Open data are held to contribute to a wide variety of social and political goals, including strengthening transparency, public participation and democratic accountability, promoting economic growth and innovation, and enabling greater public sector efficiency and cost savings. However, releasing government data that contain personal information may threaten privacy and related rights and interests. In this Article we ask how these privacy interests can be respected, without unduly hampering benefits from disclosing public sector information. We propose a balancing framework to help public authorities address this question in different contexts. The framework takes into account different levels of privacy risks for different types of data. It also separates decisions about access and re-use, and highlights a range of different disclosure routes. A circumstance catalogue lists factors that might be considered when assessing whether, under which conditions, and how a dataset can be released. While open data remains an important route for the publication of government information, we conclude that it is not the only route, and there must be clear and robust public interest arguments in order to justify the disclosure of personal information as open data.

Copyright laws are important regulators of cultural expression, because they grant extensive rights to control the reproduction, adaptation and communication of ‘literary’ and ‘artistic’ works. The twin concepts of authorship and original work are central to copyright laws the world over; their interpretation driven by economic and technological concerns. In this collection of essays contributors from various academic disciplines query what diverse disciplines in the humanities ‒ including literary studies, aesthetics, film studies, and the philosophy of art ‒ have to offer law, in a quest to establish a more nuanced and useful conception of copyright and authorship. This introductory chapter ‘sets the stage’ for the various explorations that follow, of notions of collaborative authorship and original works in academic thought, societal practice and as legal norms. To provide especially the readership not familiar with copyright lawmaking with a useful backdrop, a characterization of the current state of copyright law in Europe is given. The role of the EU as primary actor in copyright reform is described. We can then sketch what the pertinent questions are on authorship and copyright subject-matter, a.k.a. original intellectual creations, and how the authors of each contributions have addressed these.

The Berne Convention underscores the national treatment of foreign authors, allowing countries of the Union to protect designs through various means. Article 2(7) of the Convention (Berne) introduces a material reciprocity test, limiting copyright protection for works of applied art not protected in their country of origin. The Kwantum case (C-227/23), involving a dispute over a work of design or applied art, questions the application of the reciprocity test in the light of harmonised copyright law and the decision by the Court of Justice of the European Union (CJEU) in RAAP (C-265/19). The Dutch Supreme Court seeks clarity on whether EU law mandates a copyright limitation through reciprocity, especially for non-EU right holders. In EU law, the Design Directive and Design Regulation govern the relationship between copyright and design protection for works of applied art. Both instruments stress the possibility of the cumulation of rights, allowing registered designs to qualify for copyright protection. Judicial harmonisation, notably in Cofemel (C-683/17) and Brompton Bicycle (C-833/18), extended the originality requirements to all works – including works of applied art – and thus limited EU Member States’ autonomy. The proposed Design Directive and Design Regulation maintain the cumulation principle, aligning with CJEU case-law on originality. In this Opinion, the European Copyright Society (ECS) does not make any pronouncement on the desirability of cumulation. On the topic of material reciprocity, the CJEU ruled in RAAP that Art. 8(2) of the Rental and Lending Directive (RLD) prohibited a Member State from excluding non-EEA performers from equitable remuneration for communication to the public of their recordings. The Court clarified that limitations to this right could be introduced only by the EU legislature and had to comply with Art. 52(1) of the Charter of Fundamental Rights of the European Union (CFREU). Any limitation had to be clearly defined by law. The Court emphasised that any exclusion of non-EEA right holders from remuneration must be explicit, as the right fell within the fundamental right to intellectual property of Art. 17(2) CFREU. Additionally, the Court stated that Art. 8(2) RLD should not be interpreted as granting a remuneration right solely to the phonogram producer and excluding the performer who contributed to the phonogram. The ECS criticised the potential wider implications of RAAP, proposing an alternative interpretation of the remuneration right under Art. 4(2) of the WIPO Performance and Phonograms Treaty (WPPT), suggesting that it should apply only to performers towards whom a direct and unreserved obligation existed on the basis of the WPPT. The ECS also criticised the Court’s reliance on the CFREU, particularly insofar as the Court viewed harmonised rights as abstract rather than individual, thus creating uncertainty about limitations. The Court’s conclusion that only the EU legislature could limit the right for nationals of non-EU states raises concerns about the application of material reciprocity by Member States in the past, and the retroactive effects of the interpretation remain unclear, contributing to legal uncertainty. In RAAP, the CJEU interpreted the WPPT, emphasising compliance with TRIPS and the Berne Convention’s core provisions in EU law. The Court stressed that material reciprocity had to be explicit in statutory law, with only the EU legislature defining limitations under harmonised rules such as Art. 8(2) RLD. However, EU design legislation grants Member States autonomy despite harmonised concepts established in cases like Cofemel and Brompton Bicycle. Unlike in RAAP, the CJEU may have more flexibility in interpreting EU copyright law for applied art in the Kwantum case. Precedents like Cofemel and Brompton Bicycle allow the Court to interpret material reciprocity under Art. 2(7) Berne without legislative intervention. Two alternatives for the Court are to interpret Art. 2(7) as mandating material reciprocity, preventing internal market issues, or to declare Member States’ application compatible with EU law, whether they apply material reciprocity or offer unreserved national treatment to works of applied art on the basis of Art. 19 Berne. Comparing RAAP and Kwantum, material reciprocity differs under Art. 4(2) WPPT and Art. 2(7) Berne. RAAP dealt with a conditional exception, while Art. 2(7) Berne is a mandatory rule, implying that countries of the Union must deny copyright protection to works protected solely as designs and models in their country of origin. While countries can choose to set aside material reciprocity under Art. 19 Berne, if the CJEU views Art. 2(7) Berne as limiting copyright as an intellectual property right under Art. 17(2) CFREU, the requirements in Art. 52(1) CFREU are already fulfilled without legislative intervention. Applying these considerations to the Kwantum case, it is noted that Dutch law provides no more protection than Art. 2(7) Berne. Given Art. 2(7)’s precedence over domestic law in the Dutch legal order, Dutch courts must apply the material reciprocity clause unless EU law dictates otherwise. In our view, the CJEU could either recognise material reciprocity as a requirement of EU law or declare Member State rules that mirror Berne’s reciprocity clause to be compatible with EU law. In conclusion, Kwantum reflects the uncertainty stemming from RAAP. The ECS advocates for a nuanced approach to the international application of EU copyright and related rights, giving due consideration to the regulations of international conventions as part of the EU legal order. In the case of copyright protection of works of applied art, the CJEU could, as a first step, either apply the reciprocity rule set out in Art. 2(7) Berne directly, or leave it to the Member States to decide on material reciprocity or national treatment, in accordance with the principles of the Berne Convention. As a second step, the EU legislature would be well advised to address the questions raised by RAAP and Kwantum at a more fundamental level through legislative intervention.

