pp. 2550-2554, here p. 2552 (“weakened general barrier”).
  95. ↑ See André Lucas, European Copyright Codification , in: Tatiana-Eleni Synodinou (Ed.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 373–379, here p. 378 f. Also skeptical Ginsburg, European Copyright Code , 2011, op.cit., P. 296 f. (also with reference to step 1 of the three-step test). On practical problems of implementation: Ficsor, An imaginary “European Copyright Code” and EU copyright policy , 2012, op. Cit., P. 30 f.
  96. ↑ See André Lucas, European Copyright Codification , in: Tatiana-Eleni Synodinou (Ed.), Codification of European Copyright Law. Challenges and Perspectives , Kluwer, Alphen aan den Rijn 2012, ISBN 978-90-411-4145-3 , pp. 373–379, here p. 378.
  97. ↑ See Pamela Samuelson and Members of The CPP, The Copyright Principles Project: Directions for Reform , in: Berkeley Technology Law Journal , Volume 25, No. 3, 2010, pp. 1175–1246 ( HeinOnline , not freely accessible). Comparing to ECC: Lucky Belder, Leon E. Dijkman and Arne EM Mombers, The age of copyright: Wittem's copyright reform proposal compared to Samuelson's Preliminary Thoughts , in: Queen Mary Journal of Intellectual Property , Volume 1, No. 3, 2011, p . 200–222 and Daniel Gervais, Fair Use, Fair Dealing, Fair Principles: Efforts to Conceptualize Exceptions and Limitations to Copyright , in: Journal of the Copyright Society of the USA , Volume 57, No. 3, 2010, p. 499– 520 ( HeinOnline , not freely accessible).
  98. ↑ See Daniel Gervais, Fair Use, Fair Dealing, Fair Principles: Efforts to Conceptualize Exceptions and Limitations to Copyright , in: Journal of the Copyright Society of the USA , Volume 57, No. 3, 2010, pp. 499-520 ( HeinOnline , not freely accessible), here p. 500 ff.
  99. ↑ See Daniel J. Gervais, (Re) structuring Copyright. A Comprehensive Path to International Copyright Reform , Elgar, Cheltenham and Northampton 2017, ISBN 978-1-78536-949-0 , pp. 186 f.
This version was added to the list of articles worth reading on June 19, 2017 .