Fair use in Europe: Bernt Hugenholtz and Martin Senftleben in search of flexibilities

In November Bernt Hugenholtz (IViR) and Martin Senftleben (VU Amsterdam) published a study that explores existing flexibilities within the European copyright regime that could be used to introduce the concept of fair use in Europe. This study follows on the heels of the Hargreaves Review, which examined the possibility of introducing a fair use exception in the UK.

In his report Hargreaves concluded that while it is highly desirable to introduce more open-ended flexibilities into UK copyright law, ‘significant difficulties would arise in any attempt to transpose US style Fair Use into European law.’ (Hargreaves, p.47). Instead of recommending the introduction of a Fair Use exception, Hargreaves looks at the benefits that a Fair Use exception provides and concludes that it is time to explore…

‘… with our EU partners a new mechanism in copyright law to create a built-in adaptability to future technologies which, by definition, cannot be foreseen in precise detail by today’s policy makers. This latter change will need to be made at EU level, as it does not fall within the current exceptions permitted under EU law. […] We therefore recommend below that the Government should press at EU level for the introduction of an exception allowing uses of a work enabled by technology which do not directly trade on the underlying creative and expressive purpose of the work (this has been referred to as “non-consumptive” use). (Hargreaves, p.47)

While Hugenholtz and Senftleben seem to embrace these conclusions, their study does not deal with introducing additional flexibilities into the European copyright system. Instead they have set out to explore existing room for more flexibility within the system. This system consists of the EU’s 2001 Information Society Directive (a.k.a ‘Copyright Directive), it’s 27 implementations into the national laws of the EU member states, and the WIPO internet treaties.

In their paper Hugenholtz and Senftleben argue that the current European copyright system provides ample room to create more flexible exceptions. According to them, member states seeking to provide more opportunities to users of copyright protected works are well advised to exploit these inherent flexibilities. Where the introduction of new exceptions at the EU level, as advocated by Hargreaves, would only come into effect after a multi-year legislative undertaking with an all but guaranteed outcome, working with existing flexibilities provides those member states who wish to introduce changes a much quicker route to achieve this objective.

So where are these existing but currently unused flexibilities? According to Hugenholtz and Senftleben they can be found in the way member states implement the Information Society Directive in their national laws. After showing the leeway awarded by the directive though a discussion of specific national implementations and relevant case law, they point out that:

The most flexible implementation of permissible EU exceptions, however, can be achieved by including literal copies of the prototypes in the Information Society Directive in national law. […] The norm inevitably remains semi-open because it can hardly empower judges to identify new use privileges on the mere basis of abstract criteria, such as those constituting the three-step test. Article 5 ISD contains an exhaustive enumeration of permissible exceptions. Without changes to the EU acquis, this closed catalogue cannot be reopened at the national level. Recalling several EU exception prototypes with flexible features that have been highlighted above, the envisioned semi- open provision, nonetheless, could take the following shape:

‘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 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.’

Further requirements to be found in the relevant provisions of Article 5 ISD, such as use ‘in accordance with fair practice’, use ‘to the extent required by the specific purpose’, or use ‘to the extent justified by the informatory purpose’ can be understood to be covered anyway by the elements taken from the three-step test. Otherwise, these additional requirements – being flexible themselves – could be added without changing the semi-open nature of the proposed provision. (Hugenholtz and Senftleben, p.17-18)

Combining the literal text of the Information Society Directive with the three-step test, which is usually perceived as a limitation of the scope of possible exceptions may, at first, sound like a rather strange recipe to increase flexibility. However Hugenholtz and Senftleben argue that this does not do justice to the nature of the three-step test:

In the context of the Information Society Directive, the reappearance of the three-step test in Article 10 WCT is even more important than the outlined initial understanding of the provision. […] The Agreed Statement Concerning Article 10 WCT, however, could hardly be more explicit with regard to the flexibility inherent in the international three-step test:

‘It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extent 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. It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.’

This balanced Agreed Statement, allowing the extension of traditional and the development of new exceptions and limitations with regard to the digital environment, is the result of the deliberations at the 1996 WIPO Diplomatic Conference that led to the adoption of the WIPO Internet Treaties. […] The Agreed Statement Concerning Article 10 WCT is thus the outcome of an international debate in which the need to maintain an appropriate balance in copyright law has clearly been articulated. (Hugenholtz and Senftleben, p.22)

Armed with this view on the three-step test Hugenholtz and Senftleben arrive at their conclusion that there is room within the current European copyright system to provide a level of flexibility that is comparable with that provided by the US fair use doctrine:

A Member State desiring to take full advantage of all policy space available under the Information Society Directive, and thus maximize flexibilities available at the EU level, might achieve this by literal transposition of the Directive’s entire catalogue of exception prototypes into national law. In combination with the three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. […] In addition, the unharmonized status of the adaptation right would leave Member States free to provide for limitations and exceptions permitting, for instance, fair (i.e. non-commercial) transformative uses in the context of user-generated content. (Hugenholtz and Senftleben, p.29-30)

While they are probably right to point out that ‘initiatives to introduce flexibilities at the EU level […] could easily take ten years’, their conclusion that member states should focus their energies on national legislative changes that make use of the policy space identified in their paper is not convincing.

While the policy space described above does exist on paper, it clearly remains an extremely contested space when it comes to policy making. The arguments brought forward may be persuasive to policy makers and other actors who are seeking to introduce more flexibilities into the current copyright system, but will most certainly be ignored or disputed by those with contrary policy objectives.

To make matters worse, the approach suggested by Hugenholtz and Senftleben hinges on favorable implementation of the legislative framework by the courts. This not only introduces uncertainties, it is also highly questionable whether courts will indeed adopt the non-restrictive interpretations of both the Directive and the three-step test as they are presented by Hugenholtz and Senftleben in their study. As a result, the approach of establishing clearly identified positive norms on the EU level, as favored by Hargreaves, seems much better suited to re-balance copyright in the EU.

The main value of this study is how it shows that the need for more flexible limitations and exceptions for a digital environment was acknowledged at the very beginning of the process of adapting copyright to the reality of emerging digital networks. Unfortunately that initial recognition has lost a lot of ground under the relentless attack of copyright maximalists over the past 15 years.

Etching of a printer's press by Abraham Bosse.
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