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power and outdated business models.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