Maria Martin-Prat reported to replace Tilman Lueder as head of unit for copyright at European Commission

1257323036PS4picMARTINPRAT.JPGAccording to stories in the German and French press (links below), Tilman Lueder will be leaving his position as the head of union for copyright for the European Commission, for a new EC job in China. [The FT confirms Tilman is leaving, but suggests he will have a different assignment]. Tilman will reportedly be replaced by Maria Martin-Prat. Martin-Prat is now “Head of Unit Services I, Directorate General Internal Market, European Commission,” where she has worked on services. (More here and here)

Maria Martin-Prat’s appointment will be controversial, in part because she was previously Deputy General Counsel and Director of Legal Policy and Regulatory Affairs for the International Federation of the Phonographic Industry (IFPI), a trade association for recorded music publishers.

Oddly, when working for the IFPI, Martin-Prat was “on leave from the European Commission.”

In 2003, while Working for the IFPI, Martin-Prat was critical of the copyright private copying exception:

“According to Ms Martin-Prat, industry is fighting on three fronts: enforcement, the formulation of a new business model, and pleading for strong copyright protection. The industry, she claimed, is not trying to expand copyright but to ensure that the existing rights are meaningful. . . ”

“Ms Martin-Prat argued that private copying had no reason to exist and should be limited further than it is. She claimed that it was incompatible with the three-step test.”

At the ALAI congress 2001 at Columbia University School of Law, Martin-Prat presented a paper with the following title: “The scope of the legal protection of technological measures (access control/rights control) in the EU Directive on Copyright and Related Rights in the Information Society: the relation between such protection and exceptions to copyright and related rights.”

Martin-Prat was discussing the European Directive Directive on Copyright and Related Rights in the Information Society (Directive 2001/29/EC of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society. OJ L 167/10 of 22.6.2001.) and its relationship to copyright limitations and exceptions.

Here paper focused on Article 6(4) of the directive (see below).

These are a few quotes from her paper.

  • Voluntary measures and agreements are considered the best mean to address any possible tension between the use of technological measures and the benefit of exceptions. The need to leave time for parties to agree before government intervention is also recognized;
  • It is recognized that if there is a need for Member States to intervene to prevent the impairment of exceptions by the use of technological measures such intervention cannot weaken the effective protection of technological measures (which is the danger if countries address this issue by allowing circumvention or the development of a market in circumventing devices). Thus, EU countries can intervene vis à vis right holders and technology but not vis à vis the legal protection of technological measures;
  • The need to ensure full protection of technological measures in the case of works and other subject matter made available to the public via digital networks is recognized.

The paper concluded with these comments:

Article 6(4) [of the Directive) however gives rise to a number of difficulties arising mainly from:

  • The fact that the directive is based on the individual (and not necessarily coordinated) intervention of Member States;
  • The fact that the Directive does not provide for a meaningful harmonization of exceptions to rights,
  • The lack of definition of the exact circumstances under which Member States must/may intervene, and
  • The uncertainty as regards to the type of services that are beyond Member States’ intervention.

The legal uncertainty resulting from article 6(4), as well as its potential negative effects on the protection of rights, the development of business models and technology and the functioning of the European Internal Market are regrettable. They are at the same time the best reason for right holders and for industry to adopt a reasonable approach in the implementation and use of technological measures.

The following is the text from Article 6(4) of the Directive:

Article 6
Obligations as to technological measures

4. Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law in accordance with Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned.

A Member State may also take such measures in respect of a beneficiary of an exception or limitation provided for in accordance with Article 5(2)(b), unless reproduction for private use has already been made possible by rightholders to the extent necessary to benefit from the exception or limitation concerned and in accordance with the provisions of Article 5(2)(b) and (5), without preventing rightholders from adopting adequate measures regarding the number of reproductions in accordance with these provisions.

The technological measures applied voluntarily by rightholders, including those applied in implementation of voluntary agreements, and technological measures applied in implementation of the measures taken by Member States, shall enjoy the legal protection provided for in paragraph 1.

The provisions of the first and second subparagraphs shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.

When this Article is applied in the context of Directives 92/100/EEC and 96/9/EC, this paragraph shall apply mutatis mutandis.

Hague Convention on Choice of Court Agreements

CPTech saw Martin-Prat during the negotiations on the Hague Convention on Choice of Court Agreements. Martin-Prat was representing the IFPI, and the IFPI wanted the Convention to require, in the context of cross border transactions, the enforcement of the choice of court clauses in non-negotiated e-contracts between businesses and consumers, and the cross border enforcement of judgements against consumers — positions that were opposed by consumer rights organizations.

Eventually the Hague Convention negotiators rejected the lobbying by publishers on this topic and excluded contracts involving persons “acting primarily for personal, family or household purposes.”

Article 2 Exclusions from scope

This Convention shall not apply to exclusive choice of court agreements –
a) to which a natural person acting primarily for personal, family or household purposes (a consumer) is a party;

More context on the Hague Convention negotiation is available here.

Tilman Lueder’s departure from the copyright union was reported by the FT on March 30, 2011.

Other selected blogs and news reports on the appointment

See also:

  • Kerstin Jorna and Maria Martin-Prat, New rules for the game in the European copyright field and their impact on existing situations European Intellectual Property Review, 1994 Vol 16 No 4 p 145-153