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

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

3. LIMITATIONS

4. 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 )

5. 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)

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

7. Still hope for documentaries and other non-fiction films?

8. 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)

9. 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)

10. LICENSES

11. Title of the presentation

12. 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

13. 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

14. 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)

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

16. EXCEPTIO ARTIS

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

18. 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

19. 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…’

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

21. But considerable flexibility
inner distance can also be sufficient

22. Field of application

23. 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)

24. THE END. THANK YOU!