1. Det årlige opphavsrettskurset Sandefjord, 19. mars 2015 Justifications of copyright revisited Prof. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague

2. Social legitimacy of copyright interests of creators not only as a rhetorical argument for justifying the continuous broadening of exclusive rights copyright needs to be based on creators’ interests to remain credible and understandable authors’ interests ≠ industry interests authors’ rights ≠ industry rights

3. Authors just a figurehead?

5. Introduction

6. Pierre Bourdieu

7. Niklas Luhmann theory of relatively closed social systems each system has its own, distinct identity boundary between a system and its environment Pierre Bourdieu autonomous social spaces (‘fields’) with individual rules, dominance structures and set of opinions but not isolated from surrounding fields and processes Theoretical Framework

8. Art, money, power

9. Constant internal fight competing players –autonomous, independent artists –bourgeois, dependent artists predominance and leadership –dictating internal discourse –consecration power –quality standards constantly changing structure

10. nomos: l’art pour l’art Autonomy

11. Importance for society aesthetic theories: F. Schiller, T.W. Adorno alternative visions of society –not mere confirmation and support of the status quo, comfort in the rationalized world –but mirror of the deficiencies of social, economic, political conditions, opposition against the existing reality result: utopian views of a better life that may become drivers of social change

12. Autonomy depends on the degree of discourse and consecration power of independent, autonomous artists predominance of dependent, profit-oriented mainstream artists endangers autonomy of the literary and artistic field current crisis because of continuously growing power of commercial players

13. Copyright

14. Rationales of protection incentive (utilitarian approach) reward (natural law approach) thus: focus on financial benefits –aligned with interests of dependent, bourgeois mainstream artists? –neglecting the interests of independent, autonomous artists? –enticing autonomous artists away from the l’art pour l’art logic of the field?

15. newcomers within the group of autonomous artists for a new avant-garde movement, the predominant rules must be criticized avant-garde arrière-garde Other features of the system

16. Andy Warhol

17. idea/ expression dichotomy quotation, parody use for educational purposes Central support features

18. exploitation rights ensuring constant supply of commercial productions limitations supporting constant evolution of new avant-garde movements Copyright ‘neutrality’

19. Impact on the concept of authors’ rights

20. not only right to commercially exploit own works (bourgeois authors) but also right to transformative use of the works of others (autonomous authors) Copyright ‘neutrality’

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

22. ‘ 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

23. CJEU, Deckmyn

24. ‘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

25. Impact on remuneration mechanisms

26. winning in economic terms = losing in artistic terms Autonomous authors eligible at all?

27. Fair remuneration legislation German Copyright Contract Act 2002 grant of a right to fair remuneration –contract modification in case of insufficient remuneration –difficulty of providing evidence of customary remuneration in a given sector author association/industry negotiations common remuneration rules as evidence of a fair remuneration standard

28. ex post remuneration claim (autonomous authors) ex ante remuneration claim (bourgeois authors) Different focus

29. Impact on repartitioning schemes of collecting societies

30. repartitioning based on market share (in favour of bourgeois authors) cross-financing of ‘true’ works of art (in favour of autonomous authors) Subsidies for autonomous authors?

31. The end. Thank you! For publications, search for ‘senftleben’ on www.ssrn.com. contact: m.r.f.senftleben@vu.nl