On June 11, 2015, the Advocate-General Pedro Cruz Villalón delivered his Opinion in the HP Belgium v. Reprobel case now pending before the Court of Justice of the EU (CJEU, case C-572/13). This Opinion and the underlying case raise one important issue: Is it permissible for a national copyright law to allocate a portion of the fair compensation for reproductions exempted under Article 5(2)(a) and (b) of the 2001/29 Infosoc Directive directly to publishers, although they are not listed among the initial holders of the reproduction right under Article 2 of the Infosoc Directive?
As a group of academics concerned about the copyright reforms envisaged in the European Union as well as by the interpretation and development of the law by the CJEU, the European Copyright Society (ECS) takes this opportunity to share its view on this matter of principle.
Copyright law 2 is linked to the freedom of the authors to create and should remunerate the creative authors in first instance. Therefore copyright law should not grant rights ab initio to persons other than the individual creators. This principle (the “author principle”) applies to the exclusive rights within the copyright bundle. It also applies to any right to remuneration provided by law to compensate for the exempted uses of copyright-protected works. We believe copyright is not the correct instrument by which to confer rights on legal entities to protect their investments. There are many instances where publishers or producers deserve to get an adequate protection, but their protection should derive either from the contracts concluded with the individual creators or by way of a related right granted by law. The ECS believes the Court of Justice of the EU should clearly reaffirm the important principle of initial authorship for creators.
With respect to the question of the allocation of the right to fair remuneration raised in the HP Belgium v. Reprobel case, the response that the Advocate-General proposes largely acknowledges the author principle and, to that extent, the Opinion is welcome. However, by leaving too much leeway to the Member States, some aspects of the Opinion (§132 to 143) might create uncertainty. In particular, the ECS does not think Member States should be free to grant publishers a remuneration right as a related right. This would seriously reduce the harmonizing effect of the 2001/29 Infosoc Directive.
In the ECS’s opinion, the 2001/29 Infosoc Directive prohibits a system which automatically allocates a part of the fair remuneration for the reprographic or private copies of copyright works to persons other than the authors.
On behalf of the European Copyright Society:
- Prof. Lionel Bently
Director, Centre of Intellectual Property and Information Law (CIPIL), University of
Cambridge, United Kingdom
- Robert Clark,
Emeritus Professor, University College, Dublin
- Prof. Estelle Derclaye
Professor of Intellectual Property Law, University of Nottingham, United Kingdom
- Prof. Séverine Dusollier
Professor, Sciences-Po, Paris, France
- Prof. Christophe Geiger
Director, Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI), University of Strasbourg, France
- Jonathan Griffiths
School of Law, Queen Mary University of London, United Kingdom
- Prof. M-C. Janssens
Professor Intellectual Property Law, University Leuven (KU Leuven), Belgium
- Prof. Axel Metzger
Humboldt-Universität, Berlin, Germany
- Prof. Dr. Alexander Peukert
Goethe-Universität Frankfurt am Main, Germany
- Prof. Marco Ricolfi
Chair of Intellectual Property, Turin Law School, Italy
- Prof. Ole-Andreas Rognstad
Professor of Law, University of Oslo, Norway
- Prof. Martin Senftleben
Professor of Intellectual Property, VU University Amsterdam, Netherlands
- Prof. Alain Strowel,
Professor, Faculties of Law of the University Saint-Louis in Brussels and of the Catholic
University of Louvain, Belgium
- Prof. Michel Vivant
Head of the “Innovation Law” Speciality, Sciences Po Law School, Paris, France
- Prof. Raquel Xalabarder
Chair on Intellectual Property, Universitat Oberta de Catalunya, Barcelona, Spain.
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