Lisbon Council RoundtableBrussels, 18 February 2014

European Copyright for the Digital Age

Prof. Dr. Martin SenftlebenVU University Amsterdam

Bird & Bird, The Hague

free speech/ privacy

protection

freedom of conducting a business

copyright protection

• Leaving the balancing to the industry?

• Who represents the public interest at the

negotiation table?

Licenses for Europe

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

broad exclusive

rights

exhaustive enumeration of

exceptions

three-step test

EU acquis (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.’

Art. 5(5) InfoSoc Directive

Worst case scenario

Anglo-America

• open limitations

• factor analysis

• case-by-case

approach (judge)

• flexibility

• quick reactions to

new developments

Continental Europe

• specific limitations

• fixed requirements

• closed catalogue of

limitations (legislator)

• legal certainty

• slow reactions to

new developments

Comparison: legal traditions

European Union

• closed catalogue

• controled by open

factors

• no flexibility

• no legal certainty

• very slow reactions

to new developments

= worst case scenario

• structural problem

• not only if three-step

test in national law (+)

(France)

• but also if three-step

test in national law (-)

(The Netherlands)

EU legal framework

Yes, absolutely.

Civil law judges capable of applying open-ended limitation?

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)

Rafael Hoteles

Airfield, ITV

BroadcastingSvensson

Subjective criterion?

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