Copyright / Legal liabilityCopyright / Legal liabilityPaul Van den Bulck

WWW.ULYS.NETpaul.vandenbulck@ulys.net

Brussels28 November 2002

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

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 aspects :

I. Find the information

II. Extract the information

III. Deliver the information

Legal and information watch

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

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 :

“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

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.

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…)