AU Washington, PIJIP 12 September 2012 Fair Use and - VU-dare

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AU Washington, PIJIP 12 September 2012 Fair Use and - VU-dare
AU Washington, PIJIP
12 September 2012
Fair Use and Fair Dealing:
A European Perspective
Prof. Dr. Martin Senftleben
VU University Amsterdam
Bird & Bird, The Hague
Dilemma in EU
legislation
Regulation of copyright limitations
Anglo-America
Continental Europe
• fair use doctrine
• statutory limitations
• open factors
• fixed requirements
• case-by-case
• closed catalogue of
approach (judge)
limitations (legislator)
• flexibility
• legal certainty
• quick reactions to
• slow reactions to
new developments
new developments
Art. 5(5) EU Copyright Directive
‘The exceptions and limitations provided for in
paragraphs 1, 2, 3 and 4 shall only be applied
in certain special cases which do not conflict
with a normal exploitation of the work or other
subject-matter and do not unreasonably
prejudice the legitimate interests of the
rightholder.’
Restrictive EU acquis
broad
exclusive
rights
exhaustive
enumeration of
exceptions
three-step
test
CJEU, Infopaq
‘…that, according to settled case-law, the provisions
of a directive which derogate from a general principle
established by that directive must be interpreted
strictly …’ (para. 56)
• general principle: protection
• derogation: limitations
CJEU, Infopaq
‘This is all the more so given that the exemption must
be interpreted in the light of Article 5(5) of Directive
2001/29, under which that exemption is to be applied
only in certain special cases which do not conflict
with a normal exploitation of the work or other
subject-matter and do not unreasonably prejudice the
legitimate interests of the rightholder.’ (para. 58)
Dilemma
European Community = worst case scenario
• closed catalogue
• structural problem
• controled by open
• not only if three-step
factors
• no flexibility
• no legal certainty
• very slow reactions
to new developments
test in national law (+)
(France)
• but also if three-step
test in national law (-)
(The Netherlands)
Ways out of the
dilemma
CJEU, FA Premier League
‘In accordance with its objective, [the exemption of
temporary copying under Article 5(1) of Directive
2001/29] must allow and ensure the development
and operation of new technologies and safeguard
a fair balance between the rights and interests of
right holders, on the one hand, and of users of
protected works who wish to avail themselves of
those new technologies, on the other.’ (para. 164)
CJEU, Eva-Maria Painer
‘Article 5(3)(d) of Directive 2001/29 [= right of
quotation] is intended to strike a fair balance
between the right to freedom of expression of
users of a work or other protected subject-matter
and the reproduction right conferred on authors.’
(para. 134)
Precisely-defined exceptions?
exception
prototypes
at EU level
Art. 5(3)(a) InfoSoc Directive
‘…use for the sole purpose of illustration for
teaching or scientific research, as long as
the source, including the author's name, is
indicated, unless this turns out to be
impossible and to the extent justified by the
non-commercial purpose to be achieved;…’
Art. 5(3)(c) InfoSoc Directive
‘…use of works or other subject-matter in
connection with the reporting of current
events, to the extent justified by the
informatory purpose and as long as the
source, including the author's name, is
indicated, unless this turns out to be
impossible;…’
Art. 5(3)(d) InfoSoc Directive
‘…quotations for purposes such as criticism or
review, provided that they relate to a work or
other subject-matter which has already been
lawfully made available to the public, that,
unless this turns out to be impossible, the
source, including the author's name, is
indicated, and that their use is in accordance
with fair practice, and to the extent required
by the specific purpose;…’
Art. 5(3)(i) InfoSoc Directive
‘… incidental inclusion of a work or other
subject-matter in other material;…’
Art. 5(3)(k) InfoSoc Directive
‘… use for the purpose of caricature, parody
or pastiche;…’
Some inherent flexibility
but still closed
list of legitimate
purposes
Opening up the
closed list
New Art. 5(5) Copyright Directive
‘In cases comparable to those reflected in the
exceptions and limitations provided for in
paragraphs 1, 2, 3 and 4, the use may also be
permitted, provided that such use does not
conflict with a normal exploitation of the work
or other subject-matter and does not
unreasonably prejudice the legitimate interests
of the rightholder.’
New Art. 5(5) Copyright Directive
• similar solution proposed in Art. 5(5)
European Copyright Code
– WITTEM project
– www.copyrightcode.eu
• list of legitimate purposes serves as
reference point for new use privileges
• expansion regulated by open-ended
factors of the three-step test
‘Enabling function’ of the three-step test
Article 9(2) BC
Article 13 TRIPS
Article 10 WCT
‘Enabling function’ of the three-step test
‘It is understood that the provisions of Article 10 permit
Contracting Parties to carry forward and appropriately
extend into the digital environment limitations and
exceptions in their national laws which have been
considered acceptable under the Berne Convention.’
‘Similarly, these provisions should be understood to
permit Contracting Parties to devise new exceptions
and limitations that are appropriate in the digital
network environment.’
(Agreed Statement Concerning Article 10 WCT)
Challenge for civil law judges?
• general clauses not unusual in private law
– ‘Treu und Glauben’ in Germany
– ‘redelijkheid en billijkheid’ in the Netherlands
• even case precedent
– Dutch Supreme Court, 20 October 1995,
Dior vs. Evora, para. 3.6.2
– new exceptions on the basis of a comparable
balancing of interests
– room for further development in light of EU
Charter of Fundamental Rights?
National free adaptation rules
• Austria: § 5(2) Copyright Act
– requirement of ‘...constituting an independent,
new work in comparison with the original work.’
• Germany: § 24 Copyright Act
– requirement of ‘...new features of its own that
make the individual features of the original work
fade away…’
• Netherlands: Art. 13 Copyright Act
– requirement of ‘…constituting a new, original
work…’
Field of application
International
obligations
Conflict with the three-step test?
• ‘certain special cases’ does not preclude
open list of legitimate purposes
• WTO Panel – Copyright 2000, para. 6.108:
‘However, there is no need to identify explicitly
each and every possible situation to which the
exception could apply, provided that the scope of
the exception is known and particularised. This
guarantees a sufficient degree of legal certainty.’
Ensuring legal certainty
identification of
special cases by
the legislator
identification of
special cases by
the judge
Current developments
Growing interest in fair use solutions
• Netherlands: traditionally in favour of fair
use, but no success at EU level
• UK: interest in fair use expressed in
consultation on new legislation
• Ireland: interest in fair use expressed in
consultation on new legislation
• Germany: interest in more flexible
limitations in industry circles
The end. Thank you!
For publications, search for
‘senftleben’ on www.ssrn.com.
contact: [email protected]

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