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

Anglo-America fair use doctrine open factors case-by-case approach (judge) flexibility quick reactions to new developments Continental Europe statutory limitations fixed requirements closed catalogue of limitations (legislator) legal certainty slow reactions to new developments Regulation of copyright limitations

‘ 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.’ Art. 5(5) EU Copyright Directive

broad exclusive rights exhaustive enumeration of exceptions three-step test Restrictive EU acquis

‘…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) CJEU, Infopaq

European Community closed catalogue controled by open factors no flexibility no legal certainty very slow reactions to new developments = worst case scenario structural problem not only if three-step test in national law (+) (France) but also if three-step test in national law (-) (The Netherlands) Dilemma

Ways out of the dilemma

‘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, FA Premier League

‘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) CJEU, Eva-Maria Painer

exception prototypes at EU level Precisely-defined exceptions?

‘… 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)(a) 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)(c) 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)(d) InfoSoc Directive

‘… incidental inclusion of a work or other subject-matter in other material;…’ Art. 5(3)(i) InfoSoc Directive Art. 5(3)(k) InfoSoc Directive ‘… use for the purpose of caricature, parody or pastiche;…’

but still closed list of legitimate purposes Some inherent flexibility

Opening up the closed list

‘ 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 – list of legitimate purposes serves as reference point for new use privileges expansion regulated by open-ended factors of the three-step test New Art. 5(5) Copyright Directive

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) ‘Enabling function’ of the three-step test

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 –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

‘certain special cases’ does not preclude open list of legitimate purposes WTO Panel – Copyright 2000, para : ‘ 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.’ Conflict with the three-step test?

identification of special cases by the legislator identification of special cases by the judge Ensuring legal certainty

Current developments

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 Growing interest in fair use solutions

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