Working paper Open Access
In the European Union, also by virtue of its status of fundamental right, copyright is given a protection which tends to be hypertrophic, without this being justified by the necessity to provide incentives to creation. Indeed, on the one hand copyright owners’ exclusive rights are interpreted extensively, on the other a restrictive approach is applied with regard to copyright limitations and exceptions, which are in charge of enabling unauthorised uses of protected works.
In particular, copyright limitations and exceptions tend to be considered as derogations to the principle according to which copyright must be given a high level of protection. The assumption that limitations and exceptions have a derogatory nature implies that they cannot be interpreted in an extensive or analogical manner. This approach is problematic as it fails to acknowledge that copyright limitations and exceptions protect users’ fundamental freedoms, inter alia the human right to science, freedom of expression and the right to participate in cultural life. Once confronted with these rights, copyright cannot be said anymore to deserve an aprioristically high protection.
In the light of the foregoing, the need emerges to foster a more integrated system, where copyright owners’ exclusive rights can interact more physiologically with users’ fundamental freedoms. This is a crucial issue in the light of the digital revolution, which makes it possible for knowledge to circulate in a fast and cheap way. To tell the truth, the exigence to elaborate concrete solutions has become even more urgent due to the Covid-19 pandemic, which has made it clear that it is vitally important to promote content sharing, above all to foster scientific research.
This study aims at analysing the present copyright system in the European Union in order to scrutinise its most problematic aspects and to formulate proposals with a view to fostering a better balance between the various interests at stake. This analysis will adopt a comparative approach. More specifically, it will take into account the US and the Canadian legal systems with a view to borrowing some solutions which may be applicable to the copyright system as conceived in the European Union. Indeed, the US and the Canadian legal systems stand out as they endorse a model of exceptions which is more flexible than the paradigm the European Union adopts.
The findings of the present comparative analysis will be tested in the so-called GLAM sector. In particular, GLAM is an acronym which stands for “galleries, libraries, archives and museums”. The choice to focus on the activities of cultural institutions is justified by the fact that, as the depositaries of scientific knowledge and cultural heritage, they are constantly expected to make cultural rights effective while dealing with copyright owners’ exclusive rights on the works included in their collections. It is not the case that the European legislator has long been concerned to enlarge the number of unauthorised uses permitted to cultural heritage institutions, most recently with the Directive 2019/790.
This study is articulated in three chapters. The first one aims at giving an overview of the most problematic aspects this work tries to deal with. With this objective in mind, first
of all it will be necessary to give an account of the nature and the functions of copyright thanks to a brief excursus about the theories which have been justifying its recognition and development in the various legal systems. This will allow to point out the main convergences and divergences between the so-called author’s rights, as elaborated in the civil law tradition, and their homologous in common law countries, id est copyright. It will be underlined that, while continental legal systems protect author’s rights by giving relevance not only to the rightsholders’ economic interests, but also to their moral interests, copyright is intended as a monopoly created by law and meant to act as an economic incentive to creation.
In this regard, a terminological specification is needed: the term “copyright” will be used with specific regard to the common law systems, while the expression “author’s rights” will be referred exclusively to the civil law paradigm. However, it is noteworthy that such a distinction will not be applied with regard to the European Union system, with regard to which the terms “copyright” and “author’s rights” will be used in an interchangeable manner. Indeed, the European Union system does not fully adhere neither to the former nor to the latter model.
Among the justificative theories of copyright, the Kantian and the social planning ones will enable the proper understanding of copyright limitations and exceptions as mechanisms, inherent to the copyright system itself, underpinning users’ fundamental rights. This recognition will imply that copyright, recognised as a fundamental right in the European Union, will be expected to interact with users’ freedoms. In particular, this study will suggest that the balance between the various interests at stake may be fostered by using the so-called Drittwirkung, which consists in the horizontal application of fundamental rights.
Drittwirkung is not unknown to the European Union jurisprudence. However, it will be underlined that, in order to further foster its role, it is desirable to proceed to the prodromic search of the minimum and irreducible content of copyright. This is a process the European Union jurisprudence has not completed yet. In particular, it will be noted that copyright can be observed from two main perspectives. On the one hand, it can be assimilated to a property right. On the other, following the approach which is more spread in common law countries, copyright can be considered as a legal monopoly pre-ordered to the promotion of knowledge dissemination.
Both these conceptions will be analysed with the view to identifying which vision is the most inclined to foster a better balance between copyright and users’ interests. It will be concluded that conceiving copyright as a legal monopoly has the advantage to promote the balance between the various interests at stake under the aegis of the proportionality principle and to galvanise the extensive and analogical application of the exceptions. It will be noted that, in the copyright sector, the Court of Justice already makes a desirable and appropriate use of the proportionality principle. However, there is a step forward to make, as the Court has not yet endorsed the possibility to interpret the exceptions in an extensive and analogical manner.
The second chapter has the ambition to conduct a comparative analysis. Indeed, it will be underlined that the restrictive approach to exceptions and limitations in the European Union can be explained in the light of the fact that the European Union adopts the mechanism of the so-called “closed exceptions”. This model will be contrasted first with the US paradigm, which stands out for the open clause known as “fair use”. Then, this
study will deal with the potentialities of the Canadian clause of “fair dealing”, which, despite not being an open exception, is featured by a high level of flexibility. What fair use and fair dealing have in common is that they are both underpinned by the common law conception of copyright as a limited legal monopoly pre-ordered to knowledge dissemination.
With specific regard to fair use, the four factors, on which its jurisprudential application is based, will be briefly examined. This analysis will have the merit to confirm the impression of a part of the US doctrine claiming that, if it is true that fair use is a flexible clause, this does not mean that fair use is so unpredictable to undermine the solidity of the copyright system. This because the conflict between fair use and copyright is only apparent, as both of them share the same constitutional foundation, that is the so- called Copyright Clause. This is witnessed by the fact that fair use has the inherent vocation to cover transformative uses of protected works.
More evidently than fair use, the Canadian clause of fair dealing has the merit to safeguard users’ access to copyright works, by breaking the equation between creative uses and public interest: indeed, copyright pursues its objective to disseminate knowledge when users are able to have access to works, without being relevant whether access is prodromic to further creative inputs by users. Thanks to the analysis of various relevant cases decided by the Canadian Supreme Court, it will be demonstrated that the fair dealing clause can be a precious source of inspiration as a forge of new possible unauthorised uses of copyright works.
In the light of the analysis conducted with regard to fair use and fair dealing, some suggestions will be formulated with a view to making the European Union copyright system more flexible. With this objective in mind, this study will proceed to an analysis of the role of the three-step test which may stand out as a European version of the fair use clause. In particular, following some doctrinal inputs and the approach adopted by the Spanish jurisprudence, it will be demonstrated that the Court of Justice has erroneously intended the three-step test as a filter further limiting the application of copyright limitations and exceptions established by the law. It will be suggested that the three-step test should be conceived as a proactive clause enabling the extensive and analogical application of closed exceptions.
The third chapter aims at proposing some concrete applications of the reasoning conducted in the first two parts of this study. As stated above, the GLAM sector will be taken into consideration. An aspect which will be given great relevance is the impact of the Covid-19 pandemic on the intersections between copyright and the activities of cultural heritage institutions which, indeed, could have played a more decisive role as enablers of scientific research if only digital content sharing had not been so hampered by copyright. Moreover, it will be underlined that, during the period commonly known as lockdown, digitisation of contents became essential to ensure the effectiveness of the right to participate in cultural life.
After a brief excursus about the copyright limitations and exceptions dedicated to the GLAM sector, the single provisions regarding the GLAM sector in Directive 2019/790 will be analysed. In particular, the fallowing ones will be examined: articles 3 and 4 about text and data mining; article 6 enabling the preservation of cultural heritage; article 8 about the uses of out-of-commerce works; article 14, which states that reproductions of works of visual art in the public domain are not subject to copyright and related rights. These norms
will be examined in the light of the vision which conceives copyright as a legal monopoly pre-ordered to the pursuance of public interest. Some proposals will be made with regard to the implementation and the interpretation of the Directive 2019/790, also on the basis of the precious hints which can be taken from the US fair use and the Canadian fair dealing.