Vviewpoints

DOI: 10.1145/2447976.2447985

law and technology
Fair use in europe

LiKe the euro, the law of copyright in the European Union seems to be in a state of perennial crisis. Copy- right owners complain the law has left them defenseless against mass-scale infringement over digital networks, and call for enhanced copyright enforcement mechanisms. Users and consumers accuse the copyright industries of abusing copyright as an instrument to conserve monopoly power and outdated business models. Authors protest that the law does little to protect their claims to receive compensation—from the copyright industries and the users of their works alike.

A major cause of this crisis in copyright is the increasing gap between the rules of the law and the social norms that are shaped, at least in part, by the state of technology. Of course, technological development has always outpaced the process of lawmaking, but with the rapid and spectacular advances in information technology of recent years the law-norm gap in copyright has become so wide the system is now almost at a breaking point.

All this may look very familiar to
U.S. readers well versed in the ongo-
ing Great American Copyright De-
bate. However, in Europe the situ-
ation is much more complex, for at
least two reasons. One is the intrica-
cy of the EU lawmaking machinery,
which requires up to 10 years for a
harmonization directive to be adopt-
ed or revised. The other is the general
lack of flexibility in the laws of copy-
right in the EU and its Member States,
which—unlike the U.S.—do not per-
mit “fair use” and thus allow little
leeway for new technological uses not
foreseen by the legislature.

the eu legal
framework leaves
member States
little room to update
or expand existing
limitations and
exceptions.

the copyright law and emerging social norms. For example, the law in many Member States fails to take account of current educational and scholarly practices, such as the use of copyright-protected content in PowerPoint presentations, in digital classrooms, on Blackboard sites, or in scholarly correspondence. By the same token, many European laws severely restrict the use of (parts of) copyright works for purposes such as data mining or documentary filmmaking. By obstructing these and other uses that many believe should remain outside the reach of copyright protection— and would likely be called fair use in the U.S.—the law in Europe impedes not only innovation, science, and cultural progress, but also undermines the social legitimacy of copyright law. Arguably, this ever-widening copyright law-norm gap is an important factor in explaining why illegal sharing of copyright content is more widespread in Europe than it is in the U.S.

Like in most countries of the world, copyright laws in the EU traditionally provide for “closed lists” of limitations and exceptions that enumerate the various uses that are permitted without authorization. Examples of such uses