The Copyright guide provides expert legal commentary on key issues for businesses. The guide covers the important developments in the most significant jurisdictions.
Last Updated April 18, 2018
Copyright is constantly evolving in many respects. The extension of the catalogue of protected works is an issue that has always been discussed, and therefore it is not surprising that the question as to whether the taste of a kind of cheese is copyrightable is pending before the European Court of Justice (as copyrightability of perfumes was in the past debated in some European countries). Another hot issue is the scope of the exploitation rights and – in a mirrored way - of exceptions/fair use. Here one should mention the increasing case law in USA and Europe relating to the appropriation of art and the possibility for the artist to make use of prior works of art in a transformative manner. Other important questions have been debated or have reached courts recently (such as the Naruto monkey selfie dispute, and other similar interesting cases), and would be worth mentioning. However, one feels that the most crucial line of evolution in copyright nowadays undeniably concerns the reshaping of legal concepts, due to the constant progression of technology in the digital era. Innovation incessantly creates new works of art, new forms of exploitation, new tools for protection. One of the hottest questions recently raised concerns about the creation of a new allied right for publishers of press publications for the digital use of their publication in the online environment; another key issue concerns the possible exhaustion of rights for digital copies. Exceptions (or fair use) in the digital environment are also discussed, as the online environment seems to require adjustments to traditional concepts. See, for instance, the EU-directive proposal for introducing new mandatory exceptions relating to the use of protected content in digitally supported and online teaching activities, the activity of text and data-mining carried out for the purposes of scientific research and, finally, digital preservation by cultural heritage institutions. Equally debated is the issue of internet service-provider liability, and policymakers are requested to find a solution to the so-called “value gap,” ie, the alleged mismatch between the value that some digital platforms would extract from works of art and the revenue returned to the rights-holders. Case law in relation to ISP liability, meanwhile, is taking different paths in Europe and USA; while in the latter jurisdiction right-holders are essentially forced to use the notice-and-take-down systems, with little hope of acting effectively against ISP for their liability, in Europe there appears to be a tendency to broaden liability when the ISP is taking an “active role” (it has awareness and control over the allegedly infringing activities). Finally, moving to the cloud does not only revolutionise business models, contracts and enforcement, but also requires the development of additional and new skills in privacy, cybersecurity, and artificial intelligence.
Copyright practitioners are therefore required to continue developing their knowledge in technology, extending their experience towards new markets and jurisdictions, and increasingly touching upon many additional issues that are complementary to those traditionally belonging to copyright matters. This Guide aims at providing such practitioners with some initial tools to deal with the increasingly challenging world of copyright.