European Commission - Green Paper: Copyright in the Knowledge Economy - Comments by the Max Planck Institute for Intellectual Property, Competition and Tax Law

20 Pages Posted: 23 Dec 2008 Last revised: 16 Jul 2014

Reto Hilty

Max Planck Institute for Innovation and Competition; University of Zurich; Ludwig Maximilian University of Munich

Sebastian Krujatz

Max Planck Institute for Innovation and Competition

Benjamin Bajon

Max Planck Institute for Innovation and Competition

Alfred Frueh

Max Planck Institute for Innovation and Competition

Annette Kur

Max Planck Institute for Innovation and Competition

Josef Drexl

Max Planck Institute for Innovation and Competition; Ludwig Maximilian University of Munich

Christophe Geiger

Université de Strasbourg - CEIPI; Max Planck Institute for Innovation and Competition; Case Western Reserve University School of Law, Spangenberg Center for Law, Technology and the Arts

Nadine Klass

Max Planck Institute for Innovation and Competition

Date Written: December 3, 2008

Abstract

This paper focuses on an important subset of the knowledge economy: the area of scientific research. Wide dissemination and accessibility of scientific information in the online environment are at the core of today's knowledge economy. To a large degree, scientific information is embedded within scholarly works, such as journal articles, which are subject to copyright protection.

Limitations most relevant to scientific research provided for in Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (InfoSoc Directive) are important tools to ease access to relevant information for purposes of scientific research on the end-user level. They need to be preserved and, where possible, adequately extended.

However, even if widely introduced in all Member States and made immune against technological protection measures, these limitations alone may not guarantee wide dissemination and accessibility. The more publications become available in electronic form only, the greater the risk that libraries and scientific end users will face a single-source situation, forcing them to pay unreasonable prices or accept unreasonable conditions for accessing (for the most part publicly financed) scholarly contents, or to desist from using the relevant contents at all. Contractual arrangements between rightholders and users - as addressed in the Green Paper - are likely to benefit rightholders more than users. Limitations allowed for in the InfoSoc Directive cannot cope with these problems since they only take effect at the user level, i.e. when the content has already been procured. Wide dissemination and accessibility may need to be addressed also on the level of the intermediaries, e.g. by securing the existence of multiple sources and fair competition among publishers and other intermediaries with respect to the individual piece of scholarly work, such as an individual journal article.

In this paper, we suggest certain elements that should be considered in the course of a legislative reform on the EU level, following a two-tier approach:

(1) At the end-user level, limitations most relevant to scientific research should be mandatory, immune towards contractual agreements and technological protection measures, and should be construed as providing a bottom line, which national legislation should not fall below. In return, original rightholders should receive adequate compensation.

(2) At the level of intermediaries, it is strongly recommended to follow up closely the developments in the scientific publication market, in particular concerning the situation of (publicly funded) research institutions vis a vis publishing companies and database producers. If certain negative effects cannot be mitigated otherwise, additional legal measures may have to be considered, which may be based on copyright or competition law, or even combine elements of the two, as will be addressed in part 2 of this paper.

Keywords: Copyright, Scientific publishing, Directive on the harmonisation of certain aspects of copyright and related rights in the information society

Suggested Citation

Hilty, Reto and Krujatz, Sebastian and Bajon, Benjamin and Frueh, Alfred and Kur, Annette and Drexl, Josef and Geiger, Christophe and Klass, Nadine, European Commission - Green Paper: Copyright in the Knowledge Economy - Comments by the Max Planck Institute for Intellectual Property, Competition and Tax Law (December 3, 2008). Max Planck Institute for Intellectual Property, Competition & Tax Law Research Paper Series No. 08-05. Available at SSRN: https://ssrn.com/abstract=1317730 or http://dx.doi.org/10.2139/ssrn.1317730

Reto Hilty (Contact Author)

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

HOME PAGE: http://www.ip.mpg.de

University of Zurich

Rämistrasse 74/7
Zürich, CH-8001
Switzerland

Ludwig Maximilian University of Munich

Munich, 80539
Germany

Sebastian Krujatz

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

Benjamin Bajon

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

Alfred Frueh

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

Annette Kur

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

Josef Drexl

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

HOME PAGE: http://www.ip.mpg.de

Ludwig Maximilian University of Munich

Munich, 80539
Germany

Christophe Geiger

Université de Strasbourg - CEIPI ( email )

11 fue de Marechal Juin
BP68
Strasbourg
France

HOME PAGE: www.ceipi.edu

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

Case Western Reserve University School of Law, Spangenberg Center for Law, Technology and the Arts

11075 East Boulevard
Cleveland, OH 44106-7148
United States

Nadine Klass

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

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