This blog post examines the copyright implications of online creation and sharing of literary content in the EU, drawing insights from the Möbius Project. It explores copyright ownership, exploitation, and liability, providing guidance to policymakers and stakeholders in the evolving book publishing industry.
The Möbius Project and the Digital Revolution in the Book Publishing Industry
The digital era has transformed the book publishing industry, leading to the emergence of innovative business models that blur the boundaries between consumers and producers, giving rise to the concept of prosumers. Launched in March 2021, the ongoing H2020 Möbius Project develops an innovative online platform called the Möbius Book to empower prosumers to create and share their literary works, circumventing the challenges posed by the traditional value chain of the publishing industry. As a consortium partner of the Möbius Project, CiTiP (Centre for IT & IP Law) KU Leuven plays a vital role by providing a comprehensive understanding of the copyright implications associated with online creation and sharing of literary content in the European Union (EU). After shortly presenting the innovations of the Möbius Book platform, this blog post delves into three key considerations stemming from the online creation and sharing of literary works by prosumers, as extensively explored in Deliverable 3.3 of the Möbius Project: copyright ownership, copyright exploitation, and copyright liability.
The Möbius Book Platform: Möbius Creator, Möbius Player and the Prosumers Intelligence Toolkit
The Möbius Book will serve as a multi-layered online platform that comprises Möbius Creator, Möbius Player, and the Prosumer Intelligence Toolkit (PIT). Möbius Creator will allow prosumers to transform their own stories into immersive experiences via a web application. As such, Möbius Creator will not only provide prosumers with the ability to create their literary works but also enable prosumers to enrich their works by incorporating related audiovisual materials. Moreover, prosumers will be able to share their immersive literary works with a broad audience through the Möbius Player, which is an interactive mobile application for readers to consume immersive books. Individual users will be able to use the Möbius Player for immersive reading (text + binaural audio) and enjoying the social interaction features. Last but not least, the Möbius Book platform will provide prosumers and publishers with the PIT, which is an extensive dataset consisting of various types of insights related to fanfiction literary works collected from prosumer online fandom communities such as Archive of Our Own (AO3).
Copyright Ownership
Prosumers will be able to create original as well as fanfiction literary works by using the Möbius Book platform. Similar services are offered in today’s world by online platforms, such as AO3, Fanfiction.net, Wattpad, and Tumblr. The creation of a literary manuscript through an online platform by prosumers, first and foremost, gives rise to the question of copyright ownership. With a blurring of traditional roles, it becomes essential to determine which works are eligible for copyright protection and who is entitled to benefit from the exclusive rights granted by copyright.
International copyright law follows the “creator doctrine,” which states that the author of an original work created on the internet is typically considered the first owner of the copyright, similar to the analog world. However, international treaties lack clear guidance on the definition of authorship. The Berne Convention suggests that the author refers to the natural person who created the work. The EU directives, except for audiovisual works and computer programs, do not extensively address authorship. National approaches within the EU differ, with civil law countries considering the natural person as the author, while common law jurisdictions may recognize legal entities for cinematographic works or broadcasts.
Copyright law protects original expressions of ideas, not the ideas themselves. In the EU, a work must be original to qualify for copyright protection, as established by the case law of the Court of Justice of the EU (CJEU,) particularly the Infopaq decision. Originality is defined as the author’s own intellectual creation, emphasizing the unique elements that reflect the author’s personality or personal touch.
Copyright Exploitation
Copyright exploitation is another key consideration in the online creation and sharing of literary content. The Möbius Book Platform, like Wattpad, AO3, and Fanfiction.net, will host user-generated content, including fan fiction, where prosumers create derivative works based on existing books, movies, or TV shows. This raises questions about copyright boundaries and the rights of original creators versus the creative freedom of prosumers.
Creating fan fiction without rightsholders’ consent is generally a copyright infringement in the EU unless an exception applies. “Right clearance” involves obtaining permission through licenses or rights transfer to lawfully use copyrighted material. Prosumers must enter into license or assignment agreements with copyright holders to use their works.
While rights clearance is the primary way to ensure the lawful creation of derivative works, limitations and exceptions to copyright provide flexibility for prosumers on online platforms. The parody exception, provided by the Digital Single Market Directive (CDSM Directive) and the Information Society Directive, is particularly relevant for fan fiction. In Deckymn, the CJEU defined parody as humorously evoking an existing work while noticeably differing from it, ensuring uniform interpretation throughout the EU.
The quotation exception is another significant exception for using pre-existing works in fanfiction. According to the Berne Convention and EU member states’ national laws, making quotations from lawfully available works is permissible if they comply with fair practice and their extent is justified by the purpose. This exception applies to various sources, including press summaries of newspaper articles and periodicals.
Copyright Liability
The third consideration revolves around the online creation and sharing of literary works is copyright liability. The unauthorized use of copyright-protected works on online platforms can result in copyright infringement, raising questions about the copyright liability of platforms. Major online platforms like Fanfiction.net, Tumblr, and Wattpad frequently face legal disputes over copyright liability claims.
Following the adoption of the CDSM Directive in 2019, the copyright liability of certain online platforms is currently governed according to a multi-level approach in the EU. Aimed at addressing the so-called value gap, Article 17 of the CDSM Directive introduced strict liability rules on online platforms that qualify as an online content-sharing service provider (OCSSP) for the copyright infringements committed by platform users. Hence, online platforms that qualify as an OCSSP under Article 2(6) of the CDSM Directive and accompanying recitals are now subject to the direct liability of Article 17 of the CDSM Directive, which also involves the controversial upload filtering obligations. The definition of OCSSPs in Article 2(6) of the CDSM Directive includes platforms whose primary purpose is to store and provide public access to a large amount of copyright-protected works uploaded by users, organized and promoted for profit-making purposes. Hence, platforms like Möbius Book, Fanfiction.net, Tumblr, and Wattpad may fall in the scope of this definition.
Although online platforms that do not qualify as OCSSPs remain unaffected by the direct liability regime introduced by Article 17 of the CDSM Directive, the scope of their copyright liability might still be significantly widened by the recent case law of the CJEU. The new approach endorsed by the CJEU in its recent case law shows substantial similarity with the lex specialis primary liability regime introduced by Article 17 (1) of the CDSM Directive for OCSSPs, which considers providing an online content sharing platform within the meaning of Article 2 (6) of the CDSM Directive an act of communication to the public of all the contents shared on that platform.
Conclusion
The online creation and sharing of literary content in the EU raise important copyright implications. The emergence of prosumers and innovative platforms like Möbius Book brings forth considerations of copyright ownership, exploitation, and liability. Policymakers and stakeholders must navigate this evolving landscape to safeguard the rights of creators while fostering innovation. Understanding these implications is vital for achieving a balanced approach that respects copyright while enabling creative expression in the digital age.
The Möbius Project has received funding from the European Union’s (Horizon 2020/ Horizon Europe) research and innovation programme under Grant Agreement no 957185.
The post Insights from the Möbius Project: Unveiling the Copyright Implications of Online Creation and Sharing of Literary Content in the EU appeared first on CiTiP blog.
