Oxford IP Research Center
St Peter’s College, 20/11/2014
Copyright and
Creators’ Interests
Prof. Martin Senftleben
VU University Amsterdam
Bird & Bird, The Hague
Why creators’ interests?
civil law
droit d’auteur
tradition
common law
copyright
tradition
Authors just a figurehead?
Social legitimacy of copyright
• interests of creators not only as a rhetorical
argument for justifying the continuous
broadening of exclusive rights
• copyright needs to be based on creators’
interests to remain credible and
understandable
• authors’ interests ≠ industry interests
• authors’ rights ≠ industry rights
Introduction
Pierre Bourdieu
Theoretical Framework
• Niklas Luhmann
• theory of relatively closed social systems
• each system has its own, distinct identity
• boundary between a system and its environment
• Pierre Bourdieu
• autonomous social spaces (‘fields’) with individual
rules, dominance structures and set of opinions
• but not isolated from surrounding fields and
processes
Art, money, power
Constant internal fight
• competing players
– autonomous, independent artists
– bourgeois, dependent artists
• predominance and leadership
– dictating internal discourse
– consecration power
– quality standards
• constantly changing structure
Autonomy
nomos:
l’art pour l’art
Autonomy
• depends on the degree of discourse and
consecration power of independent,
autonomous artists
• predominance of dependent, profit-oriented
mainstream artists endangers autonomy of
the literary and artistic field
• current crisis because of continuously
growing power of commercial players
Copyright
Rationales of protection
• incentive (utilitarian approach)
• reward (natural law approach)
• thus: focus on financial benefits
– aligned with interests of dependent, bourgeois
mainstream artists?
– neglecting the interests of independent,
autonomous artists?
– enticing autonomous artists away from the l’art
pour l’art logic of the field?
Other features of the system
• newcomers within the group of autonomous artists
• for a new avant-garde movement, the predominant
rules must be criticized
avant-garde
arrière-garde
Andy Warhol
Central support features
idea/
expression
dichotomy
quotation,
parody
use for educational
purposes
Copyright ‘neutrality’
exploitation rights
ensuring constant
supply of commercial
productions
limitations supporting
constant evolution of
new avant-garde
movements
Impact on the concept
of authors’ rights
Copyright ‘neutrality’
not only right to
commercially exploit
own works
but also right to
transformative use of
the works of others
(bourgeois authors)
(autonomous authors)
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.’
CJEU, Infopaq
‘…that, according to settled case-law, the provisions
of a directive which derogate from a general principle
established by that directive must be interpreted
strictly […]. This holds true for the exemption
provided for in Article 5(1) of Directive 2001/29, which
is a derogation from the general principle established
by that directive, namely the requirement of
authorisation from the rightholder for any
reproduction of a protected work.’ (para. 56-57)
CJEU, Infopaq
‘This is all the more so given that the exemption must
be interpreted in the light of Article 5(5) of Directive
2001/29, under which that exemption is to be applied
only 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.’ (para. 58)
CJEU, FA Premier League
‘In accordance with its objective, [the exemption of
temporary copying under Article 5(1) of Directive
2001/29] must allow and ensure the development
and operation of new technologies and safeguard
a fair balance between the rights and interests of
right holders, on the one hand, and of users of
protected works who wish to avail themselves of
those new technologies, on the other.’ (para. 164)
CJEU, Eva-Maria Painer
CJEU, Eva-Maria Painer
‘Article 5(3)(d) of Directive 2001/29 [= right of
quotation] is intended to strike a fair balance
between the right to freedom of expression of
users of a work or other protected subject-matter
and the reproduction right conferred on authors.’
(para. 134)
CJEU, Deckmyn
CJEU, Deckmyn
‘In addition, as stated in recital 31 in the preamble
to Directive 2001/29, the exceptions to the rights
set out in Articles 2 and 3 of that directive, which
are provided for under Article 5 thereof, seek to
achieve a ‘fair balance’ between, in particular, the
rights and interests of authors on the one hand,
and the rights of users of protected subject-matter
on the other.’ (para. 26)
CJEU, Deckmyn
‘It follows that the application, in a particular case,
of the exception for parody […] must strike a fair
balance between, on the one hand, the interests
and rights of persons referred to in Articles 2 and
3 of that directive, and, on the other, the freedom
of expression of the user of a protected work who
is relying on the exception for parody, within the
meaning of Article 5(3)(k).’ (para. 27)
Right of transformative use
already recognized and applied?
not necessarily,
at least not in
all cases…
M. Morrison, Bridgeport Redux, S. 96
„…what I will refer to throughout the rest
of my paper as the collage paradigm in
sampling refers, essentially, to what
derivative works sampling is not, i.e., the
layered use of quantitatively and/or
qualitatively insignificant samples to
create new musical works that bear little
or no resemblance to the original work.“
Obstacle to cultural follow-on innovation
derivative works
sampling
collage
sampling
Impact on
remuneration
mechanisms
Autonomous authors eligible at all?
winning in
economic terms
=
losing in artistic
terms
Fair remuneration legislation
• German Copyright Contract Act 2002
• grant of a right to fair remuneration
– contract modification in case of insufficient
remuneration
– difficulty of providing evidence of customary
remuneration in a given sector
• author association/industry negotiations
• common remuneration rules as evidence of
a fair remuneration standard
Limited success in practice
• ‘Common Remuneration Rules for Writers
of German Fiction’
– difficult negotiations supported by Ministry
– limited participation of individual publishers
• Supreme Court decisions
– analogy 1: guideline in case of translators
– analogy 2: guideline in case of non-fiction
= impact on the entire sector, obstacle to the
establishment of further Common Rules
Nonetheless export success
• draft legislation in the Netherlands based
on the same mechanism
• proliferation of symbolic copyright contract
legislation in the EU?
– future harmonization likely?
– German/Dutch model as a basis?
• open question: antitrust concerns
– encouragement of cartel formation?
– EU competition authorities sleeping?
Broader perspective
ex ante
remuneration claim
(bourgeois authors)
ex post
remuneration claim
(autonomous authors)
The end. Thank you!
For publications, search for
‘senftleben’ on www.ssrn.com.
contact: m.r.f.senftleben@vu.nl