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 ( hugenholtz@uva.nl) 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.