Documentaries, UPF, 19 April 2018 BEYOND LICENSES AND LIMITATIONS Prof. Dr. Martin Senftleben

Content EU copyright limitations EU licensing schemes Way out? No satisfactory solution EU licensing schemes Way out? Exceptio artis

LIMITATIONS

CJEU, 16 juli 2009, case C-5/08, Infopaq I traditional dogma of strict interpretation ‘…that, according to settled case-law, the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly […]. This holds true for the exemption provided for in Article 5(1) of Directive 2001/29, which is a derogation from the general principle established by that directive, namely the requirement of authorisation from the rightholder for any reproduction of a protected work.’ (para. 56-57)

CJEU, 16 juli 2009, case C-5/08, Infopaq I even more reason for this because of ‘three-step test’ in EU copyright law ‘This is all the more so given that the exemption must be interpreted in the light of Article 5(5) of Directive 2001/29, under which that exemption is to be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’ (para. 58)

Restrictive EU framework for limitations of copyright Closed list of limitations Three-step test Broad exclusive rights

Still hope for documentaries and other non-fiction films?

CJEU, 1 December 2011, case C-145/10, Painer/Der Standard more flexible application to safeguard freedom of expression ‘Article 5(3)(d) of Directive 2001/29 [= right of quotation] is intended to strike a fair balance between the right to freedom of expression of users of a work or other protected subject-matter and the reproduction right conferred on authors.’ (para. 134)

Documentaries = the right context? filmmaker always on the defensive ‘…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;…’ (Art. 5(3)(d) InfoSoc Directive 2001/29/EC)

LICENSES

Title of the presentation

Pictures for the future digitization of enormous reservoir of picture and photo material umbrella licensing agreement between National Archive and Pictoright indemnification against claims of non-members of Pictoright but limited use privilege private use, study, enjoyment scientific research cultural follow-on innovation not covered

Problem of orphan works remains need to find rights owner in case of inclusion in documentary film Orphan Works Directive 2012/28/EU only helps cultural heritage institutions ... and in most cases, not even them no exemption from diligent search heavy burden of administration and documentation opt-out always possible right to remuneration

Out-of-commerce a solution? extended collective licensing only use by cultural heritage institutions even then struggle to find workable solution ‘A work or other subject-matter shall be deemed to be out of commerce when the whole work or other subject-matter, in all its translations, versions and manifestations, is not available to the public through customary channels of commerce and cannot be reasonably expected to become so.’ (Article 7(2) Proposed DSM Directive)

cross-border licenses for entire EU territory Elephant in the room cross-border licenses for entire EU territory

EXCEPTIO ARTIS

True rationale of copyright protection not only incentive and reward but cultural follow-on innovation = support of cyclic cultural innovation creation I creation II

Not all rights harmonized HARMONIZED: right of reproduction NOT HARMONIZED: right of adaptation boundary line? no focus on snippets, as in CJEU, Infopaq (11 words already raise copyright issues) instead more general distinction making literal copies = reproduction making transformations = adaptation

National free adaptation rules Austria: § 5(2) Copyright Act requirement of ‘...constituting an independent, new work in comparison with the original work.’ Germany: § 24 Copyright Act requirement of ‘...new features of its own that make the individual features of the original work fade away…’ Netherlands: Art. 13 Copyright Act requirement of ‘…constituting a new, original work…’

sufficient distance: making features of the original work fade away… Traditional test sufficient distance: making features of the original work fade away…

But considerable flexibility inner distance can also be sufficient

Field of application

Documentaries a new field of application? new context = inner distance underpinning: freedom of expression ... but dream may be over soon enough ‘Can the Member States enact a provision which – in the manner of [§ 24 German Copyright Act] – inherently limits the scope of protection of the phonogram producer’s exclusive right to reproduce […] and to distribute […] its phonogram…’ (German Supreme Court, prejudicial questions, case C-476/17, Pelham/Hütter)

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