European Commission - Green Paper: Copyright in the Knowledge Economy - Comments by the Max Planck Institute for Intellectual Property, Competition and Tax Law 2009, 20
Auch veröffentlicht in: IIC, 40,3 (2009), 309 - 327
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.
