Paris Embraces Modern Art – But Not in Court: Opinion on the Cour d’Appel de Paris Decision – Jeff Koons v Franck Davidovici

In February 2021 the Paris Court of Appeal (Cour d’appel de Paris) rendered a decision against the US artist Jeff Koons, holding that he had infringed copyright relating to an advertisement photography that was more than 30 years old. Jeff Koons is famous for his Neo-pop Appropriation art – kitsch for some, a provocative breach with the traditional notion of art for others. It was not the first time Koons has had to defend his work in court. The French decision is particularly interesting, however, as it shows a very narrow understanding of the copyright exceptions. It is an illustrative example of the issues resulting from CJEU’s approach in Pelham, Spiegel Online and Funke Medien, where the Court held that once the recognisability of original elements has been established, the only way out of the infringement leads through the formal exceptions and limitations of the InfoSoc Directive. Based on the decision, I will reflect on the openness of copyright for art-specific forms of referencing and in particular analyse the subject matter and scope of the parody exception and contrast it with less formal approaches to consider new creative elements. I will also analyse the question of applicable law in internet cases.

Knowledge of students of the exceptions and limitations clause in copyright administration in academic libraries in Ghana

Copyright exceptions and limitations, which allow information consumers the right to use copyrighted materials without necessarily obtaining permission from or payment to the rightsholder, promote advances in the arts and sciences. Poor knowledge of copyright laws results in improper use of copyrighted materials. However, the extent to which academic library users in Ghana know about the exceptions and limitations, as well as their understanding of permissible use of information in the Copyright Act 690, 2005 of Ghana are not known. The sequential mixed methods approach was employed to collect data from 530 postgraduate students from two public and two private universities in Ghana to assess their knowledge of copyright exceptions and limitations, as well as their understanding of permissible use of information in Copyright Act 690, 2005 whilst using the services of their libraries. The study shows that students were poorly knowledgeable about the various applications of the exceptions and limitations clause in the copyright laws of Ghana: students were either indifferent (i.e. ‘neutral’), or ‘disagree’, and ‘strongly disagree’ on whether the Copyright Act 690, 2005 had clauses on exceptions and limitations on various uses of information such as for ‘Private copying’, for ‘Quotations’ or ‘For the benefit of persons with disability’. Over 50% of respondents were not sure that the copyright laws of Ghana had provisions for permissible use of information. Age and gender of respondent significantly influenced these responses: older students 46 years and above, and females, were more knowledgeable compared to younger students and males respectively about exceptions and limitations for ‘Private copying’, and ‘For the benefit of people with disability’ in the copyright laws of Ghana. Policymakers in Ghana should therefore adopt youth- and gender-focus strategies in copyright education for efficient administration of copyright laws in academic libraries.

Article 1—Subject Matter and Scope

This chapter explains that Directive 2019/790 lays down rules harmonise the Union law applicable to copyright and related rights in the framework of the internal market, particularly digital and cross-border uses of protected content. It analyses the Directive's rules on exceptions and limitations to copyright and related rights and the facilitation of licences. It also looks at rules that aim to ensure a well-functioning marketplace for the exploitation of works and other subject matter. The chapter reviews directives that have been adopted in the area of copyright and related rights that contribute to the functioning of the internal market, provide a high level of protection for rightholders, facilitate the clearance of rights, and create a framework in which the exploitation of works and other protected subject matter can take place. It points out how a harmonised legal framework contributes to the proper functioning of the internal market, and stimulates innovation, creativity, investment and production of new content.

Article 7—Common Provisions

This chapter discusses the common provisions in Article 7 of Directive 2019/790, the European directive on copyright. It explains the application of the Directive to special cases that do not conflict with the normal exploitation of works or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholders. It also seeks to achieve a fair balance between the rights and interests of authors, other rightholders, and users. The chapter mentions the protection of technological measures established in Directive 2001/29/EC, which remains essential to ensure the protection and the effective exercise of the rights granted to authors and other rightholders under Union law. It stresses the maintenance of protection while ensuring the use of technological measures that do not prevent the enjoyment of the exceptions and limitations provided in Directive 2019/790.

Article 5—Use of Works and Other Subject Matter in Digital and Cross-Border Teaching Activities

This chapter analyzes Article 5 of Directive 2019/790, copyright directive of the Digital Single Market in Europe. It discusses the use of works and other subject matter for the sole purpose of illustration for teaching through secure electronic environments that occur solely in the Member State where the educational establishment is founded. It also mentions the task of Member States to provide fair compensation for rightholders for the use of their works or other subject matter. The chapter explores the exceptions and limitations outlined in Directive 2019/790, which seek to achieve a fair balance between the rights and interests of authors, other rightholders, and users. It cites the protection of technological measures established in Directive 2001/29/EC that remains essential to ensure the protection and the effective exercise of the rights granted to authors and to other rightholders under the Union law.

Article 4—Exception or Limitation for Text and Data Mining

This chapter focuses on Article 4 of Directive 2019/790, the European copyright directive, which require Member States to provide for an exception or limitation for reproductions and extractions of works and other subject matter for the purposes of text and data mining. It talks about digital technologies that permit new types of uses that are not clearly covered by the existing Union rules on exceptions and limitations in the fields of research, innovation, education, and preservation of cultural heritage. It also describes the optional nature of exceptions and limitations that could negatively impact the functioning of the internal market. The chapter discusses the exceptions and limitations provided in Directive 2019/790 that seek to achieve a fair balance between the rights and interests of authors, other rightholders, and users. It clarifies that text and data mining can be carried out in relation to mere facts or data that are not protected by copyright.

