Flexing Authors’ Rights How copyright laws outside the US can become more flexible 2 nd Annual Peter Jaszi Distinguished Lecture American University, Washington College of Law 7 November 2013 Prof. P. Bernt Hugenholtz

Map of common/civil law countries

Not Permitted in (Some) Authors’ Right Countries (or Unsure) Showing © content in PPT at public lecture

Not Permitted in (Some) Authors’ Right Countries (or Unsure)

Showing photos in PPT at public lectures TV news reporting of an arts exhibition

Not Permitted in (Some) Authors’ Right Countries (or Unsure)

Showing photos in PPT at public lectures TV news reporting of an arts exhibition Using film fragments in documentaries

Not Permitted in (Some) Authors’ Right Countries (or Unsure)

Showing photos in PPT at public lectures TV news reporting of an arts exhibition Using film fragments in documentaries Posting user-generated content on social media

Not Permitted in (Some) Authors’ Right Countries (or Unsure)

Showing photos in PPT at public lectures TV news reporting of an arts exhibition Using film fragments in documentaries Posting user-generated content on social media Digitizing and indexing content for data mining, or for operating a search engine

Not Permitted in (Some) Authors’ Right Countries (or Unsure)

Typology of Limitations and Exceptions Copyright systems (common law countries)  Fair use: open norm allowing range of ‘fair’ uses  Fair dealing: list of L&E’s with some flexibility Authors’ right systems (civil law + EU):  Closed list of L&E’s  EU InfoSoc Directive (2001): exhaustive list of optional L&E’s

Why Authors’ Rights Systems are Suspicious of Fair Use Civil law made by the people, not the courts  judge is “mouth of the law” Authors’ rights based in natural law, favors authors over users  narrow ‘exceptions’ Concerns over legal certainty (‘floodgates’) Fears of US legal imperialism (“Fair US”) EU (or int’l) law does not permit fair use

Increasing Need for Flexible, Open Norms Accelerating pace of technological change Legislature cannot respond, must anticipate  more abstract, open norms EU harmonization requires extra cycle of law making Total legislative response time > 10 years!

Arguments against Flexibility Revisited Civil law has already moved to more open norms ‘Unlawfulness’, ‘reasonableness’, ‘fairness’ Increasing role for ‘unwritten law’

Arguments against Flexibility Revisited Civil law has moved to open norms AR systems moving away from natural law Public interest requires balancing of rights & freedoms Fundamental rights: property rights and freedoms

Arguments against Flexibility Revisited Civil law has moved to open norms AR systems moving away from natural law Legal certainty? FU is fairly predictable (Beebe, Samuelson, Netanel) Guidelines, Best practices Civil courts working around closed L&E’s Google Image Search case (German S.Crt. 2010) Three-step test (TRIPs, WCT) creates a safety net

Arguments against Flexibility Revisited Civil law has moved to open norms AR systems moving away from natural law Legal certainty? “Fair US”: more flexibility does not mean importing fair use

Arguments against Flexibility Revisited Civil law has moved to open norms AR systems moving away from natural law Legal certainty? ‘US v. them’: more flexibility does not necessarily imply fair use EU (and int’l) law actually tolerate (some) flexibilities

Does the EU Framework Allow Flexible Norms? InfoSoc Directive: closed list of L&E’s Rec 32: ”exhaustive enumeration of exceptions and limitations” But L&E’s in Directive loosely circumscribed Prototypes, not precise exceptions Rec 2: ”need to create a general and flexible legal framework […] to foster the development of the IS”

Examples from InfoSoc Directive Art. 5(3)(d) (quotation): “….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; ….”

National Implementations: From strict to liberal Article L122-5 Intellectual Property Code (France) Once a work has been disclosed, the author may not prohibit: […] 3°. on condition that the name of the author and the source are clearly stated: a) analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated […]; Article 22 Swedish Copyright Act Anyone may, in accordance with proper usage and to the extent necessary for the purpose, quote from works which have been made available to the public.

Examples from InfoSoc Directive Art. 5(3)(i): “…. incidental inclusion of a work or other subject-matter in other material; ….”

Examples from InfoSoc Directive Art. 5(3)(k): “…. use for the purpose of caricature, parody or pastiche….”

What about the Three-step Test? (5.5 ISD, 13 TRIPs, 10 WCT) Flexible norms can be (1) reasonably predictable, (2) not all-encompassing, and (3) not unduly harm authors/right holders Any WTO complaints about fair use?

Recent Calls for More Flexibility UK Copyright Review: more L&E’s Netherlands: make L&E’s more flexible Irish Copyright Review: fair use Australian Copyright Reform: fair use? Discussions in Poland, France, other states

What Kinds of Flexibilities? Create flexibilities inside circumscribed L&E’s Dutch Copyright Committee (2013): extend quotation right to cover user-generated content

What Kinds of Flexibilities? Create flexibilities inside circumscribed L&E’s Create flexibility alongside circumscribed L&E’s: open norm complementary to L&E’s, subject to 3-step test Korea (Act of 2011), Ireland (Review 2013)

European Copyright Code (Wittem Group) Art. 5.5 – Further limitations Any other use that is comparable to the uses enumerated in art. 5.1 to 5.4(1) is permitted provided that the corresponding requirements of the relevant limitation are met and the use does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author or rightholder, taking account of the legitimate interests of third parties.

“Who Cares?” Chilling effects on institutional users (e.g. libraries, educators), innovators, authors Increasing gap between social norms and the law of copyright, undermines social legitimacy of copyright Everyone who (still) believes in copyright should care