After 30 years of harmonization at EU level, copyright and related rights remain decidedly territorial in scope. This is despite the continuous quest for an internal market and the profound impact on cross-border creation, dissemination and use of cultural content. This contribution recounts the outcome of research done on territoriality in the context of the ReCreating Europe project. It discusses why national territorial rights persist, what type of legal mechanisms the EU legislature employs to address the adverse effects of territoriality, and sketches a number of models for a unitary title based on Art. 118 TFEU which could be explored going forward.

The proposed Copyright in the Digital Single Market Directive (COM(2016)593) of July 2016 would introduce a EU wide new intellectual property right for publishers of press publications, or ‘PIP’. Publishers would have the exclusive right to authorize or prohibit any reproduction (in whole or in part, direct or indirect) and making available to the public of ‘press publications’, for a period of 20 years. This study examines the justifications for the proposed new PIP, and assesses how it would fit in the EU copyright framework. In this study, special attention is paid to the freedom of expression dimension, for two reasons. One is that the most important justification advanced in support of a publisher’s right is that it promotes a sustainable quality press and media pluralism. The vital role that the press play in democratic societies as public watchdog and forum for public debate — is a key consideration — in the interpretation of the fundamental right to freedom of expression as guaranteed under the European Convention on Human Rights and the Charter of Fundamental Rights of the EU. The second reason is that the introduction of an intellectual property right, i.e., an exclusive right to control information flows, itself constitutes an interference with freedom of expression. The main recommendation is that the EU legislator should elaborate a clear assessment of what pressing social need a PIP would serve, of the PIP’s proportionality and of alternative solutions (other than merely the option to encourage stakeholder dialogue, cf. the Impact Assessment). This is especially important because, for news and other public interest information, the European Court of Human Rights (ECtHR) upholds a strict standard of scrutiny. Any regulatory intervention must comply with the right to freedom of expression, as laid down in article 10 ECHR / 11 CFR.

As part of its broader digital strategy, the European Commission has articulated a data strategy. Its aim is to help grow “the use of, and demand for, data and data-enabled products and services throughout the Single Market”. In the eyes of the EC, promoting wider availability and use of data would stimulate not just “greater productivity and competitive markets, but also improvements in health and well-being, environment, transparent governance and convenient public services”. That is quite a shopping list. The data strategy has ramifications for intellectual property law, especially for the sui generis database right enshrined in the 1996 Database Directive.