Article 25—Relationship with Exceptions and Limitations Provided for in Other Directives

This chapter analyzes the relationship with exceptions and limitations provided for in other directives, which is stipulated in Article 25 of Directive 2019/790, a European copyright order. It talks about Member States that may adopt or maintain in force broader provisions that are compatible with certain exceptions and limitations. It also cites Directive 96/9/EC regarding the legal protection of databases. The chapter mentions Directive 2001/29/EC of on the harmonisation of certain aspects of copyright and related rights in the information society. It points out the task of Member States to implement legislation that are consistent with Directive 96/9/EC and Directive 2001/29/EC.

EXCEPTIONS AND LIMITATIONS ON PROPERTY COPYRIGHT ACCORDING TO THE LAWS OF THE UNITED KINGDOM AND UKRAINE: A COMPARATIVE ANALYSIS

The author in the article explores the provisions of «The Copyright, Designs and Patents Act», concerning exceptions to copyright (Copyright Exceptions). The article describes the provisions of the Chapter III of the UK law «Acts Permitted in relation to Copyright Works».It is established that Copyright Exceptions allow the use of works by any person that will not be considered as copyright infringement in compliance with the conditions specified by law. This formulation differs from the norms of national legislation.Articles 21−25 of the Law of Ukraine define the norms on free use of works. In general, works may be used without the permission of the copyright subject and without payment of remuneration for compliance with the conditions specified in these articles of the Law.Unlike national law, UK law provides exceptions where the use of work will not be considered as copyright infringement. This approach is considered the basis of the doctrine of «fair dealing». The doctrine defined by UK law is used to establish in practice in each case legality of actions of the person. A comparison is made between «the free use» and «fair dealing». The difference between these concepts are established. Despite these differences, the doctrines of «fair dealing» and «free use » do not contradict each other. They are similar in terms of defining exceptions to copyright, when the property rights of copyright holders are limited, sothe use of works by any person will not be considered as infringement of this right.The article analyzes main exceptions, provided by the UK Act:1. Exceptions in the interests of persons with visual disabilities.2. Exceptions for educational establishments.3. Exceptions for libraries, archives.4. Exceptions for the purpose of parliamentary and judicial proceedings.5. Exceptions to copyright in computer programs, databases.6. Other exceptions.The author describes in detail Copyright Exceptions that are new to national legislation.Based on the analysis, the author draws conclusions. Unlike the Law of Ukraine, the list of copyright exceptions in the UK Law is expanded.The law of this country takes into account almost all exceptions and limitations to copyright provided by European law. The conditions under which the use of a work by a person will not be considered as copyright infringement are quite detailed.Unlike the law of the United Kingdom, the Law of Ukraine does not currently have such restrictions on property copyrights as «Making of temporary copies», «freedom of panorama», «reproduction of works for the purpose of parliamentary proceedings», «reproduction of works for demonstration or repair of equipment». The current provisions of the Law of Ukraine about the free use of works need to be supplemented. Regulations about the free reproduction of works for study, reproduction of works by libraries, archives need to be clarified. The author in the article analyses the other issue of application of copyright exceptions and provides proposals for amendments to national copyright law.

Exceptions and limitations to copyright and related rights in the light of the caselaw of the Court of Justice of the European Union

Exceptions and limitations are an integral part of any effective copyright systems, they play a crucial role in striking a fair balance between the interests of the creators and rightholders, on the one hand, and those of the users of the protected works, on the other. The exceptions and limitations serve to secure such fundamental values as freedom of expression and information, freedom of art, science, research and education. Since the exceptions and limitations are not fully harmonised in the European Union, the lack of legal certainty is being cured by the caselaw of the Court of Justice. The role of the Court preliminary rulings in interpreting the relevant legal provisions and providing clarifications as to their application cannot be overemphasised. Moreover, in recent cases the Court of Justice considered the exceptions and limitations to copyright in the light of the European Convention on Human Rights and the settled caselaw of the European Court of Human Rights. Therefore, it is an opportunity for us to observe the growing attention of the Court of Justice to the human rights and fundamental freedoms protected by the European Convention.

The Interpretations of Exceptions and Limitations Under Vietnamese Copyright Law in Case of Quotation of a Work

The exceptions and limitations in copyright law have been firmly established by the Berne Convention. Indeed, these foundations consolidate and facilitate the unification in protecting copyrights of member states’ domestic laws. Nevertheless, the understanding and interpretations of each member are notably different and inadvertently maintain the inconsistency in international law. On that basis, the article analyzes the practice of Berne Convention’s codification and application in Vietnamese laws and judicial practice. Thereafter, the article emphasizes that Vietnamese intellectual property law has attempted to internalize the Berne Convention’s provisions on the limitations and exceptions of copyright law and proposes solutions to ameliorate such attempts. The article then shows the practice in Vietnamese judgment in order to show how Vietnamese intellectual property law receive the provision of limitations and exceptions in copyright law.