Bridging the Differences between Copyright's Legal Traditions – The Emerging EC Fair Use Doctrine
Journal of the Copyright Society of the U.S.A., Vol. 57, No. 3, pp. 521-552, Spring 2010
32 Pages Posted: 12 Dec 2010
Date Written: June 15, 2010
In the current online environment, more flexibility in the field of copyright limitations is a legislative necessity rather than a mere regulatory option. From a social and cultural perspective, the web 2.0, with its advanced search engine services, interactive platforms and various forms of user-generated content, is central to the promotion and enhancement of freedom of expression and information. From an economic perspective, it creates a parallel universe of traditional content providers relying on copyright protection, and emerging internet industries whose further development depends on robust copyright limitations. In particular, the newcomers in the online market – social networking sites, video forums and virtual worlds – promise a remarkable potential for economic growth that have already attracted the attention of the OECD.
Current EC copyright law, however, is likely to frustrate these opportunities for cultural, social and economic development. In contrast to US copyright law, flexible elements, such as an open-ended fair use provision, are sought in vain. Instead, the EC Copyright Directive 2001/29 encourages the further restriction of precisely-defined statutory exceptions in the light of the EC three-step test that has been modelled on similar international provisions. Against this background, the time is ripe to debate the introduction of an EC fair use doctrine that would open up the current restrictive system, offer sufficient breathing space for social, cultural and economic needs, and enable the EC copyright infrastructure to keep pace with the rapid development of the Internet.
For this purpose, the differences between the continental-European and the Anglo-American approach to copyright limitations (section I), and the rationale of fair use legislation (section II) will be discussed before embarking on an analysis of current problems that have arisen in the EC (section III). On this basis the conceptual contours of an EC fair use doctrine will be discussed (section IV). Drawing conclusions, the international dimension of the proposed fair use initiative will be considered (section V).
Keywords: Three-Step Test, Fair Use, Private Copying, Search Engines, Right of Quotation, User-Generated Content, Press Summaries, International Harmonization
Suggested Citation: Suggested Citation