As trade secrecy has become a widespread strategy for appropriating returns from innovation, problems related to globalization have come to the fore. Joint ventures among firms from different countries are now common; technological employees often switch jobs; modern business practices, including value-chain production methods, spread confidential information from developers to geographically dispersed manufacturers, distributors, sellers, and maintenance organizations. Moreover, developments in computer technology make it ever easier to take valuable information from remote locations. As its Preface suggests, the Directive on the protection of undisclosed information was enacted in recognition of these potential cross-border problems. While it attempts to reduce inconsistencies among the protective regimes of member states, it falls far short of harmonizing the law. For example, it explicitly imposes only a minimum standard, allowing member states to enact stronger protection; it does not affect certain national rules on disclosure (art. 1); and it gives member states the right to make exceptions to protect their legitimate interests (art. 5). Furthermore, experience in the United States suggests that many of the concepts used in the Directive are susceptible to multiple interpretations. Examples include “use of experience” (art. 1); “generally known,” “commercial value” and “reasonable steps” (art. 2). But despite the likelihood of divergence, the Directive does not include a choice of law rule and it is not evident that existing instruments on applicable law produce clear and workable answers. Using the U.S. experience and drawing on EU choice of law for contracts and torts, including intellectual property infringement, this Chapter offers views on the approach EU adjudicators could take to resolving transnational trade secrecy disputes.

As the rapid growth of the Open Government Partnership shows, it is by now conventional wisdom that opening up government information for broader use by industry, civil society and citizens produces many benefits. Better performing government, more citizen participation and impressive economic benefits. This paper analyses what the economic studies tell us about the estimated value of public sector information. It shows how challenging it is to get a clear sense of that value. The development of methods to actually measure the wider impacts of opening up government information is work in progress. A recent addition are instruments to rank public sector effort in opening up. What do these new strands of monitoring add to the economic figures? How do economic benefits relate to the many professed advantages – be it social, political or economic – of openness? As we start to unpack this, we can also look forward, to the long-term implications for the regulatory framework in the EU. Special focus will be on the Directive on re-use of public sector information a.k.a. the Public Sector Information Directive (Directive 2003/98/EC as amended by Directive 2013/37/EU).

The EU Directive on Re-use of Public Sector Information of 2013 (the PSI Directive) is a key instrument for open data policies at all levels of government in Member States. It sets out a general framework for the conditions governing the right to re-use information resources held by public sector bodies. It includes provisions on non-discrimination, transparent licensing and the like. However, what the PSI Directive does not do is give businesses, civil society or citizens an actual claim to access. Access is of course a prerequisite to (re)use. It is largely a matter for individual Member States to regulate what information is in the public record. This article explores what the options for the EC are to promote alignment of rights to information and re-use policy. It also flags a number of important data protection problems that have not been given serious enough consideration, but have the potential to paralyze open data policies.

Copyright laws are important regulators of cultural expression, because they grant extensive rights to control the reproduction, adaptation and communication of ‘literary’ and ‘artistic’ works. The twin concepts of authorship and original work are central to copyright laws the world over; their interpretation driven by economic and technological concerns. In this collection of essays contributors from various academic disciplines query what diverse disciplines in the humanities ‒ including literary studies, aesthetics, film studies, and the philosophy of art ‒ have to offer law, in a quest to establish a more nuanced and useful conception of copyright and authorship. This volume brings together scholars from a range of disciplines to explore the challenges inherent in translating aesthetics and creativity studies to concepts of copyright.

My focus in this piece is on the interplay between the legal concepts of work, copy and adaptation in light of the now ubiquitous ‘new’ forms or genres of works that online networks enabled. Can European copyright law accommodate the increased fluidity of some of these work genres? What avenues might be taken to attenuate the gap between legal and social practices? I explore potential avenues for reform, and in doing so take on board some insights from non-legal disciplines, notably genre and adaptations studies.

Technological and economic concerns have long been the drivers of debate about copyright. But diverse disciplines in the humanities - including literary studies, aesthetics, film studies, and the philosophy of art - have a great deal to offer if we wish to establish a more nuanced and useful conception of copyright and authorship. This volume brings together scholars from a range of disciplines to explore the challenges inherent in translating aesthetics and creativity studies to concepts of copyright, especially as longstanding approaches are troubled by the rise of the digital.

The following analysis is aimed at identifying best practices on legal rules and contractual transfers of rights in the area of public sector works in different European Union countries. A particular attention is devoted to cultural institutions legal rules and practices as well. More precisely, this document focuses on three different levels of the public sector works production and circulation: i. legal rules on protectability of works, ii. legal rules and contractual practices on rights ownership, iii. legal rules and other practices implemented within the cultural institutions. Please note that this deliverable was written on the basis of national responses to the questionnaire provided by the LAPSI 2.0 partners and that this list is not intended to be exhaustive. This deliverable mainly focuses on copyright, while the sui generis database protection will be further analysed at a later stage.

The EU Public Sector Information Directive (2003/98/EU as amended by Directive 2013/37/EU) sets out a general framework for the conditions governing the right to re-use information resources held by public sector bodies in EU Member States. It includes provisions on non-discrimination, transparent licensing and the like. It is the main EU instrument for stimulating the creation of value added information products and services (tools, apps, content) based on government data. The Directive does however not regulate access as such, but builds on national public access regimes. Freedom of information acts are a key instrument for regulating public access. Working Group 2 of the EC's network on Legal Aspects of Public Sector Information assessed what 're-use' friendly provisions freedom of information acts exists in EU countries.