1. Oxford IP Research Center St Peter’s College, 20/11/2014 Copyright and Creators’ Interests Prof. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague

2. civil law droit d’auteur tradition common law copyright tradition Why creators’ interests?

4. Authors just a figurehead?

5. Social legitimacy of copyright interests of creators not only as a rhetorical argument for justifying the continuous broadening of exclusive rights copyright needs to be based on creators’ interests to remain credible and understandable authors’ interests ≠ industry interests authors’ rights ≠ industry rights

6. Introduction

7. Pierre Bourdieu

8. Niklas Luhmann theory of relatively closed social systems each system has its own, distinct identity boundary between a system and its environment Pierre Bourdieu autonomous social spaces (‘fields’) with individual rules, dominance structures and set of opinions but not isolated from surrounding fields and processes Theoretical Framework

9. Art, money, power

10. Constant internal fight competing players –autonomous, independent artists –bourgeois, dependent artists predominance and leadership –dictating internal discourse –consecration power –quality standards constantly changing structure

11. nomos: l’art pour l’art Autonomy

12. depends on the degree of discourse and consecration power of independent, autonomous artists predominance of dependent, profit-oriented mainstream artists endangers autonomy of the literary and artistic field current crisis because of continuously growing power of commercial players

13. Copyright

14. Rationales of protection incentive (utilitarian approach) reward (natural law approach) thus: focus on financial benefits –aligned with interests of dependent, bourgeois mainstream artists? –neglecting the interests of independent, autonomous artists? –enticing autonomous artists away from the l’art pour l’art logic of the field?

15. newcomers within the group of autonomous artists for a new avant-garde movement, the predominant rules must be criticized avant-garde arrière-garde Other features of the system

16. Andy Warhol

17. idea/ expression dichotomy quotation, parody use for educational purposes Central support features

18. exploitation rights ensuring constant supply of commercial productions limitations supporting constant evolution of new avant-garde movements Copyright ‘neutrality’

19. Impact on the concept of authors’ rights

20. not only right to commercially exploit own works (bourgeois authors) but also right to transformative use of the works of others (autonomous authors) Copyright ‘neutrality’

21. broad exclusive rights exhaustive enumeration of exceptions three-step test EU acquis (InfoSoc Directive)

22. ‘ The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied 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.’ Art. 5(5) InfoSoc Directive

23. ‘…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, Infopaq

24. ‘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) CJEU, Infopaq

25. ‘In accordance with its objective, [the exemption of temporary copying under Article 5(1) of Directive 2001/29] must allow and ensure the development and operation of new technologies and safeguard a fair balance between the rights and interests of right holders, on the one hand, and of users of protected works who wish to avail themselves of those new technologies, on the other.’ (para. 164) CJEU, FA Premier League

26. CJEU, Eva-Maria Painer

27. ‘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) CJEU, Eva-Maria Painer

28. CJEU, Deckmyn

29. ‘In addition, as stated in recital 31 in the preamble to Directive 2001/29, the exceptions to the rights set out in Articles 2 and 3 of that directive, which are provided for under Article 5 thereof, seek to achieve a ‘fair balance’ between, in particular, the rights and interests of authors on the one hand, and the rights of users of protected subject-matter on the other.’ (para. 26) CJEU, Deckmyn

30. ‘It follows that the application, in a particular case, of the exception for parody […] must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody, within the meaning of Article 5(3)(k).’ (para. 27) CJEU, Deckmyn

31. not necessarily, at least not in all cases… Right of transformative use already recognized and applied?

33. M. Morrison, Bridgeport Redux, S. 96 „…what I will refer to throughout the rest of my paper as the collage paradigm in sampling refers, essentially, to what derivative works sampling is not, i.e., the layered use of quantitatively and/or qualitatively insignificant samples to create new musical works that bear little or no resemblance to the original work.“

34. collage sampling Obstacle to cultural follow-on innovation derivative works sampling

35. Impact on remuneration mechanisms

36. winning in economic terms = losing in artistic terms Autonomous authors eligible at all?

37. Fair remuneration legislation German Copyright Contract Act 2002 grant of a right to fair remuneration –contract modification in case of insufficient remuneration –difficulty of providing evidence of customary remuneration in a given sector author association/industry negotiations common remuneration rules as evidence of a fair remuneration standard

38. Limited success in practice ‘Common Remuneration Rules for Writers of German Fiction’ –difficult negotiations supported by Ministry –limited participation of individual publishers Supreme Court decisions –analogy 1: guideline in case of translators –analogy 2: guideline in case of non-fiction =impact on the entire sector, obstacle to the establishment of further Common Rules

39. Nonetheless export success draft legislation in the Netherlands based on the same mechanism proliferation of symbolic copyright contract legislation in the EU? –future harmonization likely? –German/Dutch model as a basis? open question: antitrust concerns –encouragement of cartel formation? –EU competition authorities sleeping?

40. ex post remuneration claim (autonomous authors) ex ante remuneration claim (bourgeois authors) Broader perspective

41. The end. Thank you! For publications, search for ‘senftleben’ on www.ssrn.com. contact: m.r.f.senftleben@vu.nl