{"title":"Remunerated Exceptions","authors":"Stavroula Karapapa","doi":"10.1093/oso/9780198795636.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780198795636.003.0008","url":null,"abstract":"Under EU copyright, certain permitted uses are subject to the requirement that the rightsholders shall be fairly compensated. These ‘permitted-but-paid’ uses include private copying, reprography, and the reproduction of broadcasts that are made by social institutions pursuing non-commercial purposes. A number of questions arise with regard to the concept of fair compensation as a condition for the application of said exceptions, some of which have been discussed in the Court of Justice. Still, uncertainty remains regarding the way in which the requirement of fair compensation has been implemented by the various Member States, the notoriously vague and variably interpreted concept of harm on which fair compensation is premised, and the impact of compensation on the legal nature of uses. This has an impact on how the relevant remunerated exceptions are understood in terms of their legal nature: are they statutory licenses, legitimate entitlements of the rightsholders to compensation, or fully fledged rights of the users who have actually paid for their entitlement to a specific permitted use? Answers to questions like this one are becoming more pressing in the online context where the concept of harm could take unprecedented dimensions, especially with regard to private copying.","PeriodicalId":290989,"journal":{"name":"Defences to Copyright Infringement","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128365383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Conclusion","authors":"Stavroula Karapapa","doi":"10.1093/oso/9780198795636.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780198795636.003.0010","url":null,"abstract":"This chapter offers a synopsis of the work, explaining how the taxonomic project carried out in this book offers a holistic account of the defensive rules available to attack allegations of copyright infringement, adds to the debate on the breadth of permissible uses under EU copyright, and contributes both positivist and normative insights that could inform law and policy making. It also outlines certain key principles that can discipline our thinking towards more effective defensive rules with regard to the achievement of policy objectives such as innovation and business growth, and argues towards broader, more flexible, and stronger copyright defences.","PeriodicalId":290989,"journal":{"name":"Defences to Copyright Infringement","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127679355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"External Defences","authors":"Stavroula Karapapa","doi":"10.1093/oso/9780198795636.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780198795636.003.0009","url":null,"abstract":"Some defences are available on grounds that are extraneous to copyright and are based either on other bodies of law, such as competition law or e-commerce protection, or on general legal principles. These include, for instance, defences available to Internet service providers for infringements carried out by their users, including defences for hosting, caching, and ‘mere conduit’. Others are available on the grounds of competition law, such as refusal to license or abuse of dominant position, which could have a legal basis of application—inter alia—in certain mass digital activities of online services. Other available defences fall under general legal principles that can be invoked in cases where copyright exceptions do not cover an activity for which there is a principle-based justification for the particular conduct. Such a justification could be the public interest or the doctrine of the ‘abuse of right’. There are also a number of uses that can be permitted on grounds of benign infringement on the basis of the ‘innocuous use’ doctrine. Unlike other defences to copyright, these defensive rules represent instances where copyright may be subject to limitations as a result of its encounter with other legal orders. Such instances have either not been institutionalized within copyright law, such as speech entitlements or public policy privileges, or may have been partially included within it while offering principle-based explanations for acts of copyright infringement on the basis of legal grounds found in other areas of law or broader legal principles. These defences are an essential component to the understanding of the scope of permissible copyright use on the Internet as they can be extremely relevant in cases which involve online services and business models, such as hosting services, and online content use more broadly.","PeriodicalId":290989,"journal":{"name":"Defences to Copyright Infringement","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128779075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Speech Entitlements","authors":"Stavroula Karapapa","doi":"10.1093/oso/9780198795636.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198795636.003.0006","url":null,"abstract":"A number of copyright exceptions and limitations aim to promote the production of new copyright works and new authorship, and the protection of the public interest in gaining access to information and knowledge embodied in copyright-protected works. Most of these exceptions are premised on a fundamental human rights justification, such as freedom of speech or freedom of the press, or the right to access protected works without discrimination on grounds of disability. These include, for instance, reproduction by the press for the reporting of current events, quotations for criticism or review, and uses for the purpose of caricature, parody, or pastiche. They also include exceptions and limitations available to persons who are blind, visually impaired, or otherwise print-disabled. Although these exceptions and limitations are express manifestations of fundamental human rights, their scope remains relatively narrow and their legal nature and status against contractual overridability is not settled. Indeed, the permissibility of the relevant activities is subject to a number of internal limitations that may not work well in light of modern uses of materials in the online context. These include purpose limitations, such as the requirement that some uses ought to be non-commercial, scope limits (e.g. the doctrinal requirement that parodies have to be an expression of humour and mockery to be lawful), or restrictive principles that are inherent within copyright, like attribution to the source of the original work.","PeriodicalId":290989,"journal":{"name":"Defences to Copyright Infringement","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130155405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Scope Limitations","authors":"Stavroula Karapapa","doi":"10.1093/oso/9780198795636.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780198795636.003.0003","url":null,"abstract":"Copyright is not infringed in instances where the defendant’s activity falls outside the scope of exclusive rights. This is likely to be the case when the factual background of an alleged infringement does not meet the statutory prerequisites of a restricted act, for instance, when taking from an original work has not been such to amount to an act reserved by copyright, and hence falls beyond the scope of exclusive rights. As the Court of Justice of the European Union has affirmed in numerous cases, copyright protection is not absolute and exclusive rights are subject to a variety of internal limits that can serve as the basis of defensive claims in a practical sense. For instance, the court has indicated that exclusive rights are subject to internal scope limitations, some of which are relevant in the context of new technological uses. Hyperlinks, for example, do not infringe copyright when they are not addressed to a ‘new’ public, namely an audience that the rightsholders did not have in mind while making the work available online. Another example is the exhaustion principle, according to which the first authorized sale of content exhausts the authorial entitlement to further distributions. This principle is available in the online context only in relation to the resale of software, and this hinders innovative activity through the creation of electronic marketplaces for digital goods. Subject to examination in this chapter are the statutory and doctrinal limitations that inherently limit the scope of rights and remain outside the spectrum of proprietary entitlements.","PeriodicalId":290989,"journal":{"name":"Defences to Copyright Infringement","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129758440","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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