University of Maastricht January 17, 2014 Phasing Out Copyright
Prof. Martin Senftleben VU University Amsterdam Bird & Bird,
The Hague Slide 2 Contents rationale available room to manoeuvre
flexibility under the three-step test embargo periods opting out
field of application Slide 3 Rationale Slide 4 public domain of
cultural expression (cultural heritage) Copyright law: an
inspiration system Slide 5 economic concerns: obstacle to follow-on
innovation (creation and distribution) solidarity argument: more
freedom of speech work 1 work 2 70 years post mortem auctoris?
Slide 6 Room to manoeuvre Slide 7 50 years post mortem auctoris?
international minimum standard (Berne Convention) even this term
too long in many cases need to differentiate between work
categories (newspaper articles on the one hand, contemporary art
music on the other hand) revision of international framework
unlikely anyway: standardized term questionable Slide 8 Instead:
broader limitation of rights It shall be a matter for legislation
in the countries of the Union to permit the reproduction of
[literary and artistic] works in certain special cases, provided
that such reproduction does not conflict with a normal exploitation
of the work and does not unreasonably prejudice the legitimate
interests of the author. (Art. 9(2) BC) =international three-step
test Slide 9 Article 9(2) BC Article 13 TRIPS Article 10 WCT Family
picture Slide 10 It is understood that the provisions of Article 10
permit Contracting Parties to carry forward and appropriately
extend into the digital environment limitations and exceptions in
their national laws which have been considered acceptable under the
Berne Convention. Similarly, these provisions should be understood
to permit Contracting Parties to devise new exceptions and
limitations that are appropriate in the digital network
environment. Agreed Statement Art. 10 WCT Slide 11 Flexibility
under the test Slide 12 certain special case specific form of use,
limited number of beneficiaries room for considering policy
justification? no conflict with a normal exploitation currently
exploited and potential future markets room for normative
considerations? no unreasonable prejudice to legitimate interests
refined proportionality test reduction to reasonable level by
providing for the payment of equitable remuneration Test criteria
Slide 13 Overcoming the normal exploitation obstacle embargo
periods add dynamic time element to the analysis limitation becomes
operational only after normal exploitation has been completed
opt-out possibility copyright owner can render the limitation
inapplicable by reserving rights hidden formality? Slide 14 Embargo
periods Slide 15 Title of the presentation Slide 16 Orphan Works
Directive as a prototype use privileges for several cultural
heritage institutions (Art. 1(1)) exemption of digitization,
indexing and making available on the Internet (Art. 6) provided
that diligent search has been carried out (Art. 3) fair
compensation for copyright owners putting an end to orphan work
status (Arts. 5 and 6(5)) Slide 17 makes work generally available
on the Internet nonetheless permissible because normal exploitation
has been completed No conflict with a normal exploitation? Slide 18
Normal exploitation test dynamic as well? no conflict with a normal
exploitation currently exploited and potential future markets room
for normative considerations? re-exploitation in the framework of
digitization projects automatically becoming part of a normal
exploitation? Slide 19 Opt-out possibility Slide 20 Berne provision
as a prototype It shall be a matter for legislation in the
countries of the Union to permit the reproduction by the press, the
broadcasting or the communication to the public by wire of articles
published in newspapers or periodicals on current economic,
political or religious topics, and of broadcast works of the same
character, in cases in which the reproduction, broadcasting or such
communication thereof is not expressly reserved. (Art. 10bis(1) BC)
=opt-out model Slide 21 impacts the core business of news providers
nonetheless permissible because of opt-out feature No conflict with
a normal exploitation? Slide 22 Prohibited formality? The enjoyment
and the exercise of these rights shall not be subject to any
formality; such enjoyment and such exercise shall be independent of
the existence of protection in the country of origin of the work.
(Art. 5(2) BC) enjoyment = coming into being exercise = enforcement
of rights Slide 23 external conditions covered affecting protection
as such internal conditions NOT covered extent, quality, contents
of protection Scope of the Prohibition Slide 24 Field of
application Slide 25 Phasing out copyright? not completely, long
term remains as is but phase-out in certain special cases may lead
to much more flexible system of copyright limitations opt-out
during normal exploitation period cutting back the right to
prohibit use after completion of the normal exploitation payment of
equitable remuneration as an additional flexibility tool Slide 26
Slide 27 Slide 28 Slide 29 The end. Thank you! For further reading,
see paper available at http://ssrn.com/abstract=2331688. contact:
[email protected]
