Bernt Hugenholtz on Flexing Authors' Rights

American University Washington College of Law Program on Information Justice and Intellectual Property, The 2nd Annual Peter Jaszi Distinguished Lecture:

Professor Bernt Hugenholtz - Flexing Authors' Rights

Many countries lack fair use or fair dealing.  Adopters include Korea, Israel.  Authors’ rights countries without fair use can be very restrictive: can’t show copyrighted content in powerpoints at a public lecture—educational freedoms tend to be old-fashioned and highly restrictive.  Briefly showing in news reports images from an art exhibition—endless cases about this in France.  French right of quotation only covers fragments, which can’t be done with art.  Using short clips in documentaries is also a problem.  Documentary: not reporting the news; not quoting—falls in between exceptions.  Posting remixes on social media.  Parody of children’s character: successfully sued in Netherlands. Digitizing/indexing content for data mining/operating search engines: No exceptions in Europe come even close.  Google has seen increasing number of court cases, some of which it’s lost in parts of Europe, particularly Belgium and France. Shazam music recognition software: not allowed. Lack of flexibility in exceptions.

Fair dealing is much more limited than fair use.  Exhaustive/closed list, but with some flexibility around the edges depending on the country.  France has a very small list.  Others have more, but the list is still closed.  Quotation, news reporting, some private uses, some library uses.  Info Society Directive enumerated 21 types of limits/exceptions members may have in national law, mandating only one. Doesn’t allow anything beyond the list—anything not foreseen in 2001.  Search engines aren’t on the list.

Why no fair use? Civil law tradition.  Judge should only apply codified law.  Also, author’s rights offers different rationale than copyright system. Strongly favors authors over users. Exceptions are to be narrowly construed. There are also worries that flexibility would decrease certainty—open the floodgates.  Fear of US legal imperialism, too.  Do not underestimate this sensitivity.  There are also people who argue that international law does not allow fair use—conflict with Berne/TRIPS.

Do recognize increased need for flexibility in Europe.  Legislator can’t possibly respond adequately to fast pace of change; codifying everything precisely is outdated or ineffective. We must anticipate change that we cannot predict by providing for more abstract, flexible, and open norms.  European law requires two levels of change, national and directive—very slow response time.

Looking at traditional arguments against flexibility:  not a new problem for civil law, which elsewhere has abandoned the idea of pure codification.  The essential elements of civil law today involve a handful of general principles including fairness and reasonableness.  Balancing property rights with other rights, freedoms.

Certainty: fair use isn’t as wild and unpredictable as its critics here and in Europe claim. There is a coherence—Lee, Samuelson, Netanel have written about this. Conversely, civil law countries without flexibility, in desperation, resort to all sorts of doctrines outside of copyright trying to save the day—so much for predictability. German SCt 2010, Google Image Search/thumbnails: Perfect 10 without the naughty bits. Cook up a theory of implied consent, if you don’t use robots.txt.  Reasonable, but would have been much better if the result could be reached by applying copyright norms properly.  Rigidness therefore undermines certainty. 

Those who don’t like more flexibility often refer to the three-step test.  But that can be turned around: three-step test prevents opening the floodgates.

Not arguing for full US transplant; that rarely works.  Flexibility is different. Even Info Society directive, with its closed list, says flexibility is important—and many of the items on the closed list are actually rather open-ended. Quotation exception: for purposes “such as criticism,” which leaves lots of room to maneuver.  France interprets this restrictively, but Sweden interprets it broadly—comes close to a fair use rule for quotation to the extent necessary for the purpose, in accordance with proper uses.  Another exception: “incidental inclusion of a work or other subject-matter in other material.” Could use for documentarians.  “Caricature, parody or pastiche”—not even the French can define pastiche; could call user-generated content pastiche—again, room for maneuver.

What about the 3-step test? Flexible norms can be reasonably predictable, not all encompassing, and not unduly harm authors/rightholders.  No one has ever complained to the WTO about the US fair use rule—so why are we worrying? Promising developments, though mostly from civil law countries—Ireland recommended fair use; Australia is in a debate over fair use now.

What kind of flexibilities could work in an authors’ rights system?  More room to move inside existing limitations—Dutch copyright commission has proposed this.  UGC could be seen as quotation—just call it that!

More principled approach, flexibility alongside circumscribed limitations—an open norm complementing existing set of limitations.  Korea: a civil law country. 2011 revision introduced such a rule. Ireland is contemplating it.

European Copyright Code: proposed by academics: uses comparable to enumerated uses should be allowed subject to the 3-step test. This model would work very well in authors’ rights countries and common law jurisdictions too.

Who cares?  Chilling effects on institutional users, innovators, authors. Increasing gap between social norms and law undermines social legitimacy of copyright.

Q: what about moral rights? Are they a barrier?

A: No.  Relatively unimportant to exceptions/limitations. Already in European laws—could make norms subject to respect for moral rights. Political level, there is an argument: the absence of moral rights in the US is a constant source of irritation in trans-Atlantic relations.

Q: sometimes institutions in the US aren’t flexible either.

A: certainly need for norms of fairness between authors and intermediaries: the US could learn a lot from Europe there—Germany, France, Belgium, Spain have rules protecting authors against overbroad transfers.

Q: true no one has sued us under the WTO, but the US isn’t known for complying with the WTO anyway; would they bother?  Would other European countries accept Euro. loosening?

A: not sure that it’s even possible for one European country to use the WTO against another.  But a US rightsholder might theoretically sue.  Doesn’t see it happening, given the de facto precedent and the history of the 3-step test, purposefully constructed to embrace all existing exceptions/limitations, including fair use, since the thought had occurred that someday the US might join.