Fair Use in Europe: In Search of Flexibilities

30 Pages Posted: 15 Nov 2011

See all articles by P. Bernt Hugenholtz

P. Bernt Hugenholtz

University of Amsterdam, Institute for Information Law (IViR)

Martin Senftleben

Institute for Information Law (IViR), University of Amsterdam; University of Amsterdam

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Date Written: November 14, 2011


There appear to be good reasons and ample opportunity to (re)introduce a measure of flexibility in the national copyright systems of Europe. The need for more openness in copyright law is almost self-evident in this information society of highly dynamic and unpredictable change. A historic perspective also suggests that copyright law, particularly in the civil law jurisdictions of Europe, has lost much of its flexibility in the course of the past century. By contrast, with the accelerating pace of technological change in the 21st Century, and in view of the complex process of law making in the EU, the need for flexible copyright norms both at the EU and the national level is now greater than ever. Against this background, the authors argue that the EU copyright acquis leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized. A Member State desiring to take full advantage of all policy space available under the Information Society Directive, might achieve this by literally transposing the Directive’s entire catalogue of exception prototypes into national law. In combination with the three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. Less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, can explore the policy space left by distinct exception prototypes. In addition, the unharmonized status of the adaptation right would leave Member States free to provide for limitations and exceptions permitting, for example, fair transformative uses in the context of producing and disseminating user-generated content.

Keywords: fair use, Europe, Information Society Directive, WIPO Copyright Treaty, user-generated content, search engines, limitations and exceptions, right of adaptation, flexibility, three-step test

Suggested Citation

Hugenholtz, P. Bernt and Senftleben, Martin, Fair Use in Europe: In Search of Flexibilities (November 14, 2011). Available at SSRN: https://ssrn.com/abstract=1959554 or http://dx.doi.org/10.2139/ssrn.1959554

P. Bernt Hugenholtz (Contact Author)

University of Amsterdam, Institute for Information Law (IViR) ( email )

P.O. Box 1030
Amsterdam, 1000 BA

Martin Senftleben

Institute for Information Law (IViR), University of Amsterdam ( email )

Rokin 84
Amsterdam, 1012 KX

University of Amsterdam ( email )

Roetersstraat 11
Amsterdam, NE 1018 WB

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