The Future of Copyright Limitations Institute for Information Law University of Amsterdam Bernt Hugenholtz

2 Preserve or Abolish Limitations? Users: –‘what goes offline, must go online’ Right holders: –digital environment allows individual licensing (‘pay as you go’) –no need for limitations

3 Three Types of Limitations Fundamental rights Public interest Market failure

4 Limitations Based on Fundamental Rights Freedom of expression and information –quotation right, parody –news reporting –scientific communication Privacy –private use Preserve in digital environment

5 Limitations Based on Public Interest Education –classroom teaching –compilations Culture –library privileges –archives, musea Re-evaluate in digital environment –how to delimit limitations?

6 Limitations Based on Market Failure Transaction costs prohibit licensing Examples: –In-company photocopying –Music in small restaurants and bars Digital environment favours transactional models Abolish market failure-based limitations

7 The Three Step Test Art. 13 TRIPs = 10.2 WIPO Copyright Treaty ( >9.2 BC) –‘certain special cases’ –no conflict with normal exploitation –no prejudice to authors/rights holders WTO Panel Decision, June 2000 (EU v. US): –exemption may not become rule –validity of public policy objective not tested

8 European Copyright Directive (Common Position) Caching and browsing exemption ‘Shopping list’ of optional limitations –exhaustive list, no ‘safety net’ provision –‘fair’ remuneration in certain cases –subject to 3-step test Contractual override not prohibited Complex anti-circumvention rules –MS’s may take measures against ‘digital lock-up’

9 The Shopping List Reproduction –Reprography –Private use –Libraries, schools, museums, archives –‘Ephemeral’ recording broadcasting –Social institutions Repro & communication –Teaching & research –Disabled –News reporting –Criticism, parody –Proceedings –Speeches –Religion –Public places

10 Conclusions Limitations are here to stay Not all limitations are created equal