The Perfect Match – Civil Law Judges and Open-Ended Fair Use Provisions
American University International Law Review, Vol. 33, No. 1 (2017), 231-286
56 Pages Posted: 18 Jul 2017 Last revised: 3 Dec 2017
Date Written: June 1, 2017
In the debate on the introduction of open-ended fair use provisions in the copyright legislation of civil law countries, it is often argued that judges with a civil law background do not have the experience necessary to apply open-ended norms in an appropriate way. The argument poses an obstacle to a meaningful debate about fair use because of its destabilizing effect. Policy makers are concerned that the adoption of fair use provisions could cause legal uncertainty and erode the traditional civil law culture in the field of copyright. The situation in the EU can serve as an example. Despite strong pleas for the introduction of an opening clause and the emergence of more and more fair use legislation in other regions, the current reform proposals of the European Commission do not include the adoption of an open-ended fair use norm. While the 2013/2014 Public Consultation on the Review of the EU Copyright Rules explicitly addressed the need for more flexibility, the proposed new copyright legislation is silent on the issue.
Against this background, the following analysis seeks to dispel unfounded concerns about overstrained judges. It aims to pave the way for new initiatives to arrive at fair use legislation in the EU by showing that there is no reason to believe that civil law judges are incapable of applying open-ended fair use norms adequately and consistently. To lay groundwork for this analysis, the legislative traditions underlying copyright limitations in civil law countries (the majority of EU member states) and common law countries (such as the U.S.) will be outlined before emphasizing the need for the introduction of open-ended fair use legislation in civil law systems, in particular in EU copyright law. On this basis, strategies for translating lessons to be learned from the U.S. fair use approach into the EU system will be discussed. In this context, it will be demonstrated that the introduction of a flexible copyright limitation is unlikely to fail because of an inability or reluctance of civil law judges to apply open-ended norms. The example of the existing defence of “due cause” in EU trademark law shows that the opposite is true. Moreover, a flexible copyright limitation in civil law jurisdictions need not be a verbatim copy of the U.S. fair use doctrine. It seems preferable to apply traditional limitation prototypes by analogy in situations that require new use privileges. To establish a system that allows this analogous application, the role of the international three-step test in EU copyright law would have to be recalibrated.
Keywords: copyright law, trademark law, European Union, common law, civil law, stare decisis, case precedent, fair use, due cause, three-step test, Berne Convention, TRIPS Agreement, WIPO Copyright Treaty
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