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Journal of Intellectual Property, Information Technology, and Electronic Commerce Law (Jipitec) Volume 1, Issue 2

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Journal of Intellectual Property, Information Technology, and Electronic Commerce Law (Jipitec) Volume 1, Issue 2 1 | 2010 Volume 1 (2010) Issue 2 ISSN 2190-3387 Law and Electronic Commerce Information Technology, Intellectual Property, Journal of Limitations: The Centerpiece of Copyright in Distress – An Introduction by Thomas Dreier Why Cherry-Picking Never Leads to Harmonisation: The Case of the Limitations on Copyright under Directive 2001/29/EC by Lucie Guibault The International Three-Step Test: A Model Provision for EC Fair Use Legislation by Martin Senftleben Declaration on the “Three-Step Test“: Where do we go from here? by Reto M. Hilty Unsticking the centre-piece – the liberation of European copyright law? by Jonathan Griffiths Governance of Massive Multiauthor Collaboration – Linux, Wikipedia, and Other Networks: Governed by Bilateral Contracts, Partnerships, or Something in Between? by Dan Wielsch A Primer on ACTA: What Europeans Should Fear about the Anti-Counterfeiting Trade Agreement by Axel Metzger Stieper, Rechtfertigung, Rechtsnatur und Disponibilität der Schranken des Urheberrechts, 2010 by Achim Förster Declaration: A balanced interpretation of the “three-step test” in copyright law Draft European Copyright Code Editors: Thomas Dreier Axel Metzger Gerald Spindler www.jipitec.eu Journal of Intellectual Property, Information Technology and Table Of Contents Electronic Commerce Law Volume 1, Issue 2, July 2010 Articles www.jipitec.eu [email protected] Limitations: The Centerpiece of Copyright A joint publication of: in Distress – An Introduction by Thomas Dreier 50 Prof. Dr. Thomas Dreier, M. C. J., Karlsruhe Institute of Technology, Why Cherry-Picking Never Leads to Harmonisation: Vincenz-Prießnitz-Str. 3, 76131 Karlsruhe The Case of the Limitations on Copyright under Directive 2001/29/EC Prof. Dr. Axel Metzger, LL. M., by Lucie Guibault 55 Institute for Legal Informatics, Leibniz Universität Hannover, The International Three-Step Test: A Model Königsworther Platz 1, 30167 Hannover Provision for EC Fair Use Legislation by Martin Senftleben 67 Prof. Dr. Gerald Spindler, Dipl.-Ökonom, Georg-August- Declaration on the “Three-Step Test“: Universität Göttingen, Where do we go from here? Platz der Göttinger Sieben 6, by Reto M. Hilty 83 37073 Göttingen Unsticking the centre-piece – the liberation Karlsruhe Institute of Technology, Leibniz Universität Hannover, and of European copyright law? Georg-August-Universität Göttingen by Jonathan Griffiths 87 are corporations under public law, and represented by their respective Governance of Massive Multiauthor Collaboration – Linux, presidents. Wikipedia, and Other Networks: Governed by Bilateral Editors: Contracts, Partnerships, or Something in Between? Thomas Dreier by Dan Wielsch 96 Axel Metzger Gerald Spindler A Primer on ACTA: What Europeans Should Fear Board of Correspondents: about the Anti-Counterfeiting Trade Agreement Graeme Dinwoodie by Axel Metzger 109 Christophe Geiger Lucie Guibault Ejan Mackaay Miquel Peguera Poch Book reviews Giovanni M. Riccio Stieper, Rechtfertigung, Rechtsnatur und Disponibilität Cyrill P. Rigamonti Olav Torvund der Schranken des Urheberrechts, 2010 Mikko Välimäki by Achim Förster 117 Rolf H. Weber Andreas Wiebe Raquel Xalabarder Editor-in-charge for this issue: Documents Thomas Dreier, Karlsruhe Declaration: A balanced interpretation of the Project Assistants: “three-step test” in copyright law 119 Dennis Jlussi, Philipp Zimbehl Layout: Magdalena Góralczyk, Draft European Copyright Code 123 Matthias Haag ISSN 2190-3387 Funded by 1 49 2010 Thomas Dreier Limitations: The Centerpiece of Copyright in Distress An Introduction by Thomas Dreier, Karlsruhe Prof., Dr. iur., M. C. J. (New York University), Director, Institute for Information and Economic Law, Karlsruhe Institute of Technology (KIT), and Honorary Professor, University of Freiburg, Germany. Abstract: After the exclusive rights in copy- However, serious doubts exist whether the present, right have been consolidated in a century-long his- historically grown system of limitations adequately torical development, limitations and exceptions have balances the interests involved in the information become the main instrument to determine the ex- society. Both the closed list of limitations allowed act scope of copyright. Limitations and exceptions under Art. 5 of the EU Information Society Directive do not merely fine-tune copyright protection. Rather, 2001/29/EC and a narrowly interpreted three-step they balance the interests of authors, rightholders, test contained in Arts. 13 TRIPS and 5 (5) of the In- competitors and end-users in