Lisbon Council Roundtable Brussels, 18 February 2014 European Copyright for the Digital Age Prof. Dr. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague

free speech/ privacy protection freedom of conducting a business copyright protection Leaving the balancing to the industry? Who represents the public interest at the negotiation table? Licenses for Europe

Public Consultation

Yes… rights clearance exhaustion in the digital environment copyright register term of protection new and harmonized exceptions –mass digitization, teaching, research, text and data mining, user-generated content –more flexibility single EU Copyright Title

But… should NOT block national initiatives Member States should avail themselves of existing flexibility NOW –Hugenholtz/Senftleben 2011 –right of adaptation –exemption of research and quotations lengthy EU legislative process national experiences can inform policy making at EU level

Need for flexibility

broad exclusive rights exhaustive enumeration of exceptions three-step test EU acquis (InfoSoc 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.’ Art. 5(5) InfoSoc Directive

Worst case scenario

Anglo-America open limitations factor analysis case-by-case approach (judge) flexibility quick reactions to new developments Continental Europe specific limitations fixed requirements closed catalogue of limitations (legislator) legal certainty slow reactions to new developments Comparison: legal traditions

European Union 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) EU legal framework

Yes, absolutely. Civil law judges capable of applying open-ended limitation?

Svensson

CJEU, C-466/12, Svensson intervention other broadcasting organisation public new public ‘…must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public.’ (para. 24)

Rafael Hoteles Airfield, ITV Broadcasting Svensson Subjective criterion?

CJEU, C-466/12, Svensson no new public in case of Internet public ‘…the users of the site [with hyperlinks] must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.’ (para. 27) no artificial partitioning of the Internet

CJEU, C-466/12, Svensson universal rule covering embedded links ‘…the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.’ (para. 29) support of advanced linking technologies more freedom of expression also in the context of social media

Title of the presentation

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