Minutes of the meeting of the European Copyright Society

Hosted by CEIPI in Obernai

23 May 2014

 

Attendants: Christophe Geiger, Lionel Bently, Martin Senftleben, Marie Christine Janssens, Alexander Peukert, Ole-Andreas Rognstad, Alain Strowel, Raquel Xalabarder, Martin Kretschmer (by Skype)

Could not attend: Valérie-Laure Benabou, Estelle Derclaye, Séverine Dusollier, Thomas Dreier, Graeme Dinwoodie, Jonathan Griffiths, Reto Hilty, Bernt Hugenholtz, Robert Clark, Marco Ricolfi, Michel Vivant, Axel Metzger.

Program

12:30 – 13:50 Lunch (buffet style) at the hotel

14:00 – 14:30 Agreement on topics and schedule

14:30 – 16:30 Work of the past year and future actions

16:30 – 16:45 Coffee break

16:45 – 17:45 Governance, membership and methodology issues

17:45 – 18:15 Dissemination of results and other issues

18:15 Closing

19:30 Dinner at the hotel

 

 

 

 

 

 

Minutes of the meeting

 

Main achievements of the past year

At the opening words by the chair, a quick overview of achievements of the first year of society’s existence was made:

  1. Opinion on limitations and exceptions in EU copyright law following the Deckmyn decision of the CJEU of Sept. 2014 (published in EIPR and IIC);
  2. Open letter to EU commissioners calling for a unitary copyright law (sent to both Commissioners (Ansip and Oettinger) working on copyright issues and published on various websites);
  3. Opinion on the right to remuneration for creators anticipating the conclusions of the AG in the case HR Belgium v Reprobel (draft proposed by Alain Strowel, to be finalized after the publication of the AGs opinion in June).

Discussion on the Draft Opinion in HR Belgium v Reprobel

Alain Strowel briefly presented the main points of the case and the draft opinion. The decision of the AG has been delayed. Art. 2 of the InfoSoc Directive speaks of “authors” and Art. 5(2)(a) and (b) of “rightholders”. By Belgian law, the revenue is divided 50/50 between authors and publishers. When deciding the case, the Court may conclude that the remuneration is only for the authors. There was a common support that it is important that in the new situation authors should not get less than they are getting under the Belgian 50/50 arrangement (e.g., by trading their right to remuneration for a disproportionally low amount).

Proposal was made not to focus too much on the details, making ECS’s position vulnerable to critique. It is important to state goals and underlining objectives, such as the need to secure the remuneration interest of creators resulting from rights to equitable remuneration. Participants agreed to send references to some relevant cases to Alain Strowel.

Drafting committee:

  • Alain Strowel (drafter)
  • Séverine Dusollier
  • Marie Christine Janssens
  • Alexander Peukert
  • Lionel Bently
  • Martin Senftleben

Deadline: to wait for the Opinion of the AG, finalizing the draft by end June and send the draft to the ECS to leave at least 10 days for reaction of members. The work on the draft should be completed in July before the summer break (or if not possible by early September the latest).

 

It was agreed that a quick reaction would position the ECS as a reactive actor.

Discussion on the future work

It was agreed that an output of at least three Opinions per year was desirable. Ideally, one Opinion should address current initiatives by the legislator, one pending issues before the courts (especially the Court of Justice) and another a more fundamental issue of EU copyright law.

Brainstorming session on possible future topics to be addressed:

  • Data-mining (mentioned in the Commission’s Communication)
  • Geo-blocking (mentioned in the Commission’s Communication). With regard to the possibility to fragment markets with contracts, it was observed that IViR is working on a study.
  • Moral rights in the online environment
  • Interpretation of the right to quotation
  • The issue of rise of new neighbouring rights (for publishers e.g., recent German legislation)
  • Overlapping of silos of exclusive rights – temporary copying – overlapping of rights
  • e-books after UsedSoft
  • Territoriality

Raquel Xalabarder proposed to map the possible topics in order to have a better overview for future work.

