Reflections on the ‘State of Exceptions & Limitations: Copyright Flexibilities in the EU and its Member States’ Event

To coincide with the implementation of the CDSM Directive, the State of Exceptions & Limitations: Copyright Flexibilities in the EU and its Member States webinar took place on 1 June 2021 from 10:00 to 13:30 CEST. The webinar was designed to tackle the complexity of copyright protection in Europe and present the preliminary results of activities within the ReCreating Europe project. It attracted a large and diverse audience and included keynote speeches, panel discussions, and presentations.

Keynote

The event kicked off with opening remarks from Professor Caterina Sganga, coordinator of ReCreating Europe. In a presentation titled ‘Rethinking digital copyright law for a culturally diverse, accessible and creative Europe – A brief introduction’, Sganga outlined the aims, members, activities, and expected impact of the project. Additionally, Dr Giulia Priora, postdoctoral researcher at Sant’Anna School of Advanced Studies, illustrated the work conducted within the framework of the ReCreating Europe project. This presentation focused on mapping EU and national legal sources on copyright flexibilities that generated the preliminary results shared during the webinar.

The workshop began with a keynote speech from Prof Séverine Dusollier, member of ReCreating Europe’s Advisory Board, titled ‘Looking for flexibility in exceptions’. Prof Dusollier shared her views on the system of copyright exceptions in the EU, highlighting how inflexibility stems from their scope, strict interpretation, and geographical fragmentation. On the contrary, emphasis was put on the flexibility embedded in the system of copyright economic rights, permitting to significantly expand them. Prof Dusollier’s conclusion was an inspiring one that suggested we conceptualise exceptions not as limits, but rather as substantial parts of the EU copyright legal framework. These take the form of privileges or “enabling devices for socially legitimate uses”.

Panel Sessions

Following the keynote, three concurrent panel sessions were dedicated to specific topics of relevance to the ReCreating Europe project.

The first panel focused on parody and quotation exceptions. Julien Cabay shared his views on the required public knowledge or familiarity about work to harmonise national parody exceptions with the presentation titled, ‘I don’t get it, is that a parody? Why autonomous and uniform interpretation will never lead to autonomous and uniform application’. Philipp Homar presented on ‘Parody and quotation: status quo and recent developments in Austria’, discussing recent national case law and the key role of ‘purpose of the use’ (rather than of the indication of the authors and source) in the case-by-case assessment. Kacper Szkalej presented on ‘The Swedish parody doctrine – ensuring legal certainty through flexibility’, drawing conclusions on the ‘fitness’ of this national legislative and judicial approach.

The second panel focused on teaching and scientific research uses. Ana Lazarova illustrated the need to ensure an adequate scope and applicability of the teaching exception across the EU, the technological neutrality of Art.5(3)(a) InfoSoc Directive, and the attempt to fix its optional nature by way of Art.5 CDSM Directive. Bernd Justin Jütte followed by outlining the weaknesses of the most recent provision, bringing to the table insights from the pre-CDSM Irish experience on the digital teaching exception. Katarzyna Klafkowska-Waśniowska shared her views on the consolidated flexibility displayed by the state-of-the-art teaching exception in Poland with a presentation titled ‘Educational needs and Polish solutions in the EU legal framework’. Finally, Ivana Kunda spoke about teaching exceptions in Croatia, pre-dating the proposed implementation of the CDSM Directive, and its prospective impact on the inflexibility of the exception in the national legal landscape.

The third panel focused on statutory licensing schemes and, in particular, on extended collective licenses (ECL). Eetu Huhta gave a detailed overview of the structure and functioning of ‘Extended Collective Licensing in Finland’. Rita Matulionyte reflected on the question: “ECL for out-of-commerce works in Lithuania: is it worth the effort?”, pointing out the uncertain outcomes and potential pitfalls of the system in Finland. Lastly, Matěj Myška shared his views on the ‘Czech Republic – case study: (Re)introducing ECL for out-of-commerce works’, with emphasis on national developments brought about by the CDSM Directive.

A presentation by Peter Mezei followed. He shared findings of ReCreating Europe’s study on copyright flexibilities and the end-user licensing agreements (EULAs) of selected online platforms and services. Throughout his presentation, he developed a structured end-user assessment of the terms and conditions relevant to user-generated content, family sharing, contractual modification, and procedural safeguards.

Roundtable

The webinar concluded with a roundtable discussion focused on the future of copyright flexibilities in the EU. Lionel Bently stressed the need to focus on the fundamental goals and purposes of EU copyright law and interrogating ourselves about the subsequent adequacy of its breadth and shape. In this light, he commented on the role, nature, and recent interpretation of the quotation exception by the CJEU. Next, Tatiana Synodinou presented soft law norms as instruments to bring flexibility into the EU copyright landscape and their roles vis-à-vis formal legislative intervention. Maurizio Borghi further added to the discussion, sharing views on achieving flexibilities in the construction of the scope of exclusive rights, especially reproduction and communication to the public, as an alternative, if not complementary, perspective on copyright flexibility. Martin Senftleben gave his take on the distinction between unremunerated permitted uses and the prohibition power of the copyright owners, suggesting that the EU should move towards remunerated use privileges.

To close the event, Caterina Sganga reflected on the need to find a common ground around the notions defining and characterising flexibilities in EU copyright law. She suggested that the re-systematisation currently carried out by ReCreating Europe could act as a valuable starting point to tackle some of the gaps and weaknesses in the current legal landscape.

To learn more about the project, its activities and upcoming events, please visit the news section of this website. If you’d like to watch the webinar online, please visit the project’s YouTube channel.