On February 10, the Dutch Ministry of
Security and Justice organized an international conference on copyright in The
Hague. The conference provided Dutch decision makers with a good opportunity to
share their views of future copyright policy with fellow EU Member States,
academics, representatives of the entertainment and Internet industries, and
other stakeholders.
It was particularly interesting to see that amid the
extremely polarized debates on IPR enforcement policies, primarily sparked by
SOPA/PIPA in the US and by ACTA in the EU, the Dutch government is about to
make a bold move towards copyright reform. Government officials confirmed that
they considered a more flexible system of copyright exceptions as essential in
the Internet era. Law professor Bernt Hugenholtz who is a member of the Dutch
copyright review committee stressed that there is a need for more flexible,
open norms in order to account for technological change and future innovations.
The current EU
Copyright Directive lacks the necessary flexibility even though it is
urgently needed in areas such as user generated content, information location
tools, the digital classroom, or documentary filmmaking. This poses a serious
impediment to the aims of the exceptions and limitations regime which is
supposed to promote socially desirable goals such as creation, technological
innovation, education, etc. Interesting enough, it is not only some EU
governments who understood the underlying problem and, therefore, bring reforms
on track, but national courts increasingly challenge the current system of
exceptions and limitations (and vice versa). Cases like Bildersuche in Germany or SAIF/Google in France show how courts create a quasi exception to certain uses of
protected work where is no legal exception available.
This discrepancy between the legal regime of the EU
Copyright Directive and reality has rightly been identified as problematic by
some governments in the EU, including the Dutch, Irish, and British. For this
reason these governments will move their reform agenda trying to provide for
flexibility within and alongside the circumscribed exceptions and limitations.
This might cause a rift with the Commission which is more interested in a
harmonization approach at EU level. Even though the Commission is expected to
look at a possible update of the current regime, the decision making process is
too slow to accommodate the pace of technological development and the outcome
of a potential update or even reform remains too uncertain for some Member
States and businesses alike.
Most conference speakers said that a US style system based
on the fair use doctrine would be difficult to implement in Europe’s legal
systems. From a legal security point of view, there will always be a trade-off
between flexibility and legal certainty. This, however, does not prevent
individual Member States and the Commission to strive for a copyright system
that will not stand in the way of future ideas and innovations no one is able
to predict or even imagine at this point in time. Even for the time being,
greater flexibility would help to restore public legitimacy of copyright.
Notwithstanding existing differences between stakeholders,
the conference was refreshing in the sense of debating the underlying problems
of Europe’s copyright regime, away from the shackles of the IPR enforcement
debate as exemplified by ACTA. It would be highly important if future debates
on IPR policy and enforcement had regard for the ‘big picture’ as well.
