these questions. Will the Court allow search without permission? Or will the World Wide Web in Europe be searchable only on condition of a billion (or so) licenses?

To further complicate matters in Europe, the German government last year proposed special legislation that would require search engines and other online news aggregators to seek licenses from newspaper publishers for linking to news items. 2 Although the German parliament has recently watered down the bill to allow search engines to show news snippets, the bill has already set a dangerous precedent in other Member States, such as France, where newspaper publishers feel equally threatened by Google News and similar services. 1

 

user-Generated Content Another area where a need for flexibility in copyright is evident is user-generated content. Whereas the social media have in recent years become essential tools of social and cultural communication, copyright law in most EU Member States leaves little or no room for sharing user-generated content that builds upon preexisting works. For example, a spoof video composed of materials taken from broadcast television and uploaded to YouTube or Facebook would be exempted only in the rare case that it would qualify as a quotation providing critical commentary, or as a parody or pastiche. As the European Commission already recognized in its 2008 Green Paper on Copyright in the Knowledge Economy, the absence in European copyright laws of an exemption permitting user-generated content “can be perceived as a barrier to innovation in that it blocks new, potentially valuable works from being disseminated.” 4 The Commission’s suggestion to introduce a special user-generated content exception in EU copyright law has however as yet not materialized.

Good News

The good news is that the idea of introducing a measure of flexibility in the European system of copyright limitations and exceptions is now gradually taking shape. The Dutch government has in recent years repeatedly stated

another area
where a need for
flexibility in
copyright is evident
is user-generated
content.

its commitment to initiate a discussion at the European political level on a European-style fair use rule. In the U.K., the Hargreaves Report, a forward-looking government-com-missioned study on copyright reform published in May 2011, recommends the U.K. government argue in Brussels for “an additional exception, designed to enable EU copyright law to accommodate future technological change where it does not threaten copyright owners.” 5 The U.K. government’s official response to the Review6 highlights the need for more flexibility in EU copyright law. Most recently in Ireland the Copyright Review Committee advised the Irish government to consider the introduction of a general fair use rule, which would make Ireland part of a growing number of states—including Israel and Singapore—adopting the American model. 3

toward a Semi-open Norm?
Clearly, the time is ripe for a critical
review of the EU’s closed list of per-
mitted limitations and exceptions
to copyright. The Information Direc-
tive of 2001 that sought to deal with
the early copyright challenges of the
digital environment, is now well over
10 years old, but has never been prop-
erly reviewed by the European Com-
mission. Opening up the Directive’s
closed list to allow other fair uses that
promote innovation and cultural de-
velopment should feature high on the
European Commission’s legislative
agenda for the near future. A straight-
forward way to do this would be by
allowing Member States to provide
for other (that is, not specifically enu-
merated) limitations and exceptions
permitting unauthorized uses, on the
condition these uses comply with the
so-called three-step test. The three-
step test, which is part of the WTO’s
TRIPS Agreement and other interna-
tional treaties that are binding upon
the EU, is already incorporated in
the Directive as an overarching norm
preventing Member States from in-
troducing overbroad copyright limi-
tations. The test requires that excep-
tions: apply only in certain special
cases; not conflict with the normal
exploitation of copyright works; and
not otherwise unreasonably preju-
dice the interests of rights holders. By
combining the present system of cir-
cumscribed exceptions with an open
norm that would allow other fair uses,
a revised Directive would better serve
the combined goals of copyright har-
monization and promotion of culture
and innovation.

References

1. a clash across europe over the value of a click.

The New York Times (oct. 30, 2012); http://www. nytimes.com/2012/10/31/technology/european- newspapers-seeking-a-piece-of-google-ad-revenue. html?pagewanted=all&_r=0.

2. assault on google news: berlin cabinet approves new Web copyright law. Spiegel Online International (aug. 30, 2012); http://www.spiegel.de/international/ germany/german-lawmakers-propose-charging-fees- to-aggregators-like-google-a-852965.html.

3. copyright review committee. copyright and innovation. a consultation paper. Dublin, 2012.

4. european commission. green Paper on copyright in the knowledge economy. brussels. com(2008) 466/3 ( 16.07.2008), 19–20.

5. hargreaves, I. Digital Opportunity. A Review of Intellectual Property and Growth. (may 2011), 5.

6. u.k. government response to the Hargreaves Review of Intellectual Property and Growth (aug. 2011); http://www.ipo.gov.uk/ipresponse-full.pdf.

7. van der noll, r. et al. Flexible Copyright: The Law and Economics of Introducing an Open Norm in the Netherlands. study commissioned by the Dutch ministry of economic affairs, agriculture, and Innovation, seo-rapport nr. 2012-60, amsterdam, (aug. 2012); http://www.ivir.nl/publications/ vangompel/flexible_copyright.pdf.

8. Wittem group. European Copyright Code; http://www. copyrightcode.eu

 

P. Bernt hugenholtz ( [e-mail]) is director of the Institute for Information law at the university of amsterdam ( http://www.ivir.nl/staff/hugenholtz.html).

this viewpoint is based on a study by P. bernt hugenholtz and martin r.f. senftleben, “fair use in europe. In search of flexibilities”; http://ssrn.com/abstract=1959554.