Lisbon Council Roundtable
Brussels, 18 February 2014
European Copyright
for the Digital Age
Prof. Dr. Martin Senftleben
VU University Amsterdam
Bird & Bird, The Hague
Licenses for Europe
• Leaving the balancing to the industry?
• Who represents the public interest at the
negotiation table?
free speech/
privacy
protection
copyright protection
freedom of
conducting
a business
Public Consultation
Yes…
• rights clearance
• exhaustion in the digital environment
• copyright register
• term of protection
• new and harmonized exceptions
– mass digitization, teaching, research, text and
data mining, user-generated content
– more flexibility
• single EU Copyright Title
But…
• should NOT block national initiatives
• Member States should avail themselves of
existing flexibility NOW
– Hugenholtz/Senftleben 2011
– right of adaptation
– exemption of research and quotations
• lengthy EU legislative process
• national experiences can inform policy
making at EU level
Need for flexibility
EU acquis (InfoSoc Directive)
broad
exclusive
rights
exhaustive
enumeration of
exceptions
three-step
test
Art. 5(5) InfoSoc Directive
‘The exceptions and limitations provided for in
paragraphs 1, 2, 3 and 4 shall only be applied
in certain special cases which do not conflict
with a normal exploitation of the work or other
subject-matter and do not unreasonably
prejudice the legitimate interests of the
rightholder.’
Worst case scenario
Comparison: legal traditions
Anglo-America
Continental Europe
• open limitations
• specific limitations
• factor analysis
• fixed requirements
• case-by-case
• closed catalogue of
approach (judge)
limitations (legislator)
• flexibility
• legal certainty
• quick reactions to
• slow reactions to
new developments
new developments
EU legal framework
European Union
= worst case scenario
• closed catalogue
• structural problem
• controled by open
• not only if three-step
factors
• no flexibility
• no legal certainty
• very slow reactions
to new developments
test in national law (+)
(France)
• but also if three-step
test in national law (-)
(The Netherlands)
Civil law judges capable of applying
open-ended limitation?
Yes, absolutely.
Svensson
CJEU, C-466/12, Svensson
• intervention
• other broadcasting organisation
• public
• new public
‘…must also be directed at a new public, that is to
say, at a public that was not taken into account by
the copyright holders when they authorised the
initial communication to the public.’ (para. 24)
Subjective criterion?
Rafael
Hoteles
Airfield,
ITV
Broadcasting
Svensson
CJEU, C-466/12, Svensson
• no new public in case of Internet public
‘…the users of the site [with hyperlinks] must be
deemed to be potential recipients of the initial
communication and, therefore, as being part of the
public taken into account by the copyright holders
when they authorised the initial communication.’
(para. 27)
• no artificial partitioning of the Internet
CJEU, C-466/12, Svensson
• universal rule covering embedded links
‘…the work appears in such a way as to give the
impression that it is appearing on the site on which
that link is found, whereas in fact that work comes
from another site.’ (para. 29)
• support of advanced linking technologies
• more freedom of expression
• also in the context of social media
Title of the presentation
The end. Thank you!
For further reading, please search for
‘senftleben’ on www.ssrn.com.
contact: m.r.f.senftleben@vu.nl