Relax the Rules? – In Search of Flexible Copyright Regime in the EU

(IPRinfo 2/2012)

Essi Pokela
Associate, Roschier, Attorneys Ltd.

Under the current EU copyright regime copyright owners are being favored at the expense of users.

Copyright law has continuously been challenged by new technologies, such as broadcast radio and television, photocopier and video recorder.

More recently, as a result of the digital revolution and Internet, copyright works have become easy to find, store, copy, modify and communicate in whatever form, unconstrained by distance, time or volume. Subsequently, the fast development of social networks and social media sites has facilitated collaboration between users in the context of the Web 2.0.

Technological developments have thus multiplied and diversified the possibilities for creation and exploitation of copyright works as well as dissemination of information.

Copyright law has shown a remarkable ability to adapt to new technologies while balancing the interests of different stakeholders. Nowadays however, it seems that copyright owners are favored at the expense of users under the EU copyright regime.

Two decades of copyright harmonization
As a response to technological developments, the Commission has gradually strengthened copyright protection over the past two decades. E.g. the explicit purpose of the main piece of European copyright legislation, namely Directive 2001/29/EC (the “InfoSoc Directive”), was to provide copyright owners with a high level of protection.

The scope of exclusive rights thus includes all temporary and permanent reproduction on any medium as well as all communications to the public including on-demand services.

As such, one can hardly exploit copyright works without a protected act being implied in the digital environment. Further, the protection of technical measures and the possibility to ignore copyright exceptions through contractual terms further strengthen copyright owners’ position.

It is widely accepted that strengthening copyright protection has not been accompanied with a sufficient reflection on copyright exceptions despite them being inherent to the exclusive rights in defining their scope.

The InfoSoc Directive contains a closed list of exceptions, including exceptions for private copying, news reporting and archiving. Member States have been permitted to implement the exceptions to a greater or lesser degree. E.g. Finland does not exploit all the exceptions available, including the exception for parody.

Flexibility through exceptions
Under the EU approach to copyright exceptions, it is not possible to enact new exceptions in new areas. Further, there is no mechanism under which new uses of copyright works could be assessed and permitted uses developed. As such, the EU approach may be regarded as lacking flexibility when it comes to technological advances and new uses of copyright works.

The lack of flexibility and obligation to acquire copyright owners’ prior consent can be perceived as a barrier to creativity as it may block new works that are built on existing works from being disseminated. There is also a growing disparity between what is allowed under copyright exceptions and the reasonable expectations and behavior of users.

Further, searching for and consuming information often involve routine copying of text, images and other data. Copyright law may block the spread of valuable new technologies simply because such technologies were not imagined when the law was formed.

The greatly expanded scope of what is possible should not be unnecessarily limited by copyright. E.g. copyright should not prevent existing works from being re-used in a creative manner or be in the way of searching for and consuming information. A flexible system of copyright exceptions could allow for such processes.

On the other hand, copyright owners should maintain sufficient control over their works and protect themselves against infringements of their creativity in the digital environment. E.g. there is a significant difference between user-created content showing a level of creativity and user-distributed content, i.e. existing content that is protected by copyright and simply uploaded and disseminated by users. The latter should naturally be subject to consent.

The question is then how to obtain enough flexibility while preserving copyright owners’ interests.

Is fair use the answer?
As opposed to the closed list of copyright exceptions in the EU, the US doctrine of fair use enables the assessment of emerging uses of copyright works in a flexible manner. Under the doctrine, if a court deems a use of a work fair in accordance with the US Copyright Law, there is no infringement.

Google, Facebook and other web stars have suggested that fair use is one of the factors creating a positive environment in the US for innovation and investment in innovation. Fair use allows for trial and error as well as bolder risk taking, with the ad hoc adjudication by courts as to whether innovators have trespassed too far upon copyright owners’ rights.

Examples of successful application of fair use in the field of consumer technology include video recording, internet search caching and thumbnail images.

The introduction of a fair use exception outside the US has been discussed especially within the Commonwealth as well as the Netherlands. Such attempts have, however, failed due to the familiar juxtaposition of flexibility and certainty.

Whereas fair use may offer flexible approach to assess new uses of copyright works, it seems to do so at the expense of legal certainty. As courts have considerable discretion as to the scope of copyright, it is difficult for both copyright owners and users to assess their legal positions without turning to courts. This may result in an increase in high cost litigation.

Further, considering its roots in US case law, fair use may not be feasible in other legal systems, especially in the civil law systems influenced by the French droit d’auteur. It is also questionable whether fair use is in compliance with the three-step test introduced in the Berne Convention.

It thus seems that there may be more suitable solutions than the US concept of fair use for providing flexibility in the EU copyright regime.

Semi-open approach
Legal doctrines outside copyright, such as freedom of expression, may provide first aid to the lack of flexibility in the EU copyright regime. Some flexibility is, however, available inside the regime already.

The three-step test set out in the InfoSoc Directive could provide a framework for interpreting copyright exceptions in a broader manner as opposed to strict interpretation indicated in the Infopaq decision of the Court of Justice of the European Union (the CJEU).

Broader, or even analogous, interpretation may take into account e.g. the purpose underlying an exception as well as the effect of the use to copyright owners’ interests. The interests would be protected, as interpretation would be subject to the three-step test.

It is uncertain, however, whether the test is addressed to the national legislator as an instruction for implementation or to the national courts as an obligation to ensure on a case-by-case basis that the national exceptions comply with the test.

The practices of the Member States vary accordingly. E.g. Finland deemed the three-step test to be directed at the national legislator alone and, consequently, did not make any reference to the test in the Copyright Act. As such, if it is desired that the three-step test is applied by courts directly, this should be clarified by the EU legislator.

In conclusion, if and when the Commission reforms the InfoSoc Directive including the exceptions, the reform should aim at maintaining a list of well-defined exceptions that guarantee a level of legal certainty. It is further necessary to introduce some measure of flexibility that allows uses of copyright works which do not directly exploit the creative value of the works. Some flexibility could be achieved through the three-step test.

Legal uncertainty that evidently follows any flexibility in such a semi-open approach would diminish in time, as the CJEU would eventually be asked preliminary rulings thereby continuing the harmonization of EU copyright law for its part.

The article is based on a research essay submitted in partial fulfilment of a post-graduate LL.M. degree at King’s College London.


Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001, p. 10-19 (the “InfoSoc Directive”).
Green Paper – Copyright in the Knowledge Economy, 16 July 2008, COM(2008) 466/3.
Communication from the Commission – Copyright in the Knowledge Economy, 19 October 2009, COM(2009) 532 final.
Case C-5/08, Infopaq International A/S v Danske Dagblades Forening.

Publications by Institute for Information Law, University of Amsterdam:

Guibault, L., Westkamp, G., Rieber-Mohn T., et al. (2007) Study on the Implementation and Effect in Member States’ laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, report to the European Commission, DG Internal Market.
Hugenholtz, Bernt and Senftleben, Martin R.F (2011) Fair use in Europe. In search of flexibilities.