International Conference in The Hague: Towards Flexible Copyright?

February 17, 2012

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.

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