1) General reaction to the future Commission Proposal

In order for the ECS to be present this year in the discussion on the future EU text, an Opinion should be produced, with the aim:

– to assert/evaluate what the Commission is proposing

– to suggest additional important issues to be included,

– to raise some more specific issues (e-lending, hyperlinking, etc.)

It was agreed that the important work done by the ECS when replying to the Consultation should be used further in an Opinion, as this would be more accessible for readers then a reply to a questionnaire. Therefore, it was proposed that Raquel Xalabarder acts as main drafter supported by Séverine Dusollier who acted as drafter for the reply to the EU consultation

Drafting committee:

Séverine Dusollier (co-drafter)

Raquel Xalabarder (co-drafter)

 

Christophe Geiger

Martin Senftleben

  1. Bernt Hugenholtz (proposed)

Graeme Dinwoodie (proposed)

Reto Hilty (proposed)

 

2) Overlap of copyright exploitation rights / interaction of copyright exploitation rights / redesigning of exclusive rights

Issues to be addressed are

– formalism, functionalism and fragmentation;

– technological neutrality;

UsedSoft / an act of communication becomes an act of distribution

It was mentioned that IViR is conducting a study on the redesigning of exclusive rights which could be very useful in this context.

Drafting committee:

Ole-Andreas Rognstad (drafter)

Martin Senftleben

Marie Christine Janssens

Alain Strowel

Martin Kretschmer (proposed)

Bernt Hugenholtz (proposed)

Deadline: for spring 2016

 

3) Question of digital exhaustion – reaction to the consequences of the UsedSoft), E-Lending  

 

Drafting committee

Martin Senftleben (drafter)

Lionel Bently

Ole-Andreas Rognstad

Alexander Peukert

Others?

 

Membership of the ECS

  • There are currently three persons that expressed their wish to adhere to the society. It was agreed that the membership should stay by invitation only and that currently the number of members is adequate to ensure a proper functioning/ to react promptly to new developments. At present, new members could be invited when one of the current members leaves the ECS.
  • If there is an evident need to invite somebody and there is an available seat, academics from unrepresented countries could be considered with priority; to ensure diversity in representation, it should also be avoided that two members are coming from the same institution.
  • The ECS should include academics from EEA countries only;
  • A policy on the level of inactivity tolerated was agreed: If a member does not participate in 3 meetings or in drafting committees for two consecutive years, he should be considered as an inactive member and its position would become vacant; the ECS board will contact the inactive member and will be in charge of inviting new members if necessary, after agreement of the ECS plenary;
  • Raquel Xalabarder proposed to draft a standard polite answer that can be sent to a person approaching any of the ECS’ members with a request to join. It was agreed however that the Board should be in charge of dealing with the requests for memberships in a diplomatic manner (using for example a standardized answer).

 

Working methodology

It was agreed that 10 days should be left for ECS members to react to an Opinion proposal issued by the drafting committees in order to secure proper participation of every member.

 

Dissemination

 

The ECS members agreed that a proper functioning website is crucial for the visibility of the Society. At last year’s meeting, Bernt Hugenholtz proposed that IViR could host the ECS website. This was finally not possible for administrative reasons.

 

Website should have .eu domain name. Alexander Peukert agreed to investigate the arrangements necessary to establish an ECS website (hosting, domain name, maintenance, etc.) and to get back to the board with the information on the steps to take and about the indicative costs. The possibility of establishing a blog site was mentioned (eventually as a fallback option), but it was agreed that an institutional website was to be preferred.

 

Dates of the next meeting

 

The next annual meeting will be held 21 May 2016 (as it was agreed to avoid organization of the meeting during the weekend of Pentecost) in Cambridge or nearby.

 

New Chair and board

 

Lionel Bently was elected to be the new Chair of the ECS for the year 2015/2016.

 

Following the election, the new board is composed of:

 

Lionel Bently (chair)

Christophe Geiger

Séverine Dusollier