Intellectual Property/Human Rights CIPIL Conference, 11 March 2017 Copyright and Freedom of Expression Prof. Dr. Martin Senftleben Vrije Universiteit Amsterdam Bird & Bird, The Hague

Contents Risk assessment Internal balancing External balancing CJEU jurisprudence External balancing Case law from Germany Case law from the Netherlands Limits of human rights approach

Risk assessment

‘…engine of free expression’ US Supreme Court, Harper & Row v. Nation Enterprises, 471 US 539 (1985)

So what’s the problem? grant of protection stimulates investment in new information products but may also frustrate follow-on innovation work 1 work 2

= copyright’s paradox

+ potential censorship ECtHR, 10 January 2013, case 36769/08, Ashby Donald/France

Internal balancing

EU acquis (InfoSoc Directive) exhaustive enumeration of exceptions three-step test broad exclusive rights

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 […]. This holds true for the exemption provided for in Article 5(1) of Directive 2001/29, which is a derogation from the general principle established by that directive, namely the requirement of authorisation from the rightholder for any reproduction of a protected work.’ (para. 56-57)

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)

definition of exceptions Restrictive approach fundamental freedoms definition of exceptions three-step test

Counterbalance

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

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)

CJEU, Deckmyn

CJEU, Deckmyn ‘In addition, as stated in recital 31 in the preamble to Directive 2001/29, the exceptions to the rights set out in Articles 2 and 3 of that directive, which are provided for under Article 5 thereof, seek to achieve a ‘fair balance’ between, in particular, the rights and interests of authors on the one hand, and the rights of users of protected subject-matter on the other.’ (para. 26)

CJEU, Deckmyn ‘It follows that the application, in a particular case, of the exception for parody […] must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody, within the meaning of Article 5(3)(k).’ (para. 27)

External balancing

Germany

Germania 3 Gespenster am toten Mann

German Federal Constitutional Court, 29 June 2000, Germania 3 Heiner Müller wrote the play ‘Germania 3 Gespenster am toten Mann’ embedded in his play substantive parts of works by Bertolt Brecht to discuss Brecht’s political positions owners of copyright in Brecht’s works assert that Müller went beyond the limits of quotations permissible under the German Copyright Act

German Federal Constitutional Court Always review in the light of fundamental rights possible German Federal Constitutional Court German Federal Court of Justice (Supreme Court)

German Federal Constitutional Court, 29 June 2000, Germania 3 proper balance required between the different constitutional rights at stake ‘The interest of copyright holders in protection against the exploitation of their works without consent [...] must be balanced against the interest of other artists which is protected by the freedom of art, to enter into an artistic dialogue and process of creation with regard to existing works without running the risk of financial interferences or interferences with regard to contents.’

German Federal Constitutional Court, 29 June 2000, Germania 3 copyright limitations to be construed in the light of freedom of artistic expression (Art. 5(3) German Basic Law) balancing of copyright/freedom of art at least when the possible economic harm flowing from a quotation cannot be perceived as significant second author’s interest in using a pre-existing work prevails over the exploitation interests of the original author

German Federal Constitutional Court, 31 May 2016, Metall auf Metall composer of ‘Nur mir’ (Sabrina Setlur) uses a rhythm fragment taken from the Kraftwerk piece ‘Metall auf Metall’ 2 seconds in constant loop Kraftwerk authors and phonogram producers of ‘Metall auf Metall’ (album ‘Trans Europa Express’) phonogram first published in 1977

German Federal Court of Justice, 20 November 2008, Metall auf Metall phonogram producer makes his investment with regard to each and every part of the sound recording the financial and organizational efforts are necessary not only with regard to the whole recording but also with regard to the smallest parts therefore, there is no part of the sound recording that remains unprotected even smallest fragments are protected

German Federal Court of Justice, 20 November 2008, Metall auf Metall protection of smallest fragments does not impede cultural follow-on innovation if it is possible for the secondary author to make a recording of equivalent sounds himself, there is no need to take over the sound recording of another producer

German Federal Court of Justice, 13 December 2012, Metall auf Metall II clarification of applicable standard namely: whether an average music producer is capable of making a recording himself which is comparable from a musical point of view relatively strict standard irrelevant if necessary effort can be deemed acceptable 2 days production, for example, is not unacceptable

German Federal Court of Justice, 13 December 2012, Metall auf Metall II

German Federal Constitutional Court, 31 May 2016, Metall auf Metall protection of smallest sound fragments in case of possibility to produce equivalent sound encroaches upon freedom of art (Art. 5(3) German Basic Law) focus on rationale underlying the grant of the neighbouring right not the opportunity to receive licensing fees for sound sampling but protection against phonogram piracy

