1. Modernising Copyright Law Dublin, 21/10/2011 Flexibilities Inside and Outside the EU Acquis
Prof. Dr. Martin Senftleben
VU University Amsterdam
Bird & Bird, The Hague

2. Why flexibility? cultural reasons social reasons economic reasons
reuse and remix of cultural expressions
cultural innovation cycle
social reasons
new forms of discussing content
user-generated content, amateur productions
economic reasons
promising new business models
remarkable innovation power
OECD Participative Web Paper 2007

3. Inside

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

5. Art. 5(5) 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.’

6. 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 )

7. 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)

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

9. Unnecessarily restrictive

10. CJEU, FA Premier League
‘In accordance with its objective, [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)

11. Precisely-defined exceptions?
exception prototypes at EU level

12. Art. 5(3)(a) InfoSoc Directive
‘…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;…’

13. Art. 5(3)(c) 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;…’

14. Art. 5(3)(d) 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;…’

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

16. Three-step test as a straitjacket?
reference to flexible international acquis

17. Recital 44 InfoSoc Directive
‘When applying exceptions and limitations provided for in this Directive, they should be exercised in accordance with international obligations. Such exceptions and limitations may not be applied in a way which prejudices the legitimate interests of the rightholder or which conflicts with the normal exploitation of his work or other subject-matter.’

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

19. Agreed Statement Art. 10 WCT
‘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.’

20. definition of exceptions
Flexible approach
freedoms
definition of exceptions
three-step test

21. For example…
‘It does not constitute an infringement to use a work or other subject-matter for non-commercial scientific research or illustrations for teaching, for the reporting of current events, for criticism or review of material that has already been lawfully made available to the public, or quotations from such material serving comparable purposes, for caricature, parody or pastiche, or the incidental inclusion in other material, provided that…’

22. For example…
‘…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.’

23. Outside

24. Not all rights harmonized
HARMONIZED: right of reproduction
NOT HARMONIZED: right of adaptation
boundary line?
making literal copies = reproduction
transformations = adaptation

25. National free adaptation rules
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…’
in both cases, free adaptation rule survived implementation of InfoSoc Directive

26. Field of application

27. Considerable flexibility
inner distance can be sufficient (Germany)

28. Also in this case?

29. contact: m.r.f.senftleben@vu.nl
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