European Copyright Society Annual Meeting

UOC – Av. Tibidabo, 39 – Barcelona

24 May 2014


Attendants: Séverine Dusollier, P. Bernt Hugenholtz, Reto Hilty, Christophe Geiger, Lionel Bently, Martin Senftleben, Marie Christine Janssens, Alain Strowel, Valérie-Laure Benabou, Ole-Andreas Rognstad, Raquel Xalabarder

Could not attend: Estelle Derclaye, Thomas Dreier, Graeme Dinwoodie, Jonathan Griffiths, Robert Clark, Marco Ricolfi, Martin Kretschmer, Michel Vivant, Alexander Peukert, Axel Metzger.


11:00 – 11:30: Agreement on topics and schedule

11:30 – 12:30: ECS Mission

12:30 – 14:00: Governance issues

14:00 – 15:00: Lunch break

15:00 – 17:00: Past work and future actions

Minutes of the meeting


During the opening discussion, participants agreed that:

– There is a demand and need for the academic output of the ECS.

– It is necessary to structure the work and the governance of the ECS and to allocate responsibilities to ensure more results and output in the future.

– Although modest, the output of the ECS so far was successful: Opinion in the Svensson Case was widely noted and reported in many blogs/ articles; The ECS response to the EU copyright consultation has been noted by the European Commission, although it was drafted in a very short time (thanks to Severine!).



Previous email exchanges about the mission of the ECS have been reported

– June 2011 (inception): ECS should be a platform to discuss and develop thoughts of European academia on Copyright.

– Jan. 2012 (foundation): a platform for critical and scholarly thinking of European copyright law; Organizing workshop and symposia, address issues in EU legislation;  catch the attention of the law and policy makers.

The participants agreed on the following points:

  • EU Academics (only)
  • Independent, Academic, Scholarly thinking
  • Based on individual (voluntary) signatures of reports (no need for full agreement)
  • With a mission:
    • To let our thinking reach legislators and judges (with not so much traditional scholarly papers, but “opinions”, “reports” …)
    • Proactive work, … agenda de lege ferenda (not only reactive positions) as to what should be necessary to address
    • Help build EU copyright law
  • Academic work (scholarly output) is individual from each member … In individual scholarly publications, authors do not need/should not identify themselves as ECS member


Bernt Hugenholtz proposes to draft a mission statement on the basis of the founding documents and the discussion at this ECS meeting to be included on the ECS website.


Membership and Governance


Initial idea: “Club of Rome”-approach; Founding members group of 5 members connected to institutes + invited members (16)


  • Assembly: Membership (selective approach, by invitation only, no application procedure);
    • Members can take initiative to work on new issues
    • Who decides which members are invited? Assembly
    • By agreement of the Assembly (unanimity / abstention possible)
    • Assembly meets once a year – at the invitation of the Chair (at his home institution or somewhere else); Period: April / May (spring); Preferably on a Saturday.
    • How many? 21 (as current – enlarge it only as new members come eligible)
    • Territorial representation desirable, but only as new members come up (not actively seek members now from new countries)
    • Annual assembly;
      • It can include organizational/agenda issues and “substantial” working sessions (but only for ECS members –not open to public)
      • Each member pays for his own traveling/lodging costs, unless funding is available.


  • Board (3 people – including Chair); responsible for the production of the ECS, their task is to “whip” and spur ECS production.
    • 3 year appointment – but flexibility (according to needs, availability …)
    • Members rotating every 3 years; every year a new member is elected / one resigns.
      • Board for 2014 is elected: two members of current/founding Board (Bently, Geiger) + one new member elected for one year only (Xalabarder). In 2015, Dusollier will join the Board (in substitution of Xalabarder).
      • ECS Board until May 2015: Geiger, Bently, Xalabarder.


  • Chair; rotating every year; Chair needs a backing institution (members of the board also need to have an institution behind)
    • 2014: Chair Geiger (elected by unanimity)
    • 2015: Chair Bently
    • 2016: Chair Dusollier

Procedure for adopting REPORTS/ OPINIONS:

  • Any one can write a report and submit it to the Assembly (no need for the Board to decide “go”)
  • Reports must include Authorship credit to all participants
  • 50% of ECS members must support the report (not necessarily 50% of signatories)
  • Based on individual (voluntary) signatures of reports (no need for full agreement)
  • ECS reports will be posted on website… in the original language (English); translations/publication in a journal could be decided ad hoc, but only if relevant.

We are the force of critical academia (not critical force of academia)!!!



  • It is hosted and kept by IVIR (Bernt Hugenholtz)
  • Contents: Mission, members, posting reports/ opinions
  • And use other websites for posting ECS paper, institutional webs, including SSRN
  • Visibility is key: more generally, every possibility to communicate on the ECS and its work should be used by its members.


Past work :

Svensson Opinion, Reply to the EU Copyright Consultation

Very positive feedbacks have been received.

Forthcoming works:


The production of two Opinions of the ECS for the upcoming term has been agreed. One opinion is related to a question posed to the CJEU, the other is a statement related to a fundamental aspect of future EU copyright law.

Other documents could spontaneously be produced upon initiative of one or more of the ECS Members.

  • HP Belgium case (C-572/13): Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 8 November 2013 – Hewlett-Packard Belgium SPRL v Reprobel SCRL(Case C-572/13)

Especially question 2, sub-question 3: “Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to allocate half of the fair compensation due to rightholders to the publishers of works created by authors, the publishers being under no obligation whatsoever to ensure that the authors benefit, even indirectly, from some of the compensation of which they have been deprived?”

To be discussed: Remuneration of authors à it may be linked to the EU consultation “ensuring remuneration to authors”. (Perhaps link it with Luksan?)

  • Drafter of the Opinion: Alain STROWEL
  • Drafting committee: Séverine Dusollier, Valérie-Laure Benabou, Martin Senftleben, A. Peukert, others…

Suggestion by e mail A. Peukert, 31.5.2014: “There is a case pending before the BGH on the question whether VG Wort may allocate 50 % of the levies to academic publishers. The Munich (OLG, 6 U 2492/12) courts denied, essentially because only authors are entitled to fair compensation, and authors had transferred their remuneration rights to VG Wort already”.

  • Deadline: after summer


  • Unitary copyright title/ comment at the occasion of the (upcoming) “White paper”
    • Emphasizing the necessity that the EU puts the © regulation on the agenda; making an ambitious statement of the ECS to “lead the way”.
    • Discuss harmonisation through legislator vs. harmonisation through Courts; Lack of EU legislative ambition in copyright (reflected in the power of the ECJ: Has the ECJ gone too far? Is the ECJ assuming new (legislative) powers…). Question the responsibility of National legislators…
    • Identify which are the topics that the EU should be possibly focusing
      • Drafter of the Opinion: Bernt HUGENHOLTZ
      • Drafting committee: Lionel Bently, Christophe Geiger, Ole-Andreas Rognstad, Jonathan Griffiths, Others?
      • Deadline: after summer


  • Others topics that should be addressed by EU legislator/courts (proposed during the meeting):
    • Territoriality?
    • Registration?
    • Abdicating copyright (put a work in the public domain)
    • Ensure the public domain
    • Contracts on copyrights should also be dealt with by the EU à IVIR is doing a study on this topic …
    • Open-Access Declaration … and deal with contracts (and obligation to publish it in open access regardless of any exclusive license granted). Suggestion by e mail by E. Derclaye (31.5.2014):
  • Any other spontaneous, context-driven issues … (as they come up! )

Other agreements:

The ECS is not going to intervene at national level (legislative and judicial actions).