German Federal Constitutional Court, 31 May 2016, Metall auf Metall final conclusion similar to decision in Germania 3 the economic harm flowing from the taking of a small sound fragment is not significant the impediment of artistic freedom in the field of sound sampling, by contrast, is significant focus on deterrent, freezing effect of legal uncertainty caused by the test of possibility to produce equivalent recording

D. Morrison, Bridgeport Redux (2008) https://ssrn.com/abstract=1334809 ‘…what I will refer to throughout the rest of my paper as the collage paradigm in sampling refers, essentially, to what derivative works sampling is not, i.e., the layered use of quantitatively and/or qualitatively insignificant samples to create new musical works that bear little or no resemblance to the original work.’ (p. 96)

German Federal Constitutional Court, 31 May 2016, Metall auf Metall

German Federal Constitutional Court, 31 May 2016, Metall auf Metall solution: interpreting copyright norms in the light of the guarantee of freedom of art either more restrictive interpretation of the scope of sound recording rights or broader application of the rule of ‘free adaptation’ in German copyright law freedom of expression thus no independent, direct basis for sound sampling

The Netherlands

reading copyright norms through the lens of human rights Implementation strategy direct application of human rights as external limitations of copyright reading copyright norms through the lens of human rights

Scientology/Karin Spaink

Court of Appeal of The Hague, 4 September 2003, Scientology/Spaink journalist Karin Spaink criticized Scientology on her webpage used quotations from confidential parts of court declarations (‘Fishman Affidavit’) reflecting the teachings and organization of Scientology Scientology argued that right of quotation was inapplicable Fishman Affidavit had not been published lawfully

Court of Appeal of The Hague, 4 September 2003, Scientology/Spaink right of quotation inapplicable instead: direct application of the guarantee of freedom of expression and information in Art. 10 ECHR quotations contribute to a legitimate form of criticizing Scientology’s questionable ideas and behaviour against this background, use of the documents do not amount to copyright infringement

Anne Frank Fonds (Basel)/ Anne Frank Stichting (Amsterdam)

District Court of Amsterdam, 23 December 2015, Anne Frank Anne Frank Fonds (Basel) established by Otto Frank to support social and cultural activities in the spirit of Anne Frank inherited copyright to Anne Frank’s works as only heir of Otto Frank Anne Frank Stichting (Amsterdam) maintains the Anne Frank House received the manuscripts of Anne Frank’s diaries as a loan from the Royal Dutch Academy of Science (KNAW)

District Court of Amsterdam, 23 December 2015, Anne Frank Anne Frank Stichting (Amsterdam) undertook in-depth manuscript analysis together with KNAW that required scanning of the manuscripts and transformation in XML-TEI format had plans to make the digital text versions of the manuscripts available online but declared to do this only after consent of the Fonds in Basel remaining question therefore: making of several copies for researchers

District Court of Amsterdam, 23 December 2015, Anne Frank copyright not expired according to rules concerning posthumous publication reproduction to obtain text in XML-TEI format amounts to infringement no copyright exception available to justify the use right of quotation inapplicable because use not confined to parts of the works use by researchers not covered by library reading terminal exception

District Court of Amsterdam, 23 December 2015, Anne Frank use by researchers does not constitute private copying use is not confined to copying for the purpose of preserving the manuscripts alternative basis for permitting the use?

District Court of Amsterdam, 23 December 2015, Anne Frank invocation of fundamental freedom of science as external limitation of copyright proportionality test public interest in this research is self-evident acceptance of copyright claim would lead to serious impediment of research activities no sufficient justification given by the Fonds (Basel) for asserting copyright against research activities in this case

Dutch Supreme Court, 3 April 2015, GS Media/Sanoma

Dutch Supreme Court, 3 April 2015, GS Media/Sanoma prejudicial questions about hyperlinking to illegal sources but important general observation ‘...that the judge, in case of a defence argument to that effect, must examine whether, in the concrete case, the enforcement of an intellectual property right cannot succeed because of another fundamental right.’ (para. 5.2.5) basis: CJEU Scarlet/SABAM and Telekabel Wien, ECtHR Ashby Donald

Limits of the approach

creation of new exceptions case-by-case Towards an EU fair use doctrine? creation of new exceptions case-by-case additional flexibility case-by-case

CJEU, 11 September 2014, case C-117/13, TU Darmstadt reading terminals: Art. 5(3)(n) ISD private copying: Art. 5(2)(a) and (b) ISD digitization: Art. 5(2)(c) ISD

contact: m.r.f.senftleben@vu.nl The end. Thank you! For further reading, see https://ssrn.com/abstract=2125021 contact: m.r.f.senftleben@vu.nl