Lisbon Council RoundtableBrussels, 18 February 2014
European Copyright for the Digital Age
Prof. Dr. Martin SenftlebenVU University Amsterdam
Bird & Bird, The Hague
free speech/ privacy
protection
freedom of conducting a business
copyright protection
• Leaving the balancing to the industry?
• Who represents the public interest at the
negotiation table?
Licenses for Europe
Yes…
• rights clearance
• exhaustion in the digital environment
• copyright register
• term of protection
• new and harmonized exceptions
– mass digitization, teaching, research, text and
data mining, user-generated content
– more flexibility
• single EU Copyright Title
But…
• should NOT block national initiatives
• Member States should avail themselves of
existing flexibility NOW
– Hugenholtz/Senftleben 2011
– right of adaptation
– exemption of research and quotations
• lengthy EU legislative process
• national experiences can inform policy
making at EU level
broad exclusive
rights
exhaustive enumeration of
exceptions
three-step test
EU acquis (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.’
Art. 5(5) InfoSoc Directive
Anglo-America
• open limitations
• factor analysis
• case-by-case
approach (judge)
• flexibility
• quick reactions to
new developments
Continental Europe
• specific limitations
• fixed requirements
• closed catalogue of
limitations (legislator)
• legal certainty
• slow reactions to
new developments
Comparison: legal traditions
European Union
• closed catalogue
• controled by open
factors
• no flexibility
• no legal certainty
• very slow reactions
to new developments
= worst case scenario
• structural problem
• not only if three-step
test in national law (+)
(France)
• but also if three-step
test in national law (-)
(The Netherlands)
EU legal framework
CJEU, C-466/12, Svensson
• intervention
• other broadcasting organisation
• public
• new public
‘…must also be directed at a new public, that is to
say, at a public that was not taken into account by
the copyright holders when they authorised the
initial communication to the public.’ (para. 24)
CJEU, C-466/12, Svensson
• no new public in case of Internet public
‘…the users of the site [with hyperlinks] must be
deemed to be potential recipients of the initial
communication and, therefore, as being part of the
public taken into account by the copyright holders
when they authorised the initial communication.’
(para. 27)
• no artificial partitioning of the Internet
CJEU, C-466/12, Svensson
• universal rule covering embedded links
‘…the work appears in such a way as to give the
impression that it is appearing on the site on which
that link is found, whereas in fact that work comes
from another site.’ (para. 29)
• support of advanced linking technologies
• more freedom of expression
• also in the context of social media
The end. Thank you!For further reading, please search for
‘senftleben’ on www.ssrn.com.
contact: [email protected]