Oxford IP Research Center St Peters College 20112014

Oxford IP Research Center St Peter’s College, 20/11/2014 Copyright and Creators’ Interests Prof. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague

Why creators’ interests? civil law droit d’auteur tradition common law copyright tradition

Authors just a figurehead?

Social legitimacy of copyright • interests of creators not only as a rhetorical argument for justifying the continuous broadening of exclusive rights • copyright needs to be based on creators’ interests to remain credible and understandable • authors’ interests ≠ industry interests • authors’ rights ≠ industry rights

Introduction

Pierre Bourdieu

Theoretical Framework • Niklas Luhmann • theory of relatively closed social systems • each system has its own, distinct identity • boundary between a system and its environment • Pierre Bourdieu • autonomous social spaces (‘fields’) with individual rules, dominance structures and set of opinions • but not isolated from surrounding fields and processes

Art, money, power

Constant internal fight • competing players – autonomous, independent artists – bourgeois, dependent artists • predominance and leadership – dictating internal discourse – consecration power – quality standards • constantly changing structure

Autonomy nomos: l’art pour l’art

Autonomy • depends on the degree of discourse and consecration power of independent, autonomous artists • predominance of dependent, profit-oriented mainstream artists endangers autonomy of the literary and artistic field • current crisis because of continuously growing power of commercial players

Copyright

Rationales of protection • incentive (utilitarian approach) • reward (natural law approach) • thus: focus on financial benefits – aligned with interests of dependent, bourgeois mainstream artists? – neglecting the interests of independent, autonomous artists? – enticing autonomous artists away from the l’art pour l’art logic of the field?

Other features of the system • newcomers within the group of autonomous artists • for a new avant-garde movement, the predominant rules must be criticized avant-garde arrière-garde

Andy Warhol

Central support features idea/ expression dichotomy quotation, parody use for educational purposes

Copyright ‘neutrality’ exploitation rights ensuring constant supply of commercial productions limitations supporting constant evolution of new avant-garde movements

Impact on the concept of authors’ rights

Copyright ‘neutrality’ not only right to commercially exploit own works but also right to transformative use of the works of others (bourgeois authors) (autonomous authors)

EU acquis (Info. Soc Directive) broad exclusive rights exhaustive enumeration of exceptions three-step test

Art. 5(5) Info. Soc Directive ‘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. ’

CJEU, Infopaq ‘…that, according to settled case-law, the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly […]. This holds true for the exemption provided for in Article 5(1) of Directive 2001/29, which is a derogation from the general principle established by that directive, namely the requirement of authorisation from the rightholder for any reproduction of a protected work. ’ (para. 56 -57)

CJEU, Infopaq ‘This is all the more so given that the exemption must be interpreted in the light of Article 5(5) of Directive 2001/29, under which that exemption is to be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subjectmatter and do not unreasonably prejudice the legitimate interests of the rightholder. ’ (para. 58)

CJEU, FA Premier League ‘In accordance with its objective, [the exemption of temporary copying under Article 5(1) of Directive 2001/29] must allow and ensure the development and operation of new technologies and safeguard a fair balance between the rights and interests of right holders, on the one hand, and of users of protected works who wish to avail themselves of those new technologies, on the other. ’ (para. 164)

CJEU, Eva-Maria Painer

CJEU, Eva-Maria Painer ‘Article 5(3)(d) of Directive 2001/29 [= right of quotation] is intended to strike a fair balance between the right to freedom of expression of users of a work or other protected subject-matter and the reproduction right conferred on authors. ’ (para. 134)

CJEU, Deckmyn

CJEU, Deckmyn ‘In addition, as stated in recital 31 in the preamble to Directive 2001/29, the exceptions to the rights set out in Articles 2 and 3 of that directive, which are provided for under Article 5 thereof, seek to achieve a ‘fair balance’ between, in particular, the rights and interests of authors on the one hand, and the rights of users of protected subject-matter on the other. ’ (para. 26)

CJEU, Deckmyn ‘It follows that the application, in a particular case, of the exception for parody […] must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody, within the meaning of Article 5(3)(k). ’ (para. 27)

Right of transformative use already recognized and applied? not necessarily, at least not in all cases…

M. Morrison, