1. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 1 Christophe Geiger Associate Professor, Director General and Director of the Research Department, Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg Open Access through an Opening of Copyright Law? The crucial role of Limitations and Exceptions Direitos autorais e acesso à informação, conhecimento e cultura ENSP, Fiocruz, Rio de Janeiro, 11 September 2012

2. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 2 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law I. Introduction: Defining the Problem -Copyright is nowadays facing a serious crisis of legitimacy -Consequence: A need to “rethink” copyright in the digital environment in order to secure a balanced legislation Francis Gurry, Director General of WIPO, The Future of Copyright, Sydney, 25 February 2011: « Rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it. There is, in any case, no other choice- either the copyright system adapts to the natural advantage that has evolved or it will perish ».

3. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 3 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law I. Defining the Problem (continued) More limitations, less innovation? Exclusivity the only way? Thesis: A well designed limitation system can have beneficial consequences on innovation and creativity, while also readjusting the copyright balance in favour of creators Ch. Geiger, “Promoting Creativity through Copyright Limitations, Reflections on the Concept of Exclusivity in Copyright Law”, Vanderbilt Journal of Entertainment & Technology Law 2010, Vol. 12, n° 3, 2010, 515.

4. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 4 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law I. Defining the Problem (continued) Copyright law as a result of a balance between diverging interests - Author‘s rights are not only the rights of the authors - Need to strike a fair balance between authors, the public and commercial operators (producers) - The “social function” of copyright (Josef Kohler and Otto von Gierke, 19 th century)

5. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 5 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law I. Defining the Problem (continued) Initial convergence between the rationale and principles of both copyright and freedom of expression and information/ access to works - Copyright was created (at least partially) as a mean to ensure access to works and information (has its roots in the ideas of Enlightenment of the 18 e century) - In principle, copyright does not prevent access: balance reached through the “boundaries” of the exclusive right (conditions for protection, term, exceptions and limitations etc…).

6. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 6 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law I. Defining the Problem (continued) New technologies are upsetting the copyright balance: A need to redefine the rules to ensure that the various interests involved are taken into account - Technological progress has facilitated the reproduction and mass distribution of creative works, challenging established commercial models (for example “peer to peer” file sharing). - At the same time, communication technologies have enormous potential to foster access to information, education and creativity

7. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 7 II. Assessing the situation regarding Limitations and Exceptions : An Unsatisfying result Copyright’s extension of exclusive rights in the digital environment has not been counterbalanced: - Exclusive rights are defined in broad terms and adapt easily to social, economic and technical changes. - Limitations and Exceptions are defined narrowly. In most countries, they are often interpreted restrictively. Adaptation to the digital environment and harmonisation failed. Strong lobbying activity to keep their scope reduced. Consequence: No flexibility on the limitations side, no general provision to allow “Fair use”. Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law

8. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 8 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law The situation in the EU regarding Limitations and Exceptions Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society Art. 5 Exceptions and limitations (optional list, only art. 5(1) mandatory: temporary/ transient copy, “browsing” exception); possibility to implement in national law with a more restrictive wording In addition Art. 6 Legal protection of technical measures Technical protection measures (TPM) were protected against circumvention.

9. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 9 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law Problem: What to do when a TPM conflicts with an exception? TPM are “blind” and can not recognize if a use is legitimate or not! Solution of the directive: Art. 6 (4): In the absence of voluntary measures taken by rightholders, (…) Member States shall take appropriate measures possibility to use regarding certain exceptions, but only may take such measures in respect to other (e.g. private copy exception). Certain exceptions are not guaranteed. And: possibility of derogating from the exceptions and limitations by contract in an “access on demand” context, thus enabling doubt to be cast on their actual benefit in the digital environment (Art. 6 (4) Par. 4). Consequence: balance of copyright law ruled out by contracts!

10. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 10 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law INFOSOC- Copyright directive, 2001 EU Policy on copyright in the digital environment to be found in the recitals, such as: - Recital (9): “Any harmonization of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation”. - Recital (11): “A rigorous, effective system for the protection of copyright and related rights is one of the main ways of ensuring that European cultural creativity” Social concerns around copyright became more and more important, having a significant impact on the image of copyright.

11. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 11 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law - Green Paper of the Commission of the European Communities on “Copyright in the Knowledge Economy”, Brussels, July 16, 2008, COM (2008) 466/3: Exceptions and limitations, especially for education and research purposes, ensure the dissemination of knowledge within copyright law and are the key to the balance of EU legislation. - Unclear result of the consultation: Communication from the Commission, 19 October 2009, “Copyright in the Knowledge Economy”, COM (2009) 532 final, at 10: Interests involved have to be carefully balanced and care taken to “ensure that the ground is properly laid for appropriate follow-up actions as a core element of the future comprehensive strategy for intellectual property rights”

12. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 12 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law - “Creative content in a European digital single market: challenges for the future”, a reflection document of DG INFSO and DG MARKT, October 2009 “Community rules on copyright have harmonised the scope and tenor of the exclusive rights without, however, providing clear boundaries for these rights by means of uniform exceptions. This is indeed a state of affairs that should not persist in a truly integrated market. The unclear contours of strong “exclusive rights” are neither beneficial for the internal market in knowledge products nor for the development in internet services. Further harmonisation of copyright laws in the EU, in particular relating to the different and optional limitations and exceptions, would create more certainty for consumers about what they can and cannot do with the content they legally acquire”.

13. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 13 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law II. Optimizing the situation regarding Limitations and Exceptions: Flexibility through interpretation The drafting of the limitations provided by the directive is often more permissive then national law and has a flexible wording. Their interpretation must respect general principles of EU law and fundamental rights. 1- The role of general principles of EU law CJEU recently increasingly use the notion of “autonomous concepts of Union law” to oblige Member States to interpret EU law in a uniform manner: Broad wording of the Directive regarding limitations might prevail in the future over narrow wording in national law

14. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 14 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law - CJEU, 21 October 2010, Sociedad General de Autores y Editores (SGAE) versus Padawan SL, Case C-467/08: “[…] ‘Fair compensation’, within the meaning of Article 5(2)(b) of Directive 2001/29, is an autonomous concept of European Union law which must be interpreted uniformly in all the Member States that have introduced a private copying exception […].” (para. 37). Are all limitations of Art. 5 of the Directive to be considered as such? -CJEU, 1 December 2011, Eva-Maria Painer, Case C-145/10 “The interpretation of the conditions of the exception must enable the effectiveness of the exception thereby established to be safeguarded and its purpose to be observed” (para. 133). Interpretation by the Court of the limitations in the light of its purpose and its justification (in this case, freedom of expression).

15. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 15 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law 2- The role of Fundamental rights The Lisbon Treaty (entered into force on 1 December 2009) brings a major changes: EU-Charter of Fundamental Rights at the top of the hierarchy of norms. Consequence: A “constitutionalization” of the entire EU legal order (therefore also of the Copyright and IP Regime) Increasing use of fundamental rights by the Court of Justice and national courts to interpret IP law (CJEU, 29 January 2008, Promusicae v. Telefónica de España SAU, Case C ‑ 275/06. No. 70): Consequence: Interpretation of existing Limitations and Exceptions “in the light” of Fundamental Rights.

16. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 16 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law One open norm subject to interpretation is the “Three Step Test”, which could therefore provide for a good Entrance Door for Fundamental Rights Reasoning To be found in Article 13 TRIPS, Article 9 (2) Berne Convention, Article 10 of the WIPO Copyright Treaty (WCT), Article 16 paragraph 2 of the WIPO Performances and Phonograms Treaty (WPPT)) but also in Art. 5.5 InfoSoc-Directive: The test seems to be addressed to the judiciary „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“.

17. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 17 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law Article 27 Universal Declaration on Human Rights of 1948 (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. - Art. 27 UDHR and Art. 15 ICESCR: both provisions offer modern and balanced provisions on intellectual property protection (with a mixture of ethical and economic considerations).

18. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 18 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law Correctly interpreted, the three-step test can act as an enabling clause for extensive readings Declaration on a Balanced Interpretation of the ‘Three-Step Test’ in Copyright Law” (2008) 39 IIC 707. Point 4: Limitations and exceptions do not conflict with a normal exploitation of protected subject matter, if they are based on important competing considerations (such as fundamental rights) Point 5: The Three-Step Test should be interpreted in a manner that respects the legitimate interests of third parties, including interests deriving from human rights and fundamental freedoms Consequence: The Three Step Test, a sort of “Fair Use” provision? (Court of Appeal of Barcelona, 17 September 2008)

19. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 19 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law Other examples of “opening” in the wording of limitations of the InfoSoc- directive: Art. 5.3 (d) the quotation exception: “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’; (establish a sort of fair use/fair practice test) (f) use of political speeches as well as extracts of public lectures or similar works or subject-matter to the extent justified by the informatory purpose and provided that the source, including the author's name, is indicated, except where this turns out to be impossible; (a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non- commercial purpose to be achieved;

20. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 20 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law III. Limitations and Exceptions vs. Contractual arrangements: contractual initiatives and the other access possibilities under discussion - Regulation not necessary if interested parties agree on establishing efficient means of access by contracts. Anyhow: it needs to be verified if the access is granted under fair conditions (pricing issue) - A few example of contractual initiatives: - « ARROW » (Accessible Registry of Rights and Orphan Works in Europe) - High Level Expert Group on Digital Libraries - European digital library project “Europeana” - “Google book settlement” signed by Google and the Association of American Publishers. Invalidated by the United States District Court Southern District of New York, 22 mars 2011): breach of basic the principles of US Copyright law “would simply go too far”. - Results not of these initiatives not really satisfying !

21. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 21 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law IV. Conclusions/recommendations - Assist and encourage contractual initiatives to provide improved access to works and verify their effectiveness (creation of a public authority, the “Observatory of Access to Copyrighted Work”. Task: facilitate legal uses at fair prices, especially in the field of education and research). - Facilitate and encourage an offer of information operating via an “open-content” model. - Introducing mandatory and extended collective management systems, especially where exclusive rights can have negative effects on access to information (for example, in the case of orphan or out-of-print works).

22. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 22 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law V. Taking Copyright law further: What reform? Combining flexibility with a catalogue of limitations - Identify the exceptions and limitations essential for freedom of expression and information in a democratic society and ensure that these are fully effective. - Secure a balanced and flexible legal framework Example: The European Copyright Code (released on 26 April 2010, EIPR 2011, 76) drafted by a group of academics (the ‘Wittem Group’) could serve as inspiration According to the Drafters (Fn. 48): “Reflects a combination of a common law style open-ended system of limitations and a civil law style exhaustive enumeration”.

23. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 23 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law Chapter 5: Limitations - Uses with minimal economic significance (Art. 5(1)) - Uses for the purpose of freedom of expression and information (Art. 5(2)) - Uses permitted to promote social, political, and cultural objectives (Art. 5 (3)) such as educational uses (Art 5 (3) 2 b). - Uses for the purpose of enhancing competition (Art. 5 (4)) - Opening/enabling clause based on the three-step test (Art. 5(5)), in the spirit of the “Declaration on the Three-Step Test”

24. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 24 Christophe Geiger Securing access to knowledge, a crucial issue for a modern and balanced copyright law Art. 5.5 of the European Copyright Code – Further limitations The “Three Step test” redrafted as an enabling clause and a clear opening of the close list of limitations “Any other use that is comparable to the uses enumerated in art. 5.1 to 5.4(1) is permitted provided that the corresponding requirements of the relevant limitation are met and the use does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author or rightholder, taking account of the legitimate interests of third parties”.

25. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 25 Christophe Geiger Securing access to knowledge, a crucial issue for a modern and balanced copyright law VI. What conclusions can be drawn from the EU experience for the international copyright system? Possible approaches: - Implementing an International Instrument on Limitations and Exceptions (on the model of the European Copyright Code: List with mandatory limitations with an opening clause?). - Implementing an Instrument on the Interpretation of Limitations and Exceptions at international level (preferably through Soft law) Necessary to secure policy space at national level and that the three-step test does not act as a “show stopper” to any copyright reform - A combination of both?

26. Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg 26 Christophe Geiger Securing access to knowledge and culture, a crucial issue for a modern and balanced copyright law VI. What conclusions can be drawn from the EU experience for the international copyright system (to be continued) Based on: -Christophe Geiger, “Implementing an International Instrument for Interpreting Copyright Limitations and Exceptions”: IIC 2009, 627. -Christophe Geiger and Franciska Schönherr, “Defining the Scope of Protection of Copyright in the EU: The Need to Reconsider the Acquis regarding Limitations and Exceptions”, in: T. Synodinou (ed.), Towards a European Copyright Code?, Kluwer Law International, 2012 (forthcoming).