University of Maastricht
January 17, 2014
Phasing Out Copyright
Prof. Martin Senftleben
VU University Amsterdam
Bird & Bird, The Hague
• rationale
• available room to manoeuvre
• flexibility under the three-step test
• embargo periods
• opting out
• field of application
Copyright law: an inspiration system
public domain of cultural expression
(cultural heritage)
70 years post mortem auctoris?
• economic concerns: obstacle to follow-on
innovation (creation and distribution)
• solidarity argument: more freedom of speech
work 1
work 2
Room to manoeuvre
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
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
Family picture
Article 9(2) BC
Article 13 TRIPS
Article 10 WCT
Agreed Statement Art. 10 WCT
‘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.’
Flexibility under the test
Test criteria
• 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
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?
Embargo periods
Title of the presentation
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))
No conflict with a normal exploitation?
makes work
generally available
on the Internet
permissible because
normal exploitation
has been completed
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
Opt-out possibility
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
No conflict with a normal exploitation?
impacts the core
business of news
permissible because
of opt-out feature
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
Scope of the Prohibition
external conditions
internal conditions
NOT covered
affecting protection
‘as such’
extent, quality,
contents of protection
Field of application
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
The end. Thank you!
For further reading, see paper available at
contact: [email protected]

Maastricht 2014 - Phasing-Out Copyright - VU