Exceptions and limitations in the EU

Question 1

What does the Berne Convention say about reproduction of works and certain free uses of work?

Answer 1

Art 9 (2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such 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 10 It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for special
agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

Question 2

What is the Three step test?

Answer 2

The three-step test, by origin an international provision, restricts copyright exceptions and limitations. The three-step test was incorporated into multiple treaties and trade agreements after being first included in the Berne Convention. Despite some nuances regarding the test’s wording in these legal instruments, the essential part – i.e. the three criteria – has remained unchanged. The European Union (EU) legislator took a step forward by expressly implementing the international three-step test into EU law. Article 5(5) of the 2001 InfoSoc Directive provides for its own EU three-step test, and more recently, the test was included in the 2019 DSM Directive.

Question 3

Open ended vc. clodsed systems of exceptions

Answer 3

The US ‘fair use’ defence – 17 U.S.C. § 107
* Judicially-created defence (→ Folsom v Marsh), codified in the Copyright Act 1976
* Exemplary list of permissible uses (“such as…”) coupled with a four-factor analysis to be applied
on a case-by-case basis
* The doctrine has been applied to a number of non-codified creative uses (e.g. parody, mash-up,
sampling) and technological uses (thumbnails, linking, digitization, coding)

The European system of exceptions and limitations – InfoSoc Directive, Art. 5
* Only uses statutorily exempted are permitted – e.g. quotation, private use, education, …
* Limited scope for judicial analogical application
* Some exceptions are remunerated

Question 4

Information Society Directive (2001/29/EC)
Article 5 – Exceptions and limitations

Answer 4

1. Temporary reproduction (mandatory)
2. Five optional exceptions or limitations to the reproduction right: (incl. uses subject to
   “fair compensation”: e.g. photocopy and private copying)
3. Fifteen optional exceptions or limitations to the reproduction and public
   communication rights (incl. teaching, quotation, parody, incidental inclusion)
4. Three-step test

Question 5

The legal nature of exceptions: “derogations” or “users’ rights”?

Answer 5

Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly
understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of
copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.

Question 6

Parody

Answer 6

InfoSoc Directive, art. 5(2)(k)
may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:
(k) use for the purpose of caricature, parody or pastiche;

• evoking an existing work while being noticeably different from it
• constituting an expression of humour or mockery
• Uniform interpretation across the EU

Question 7

Quotation

Answer 7

InfoSoc Directive, art. 5(2)(c)
may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the
following cases:
(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;

Pelham v Hütter, Case C-476/17 (2019) an the “freedom of the arts”: Moses Pelham copied 2’’ of a rhythm sequence from the Kraftwerk’s song ‘Metall auf Metall’ and used that sample in a continuous loop in the song ‘Nur mir’.
“where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to use it, in a modified form unrecognisable to the ear, in a new work, it must be held that such use does not constitute ‘reproduction’”