Can EU introduce an open norm into its system of copyright exceptions and limitations?

1. Dr Eleonora Rosati
EU-style fair use?
EU copyright and the introduction of an open norm
European Parliament, Brussels
3 March 2015
Towards a new legislation on intellectual property in the digital single market
Proposal for a new framework under INFOSOC and IPRED directives

2. Contents
• Article 5 of the InfoSoc Directive: structure and aim
• Article 5 in recent CJEU case law
• National implementations: the case of the UK
• Reforming Article 5: is it possible to introduce an open norm? Is it desirable?

3. Article 5 of the InfoSoc Directive:
structure and aim
• Optional exceptions/limitations, and three-step test (aimed at whom?)
• Recital 32
• List takes due account of the different legal traditions in Member States (including
‘grandfather clause’), while, at the same time, aiming to ensure a functioning internal
market
• Member States should arrive at a coherent application of these exceptions and
limitations

4. How precise is Article 5 “shopping list”?
• Just “categorically worded prototypes” (Hugenholtz-Senftleben)?
• In practice diverging national implementations
• Just think of private copying
• But also parody
• New s30A CDPA: fair dealing
• Article L 122-5(4) French IP Code: compliance with “lois du genre”
• All this despite:
• Recital 31 (“Existing differences in the exceptions and limitations … have direct negative
effects on the functioning of the internal market”)
• Recital 32 (“Member States should arrive at a coherent application of these exceptions
and limitations”)

5. Any change? Article 5 in recent CJEU case law
• From flexibility …
• AG Trstenjak in Padawan (“considerable flexibility”)
• Confirmed in Painer
• AG Sharpston in VG Wort (“certain freedom of action”)
• … To inflexibility
• CJEU in Padawan [36], TV2 Danmark [36], ACI Adam [33]-[34], and Deckmyn
• In past year alone CJEU has quashed number of national copyright laws
• (Svensson,) OSA, ACI Adam
• Misunderstanding, internal market or both?

6. National implementations: the case of the UK
• Took limited advantage of possibilities under Article 5
• Notable omissions: private copying and parody
• The Gowers and Hargreaves Reviews
• Post-Hargreaves implementation
• Is UK move compatible with UK law?
• Personal copies for private use without a levy system
• Parody within fair dealing

7. Reforming Article 5: is it possible to introduce an open
norm? Is it desirable?
• Reda’s draft Report
“open norm introducing flexibility in the interpretation of exceptions and limitations in certain
special cases that do not conflict with the normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the author or rightholder”
• Wittem Group’s European Copyright Code
Art. 5.5 – Further limitations: “Any other use that is comparable to the uses enumerated in
art. 5.1 to 5.4(1) is permitted provided that the corresponding requirements of the relevant
limitation are met and the use does not conflict with the normal exploitation of the work and
does not unreasonably prejudice the legitimate interests of the author or rightholder, taking
account of the legitimate interests of third parties.”
→ relying upon/taking advantage of the language of the three-step test in Article 5(5) InfoSoc Directive

8. Does Article 5
cover uses
protected as fair
use in the US?

9. EU-style fair use?
• Is US fair use compliant with three-step test, notably “special cases”?
• WTO Panel 2000 decision regarding Article 13 TRIPS: “an exception or limitation must be
limited in its field of application or exceptional in its scope. In other words, an exception
or limitation should be narrow in quantitative as well as a qualitative sense.”
• Is fair use unpredictable?
• Classic argument: flexibility at the expenses of certainty
• Beebe, ‘An empirical study of U.S. copyright fair use opinions, 1978-2005’ (2008) 156(3)
Univ Pa Law Rev 549, 574-575
• Legal obstacles possibly exaggerated

10. Is it desirable?
• Flexibility = no need for legislative updates
• But:
• Litigation culture and doctrine of precedent
• Role of CJEU
• Territoriality of copyright laws

11. In conclusion
• Has Article 5 actually harmonised
exceptions and limitations?
• Have Member States found it easy to rely
on Article 5?
• An open norm: might work … but would it
work well even without full copyright
harmonisation at EU level?

12. Thanks for your attention!
e.rosati@soton.ac.uk
@eLAWnora