University of Maastricht January 17, 2014 Phasing Out Copyright Prof. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague

Contents rationale available room to manoeuvre flexibility under the three-step test embargo periods opting out field of application

Rationale

public domain of cultural expression (cultural heritage) Copyright law: an inspiration system

economic concerns: obstacle to follow-on innovation (creation and distribution) solidarity argument: more freedom of speech work 1 work 2 70 years post mortem auctoris?

Room to manoeuvre

50 years post mortem auctoris? international minimum standard (Berne Convention) –even this term too long in many cases –need to differentiate between work categories (newspaper articles on the one hand, contemporary art music on the other hand) revision of international framework unlikely anyway: standardized term questionable

Instead: broader limitation of rights ‘ It shall be a matter for legislation in the countries of the Union to permit the reproduction of [literary and artistic] works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.’ (Art. 9(2) BC) =international three-step test

Article 9(2) BC Article 13 TRIPS Article 10 WCT Family picture

‘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 Art. 10 WCT

Flexibility under the test

certain special case –specific form of use, limited number of beneficiaries –room for considering policy justification? no conflict with a normal exploitation –currently exploited and potential future markets –room for normative considerations? no unreasonable prejudice to legitimate interests –refined proportionality test –reduction to reasonable level by providing for the payment of equitable remuneration Test criteria

Overcoming the normal exploitation obstacle embargo periods –add dynamic time element to the analysis –limitation becomes operational only after normal exploitation has been completed opt-out possibility –copyright owner can render the limitation inapplicable by reserving rights –hidden formality?

Embargo periods

Title of the presentation

Orphan Works Directive as a prototype use privileges for several cultural heritage institutions (Art. 1(1)) exemption of digitization, indexing and making available on the Internet (Art. 6) provided that diligent search has been carried out (Art. 3) fair compensation for copyright owners putting an end to orphan work status (Arts. 5 and 6(5))

makes work generally available on the Internet nonetheless permissible because normal exploitation has been completed No conflict with a normal exploitation?

Normal exploitation test dynamic as well? no conflict with a normal exploitation –currently exploited and potential future markets –room for normative considerations? re-exploitation in the framework of digitization projects automatically becoming part of a ‘normal exploitation’?

Opt-out possibility

Berne provision as a prototype ‘It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved.’ (Art. 10bis(1) BC) =opt-out model

impacts the core business of news providers nonetheless permissible because of opt-out feature No conflict with a normal exploitation?

Prohibited formality? ‘The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.’ (Art. 5(2) BC) enjoyment = coming into being exercise = enforcement of rights

external conditions covered affecting protection ‘as such’ internal conditions NOT covered extent, quality, contents of protection Scope of the Prohibition

Field of application

Phasing out copyright? not completely, long term remains as is but phase-out in ‘certain special cases’ may lead to much more flexible system of copyright limitations –opt-out during normal exploitation period –cutting back the right to prohibit use after completion of the normal exploitation –payment of equitable remuneration as an additional flexibility tool

The end. Thank you! For further reading, see paper available at contact: