1. Copyright / Legal liability Paul Van den Bulck WWW.ULYS.NET paul.vandenbulck@ulys.net Brussels 6 th of february 2004 Law of : New Technologies Intellectual Property Media and Entertainment Commercial Law Lawyer at the Brussels Bar Lecturer at the University of Strasbourg Assistant at the University of Brussels

2.  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) Preliminary remarks

3. 3 aspects : I. Find the information II. Extract the information III. Deliver the information Legal and information watch

4.  analogue (“paper”)  electronic (internet,..)  verbal sources (political speeches, declarations, public lectures,, …) I. Finding of the information - Various medium : - No specific legal problem linked to the medium

5. II. Extraction of the information - Protection of the information by the copyright framework - Protection by the databases legal framework

6. 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.

7. 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)

8. 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.

9. Legal system : - Protection of the presentation of the database :  “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 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 : - Protection of one or several data by copyright : data = work of author

10. 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…)

11. III. Delivery of the Information 3 aspects :  Nature of the information  Means of delivery  Others Liabilities than those linked to copyright “sensu lato”

12. A. Nature of the information - Raw information (as find) - Processed information

13. 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

14. 2. Processed information  The processed information may be eligible to copyright protection  The processed information may be eligible to databases protection

15. B. Means of delivery - Delivery via website - Delivery by e-mail

16. 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

17. - 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…)”

18. 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

19. - 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) :

20. 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

21. 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…

22. 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

23. Focus : what about SPAM ? 2 Directives to combine :  Directive 2000/31/EC on electronic commerce  Directive 2002/58/EC on privacy and electronic communications

24. 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

25. 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

26. IV. Example: Euro Info Center Namur

30. 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

32. & WWW.ULYS.NET paul.vandenbulck@ulys.net Q UESTIONS c OMMENTS