Document

Report
Copyright / Legal liability
Paul Van den Bulck
Lawyer at the Brussels Bar
Lecturer at the University of Strasbourg
Assistant at the University of Brussels
Brussels
6th of february 2004
WWW.ULYS.NET
[email protected]
Law of :
• New Technologies • Intellectual Property • Media and Entertainment • Commercial Law •
Preliminary remarks
 Review on the basis of the European legislation
 Diversity of the geographic seats of the different
Euro Info Centers
 Diversity of the different national legislations
implementing the different European rules
(some of them are sometimes more restrictive
when the directives allow it)
Legal and information watch
3 aspects :
I. Find the information
II. Extract the information
III. Deliver the information
I. Finding of the information
- Various medium :
 analogue (“paper”)
 electronic (internet, ..)
 verbal sources (political speeches,
declarations, public lectures,, …)
- No specific legal problem linked to the medium
II. Extraction of the information
- Protection of the information by the copyright
framework
- Protection by the databases legal framework
A. Protection by the copyright
2 main types of rights:
- Economic rights: reproduction, communication
and distribution
- Moral rights: mainly the right of respect of the
integrity of the work and the right for the author
to have his name indicated on the work.
Various exceptions to the economic rights
- Vary from a member state to another
- Main exceptions included in the directive on
Information society and interesting the
Euro Info Centers
 Reproductions on paper or any similar medium
 Quotation (+ author’s name)
 Political speeches as well as extracts of public
lectures or similar work (+ author’s name)
B. Protection by the databases
legal framework (directive 96/9/EC)
Definition database :
(1) a collection of independent works, data or
other materials arranged
(2) in a systematic or methodical way
(3) and individually accessible by electronic
or other means.
Some Websites enter in the definition of the databases.
Legal system :
- Protection of the presentation of the database :
Copyright in favor of the author if : by reason of the selection
or arrangement of its contents,constitutes the author’s own
intellectual creation
- Protection of the database itself :
“Sui generis” right in favor of the “maker”:
the right of the maker of a database to prevent extraction
and or re-utilization of the whole or of a substantial part
of the contents of the database
 Condition of this right: the maker must show that there has
been a substantial investment in either the obtaining,
verification or presentation of the contents
- Protection of one or several data by copyright :
data = work of author
Right of the maker : prevent …
 Extraction: transfer to another medium
 Re-utilization: making available to the public
(distribution of copies, renting, transmission
on-line, etc…)
III. Delivery of the Information
3 aspects :
 Nature of the information
 Means of delivery
 Others Liabilities than those linked
to copyright “sensu lato”
A. Nature of the information
- Raw information (as find)
- Processed information
1. Raw information
- Duty to respect the author’s right (copyright),
except if possibility to invoke an exception:
 Duty to obtain the consent of the author
for the delivery;
 Usually payment of a compensation
for a license to use;
 Mentioning of his name.
- Duty to respect the protection given to the author
and maker of the databases:
 Prior and possible copyright on the data themselves
(photo, music, text…);
 Possible copyright on the presentation of the database
 “Sui generis” right of the maker of the database:
Duty to obtain the authorization for the extraction
or re-utilization of the data
2. Processed information
The processed information may be eligible
to copyright protection
The processed information may be eligible
to databases protection
B. Means of delivery
- Delivery via website
- Delivery by e-mail
1. Delivery via website
- Raw information:
 Duty to respect the copyright and databases legal framework
 Copyright: publication on a website of a protected work
is a reproduction and communication
 Databases: publication on a website of a protected work
is an extraction and a re-utilization
- Processed Information :
 eligible to protection by copyright
 eligible to protection by databases
 Utility to mention the protection :

©
 “the database ………….. is protected by the databases regulations.
It is strictly forbidden, without the consent of the maker, to extract
and/or re-utilize the whole or a substantial part of the content of
this database”
 Utility to use specific tools: PDF, technological measures
(directive on information society : access control/protection
process : encryption, scrambling, copy control mechanism, etc…)”
2. Delivery by e-mail
- Raw information :
 Duty to respect the copyright and databases legal framework
 Copyright: delivery via e-mail of a protected work is a
reproduction and communication
 Databases: delivery in a e-mail of whole or part of a
protected work is an extraction and a re-utilization
- Processed Information :
 Eligible to protection by copyright
 Eligible to protection by databases, but in practice
the e-mail in itself will not be a database, maybe
the attachment
 Utility to mention the protection
(Theory/practice? / carefulness) :
C. Others Liabilities than those
linked to copyright “sensu lato”
Others liabilities linked to the delivery of information
 via a website
Others liabilities linked to the delivery of information
 via e-mails
1. Others liabilities linked to the delivery
of information via a website
May vary from a member state to another :
 Erroneous information: contractual or extra-contractual
liability (utility of disclaimers concerning the accuracy of
the information)
 Press offence (Belgium)
 Answer right (Belgium)
 etc…
2. Others liabilities linked to the delivery
of information via e-mails
May vary from a member state to another :
 Erroneous information: contractual or extra-contractual
liability (utility of disclaimers concerning the accuracy
of the information)
 EC Regulations concerning the processing of personal
data and protection of privacy
 EC Regulations concerning SPAM
Focus : what about SPAM ?
2 Directives to combine :
 Directive 2000/31/EC on electronic commerce
 Directive 2002/58/EC on privacy and electronic
communications
Directive 2000/31/EC on electronic commerce
 Concept of commercial communication :
« any form of communication designed to promote,
directly or inderectly, the goods, services or image
of a company, organisation or person pursuing
a commercial, industrial or craft activity » (2 exceptions)
 Legal regime
• Article 6 : information to be provided
• Article 7 : unsolicited commercial communication
- SPAM must be clearly identified as such
- Opt-out regime
Directive 2002/58/EC on privacy and electronic
communication
 Concept of communication : « any information
exchanged or conveyed between a finite number of parties
by means of a publicly available electronic communications
service »
 Unsolicited communications (article 13)
• Opt-in regime : prior consent (direct marketing)
• Exception : opt-out if (i) existing commercial
relationship, (ii) same natural or legal person,
(iii) similar products or services and (iv) consumer
is given the opportunity to refuse reception
IV. Example:
Euro Info Center Namur
V. Conclusion
- Do not forget that the 3 steps of information watch
have legal consequences:
 Find
 Extract
 Deliver
 Check the rights upstream
 Mention the rights downstream and use protection devices
 Do not forget all other possible liabilities (accuracy, processing
of personal data, press offences, etc…)
 Use legal notice
Q
&c
UESTIONS
OMMENTS
WWW.ULYS.NET
[email protected]

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