a quadrupolar copy- formation Society Directive appear as obstacles in right system. Understanding this is of particular im- the way of achieving the appropriate balance needed. portance in the digital and networked information This brief article outlines the issues involved which society, where copyrighted information is not only were discussed at the International Conference on created and consumed, but constantly extracted, re- “Commons, Users, Service Providers – Internet (Self-) grouped, repackaged, recombined, abstracted and in- Regulation and Copyright” which took place in Han- terpreted. nover, Germany, on 17/18 March 2010 on the occa- sion of the launch of JIPITEC. Keywords: Copyright, Exceptions, Limitations, Three-Step Test, Information Society Directive © 2010 Thomas Dreier Everbody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Thomas Dreier, Limitations: The Centerpiece of Copyright in Distress - An Introduction, 1 (2010) JIPITEC 50, para. 1. 1 For more than a century, the process of the forma- ventions are only applicable to non-nationals. How- tion and later the harmonization of copyright mainly ever, a third step then saw the enlargement of exist- focused on the definition and subsequent enlarge- ing exclusive rights, or, in other words, a tendency ment of the scope of exclusive rights. This is equally to formulate exclusive rights ever more broadly. To true for the national, the European, and the inter- cite just the most prominent example of the repro- national level. In a first step, the core of the exclu- duction right: from “reproduction in any manner sive rights was established, comprising the rights of or form” (Art. 9 (1) BC) via “the permanent or tem- reproduction, translation, adaptation and commu- porary reproduction of a computer program by any nication to the public.1 In a second step, additional means and in any form, in part or in whole” (Art. 4 rights were defined, such as the resale royalty right, (a) of Directive 91/250/ECC) for computer programs the distribution right, the rental and lending right and the “temporary or permanent reproduction by and, most recently, the making available right.2 Of any means and in any form, in whole or in part” (Art. course, at the international level, not all of these 5 (a) of Directive 96/9/EC) for original data bases to rights are equally binding,3 and technically speaking “direct or indirect, temporary or permanent repro- the minimum rights contained in international con- duction by any means and in any form, in whole or 1 50 2010 Limitations: The Centerpiece of Copyright in Distress in part” (Art. 2 of Directive 2001/29/EC) for copy- tions apparently are nothing more than mere excep- righted works in general. Most likely, the develop- tions. This has led the courts in some member states ment will not even stop there, as can be witnessed, – notably Germany – to follow the principle that in for example, in Germany where a draft amendment case of doubt, limitations should be narrowly inter- to the Copyright Act proposed by newspaper pub- preted.9 There is another imbalance between exclu- lishers proposes to treat even the mere “represen- sive rights on the one hand and limitations and ex- tation” of protected subject matter on a computer ceptions on the other. Whereas exclusive rights are screen as a reproduction.4 subjective rights that grant their respective owner a legal power against third parties and which in many 2 The traditional view of copyright as a set of exclusive countries are consequently protected by the consti- rights is guided by the aim to provide for as much tutional guarantee of property, limitations and ex- protection as possible. Nowhere has this been formu- ceptions are – at best – legal privileges devoid of any lated more clearly as in the recitals of the Infosoc Di- higher-ranking legal protection.10 rective. According to recital 4, only “providing for a high level of protection of intellectual property, will 4 However, limitations and exceptions are more than foster substantial investment in creativity and inno- just the unavoidable tribute to “the public.” Rather, vation.” Similarly, recital 9 of the said Directive ex- limitations fulfill not only one, but several tasks. presses the fundamental belief that “[a]ny harmoni- First of all, from a technical point of view, where sation of copyright and related rights must take as a the exclusive rights are broadly defined, the limita- basis a high level of protection, since such rights are tions and exceptions are the decisive legal element crucial to intellectual creation.” It is this “owner”- that defines the exact contours of the exclusivity. and “property”-centered approach which provides Second, limitations and exceptions thus help to fine- the momentum for an ever-increasing level of
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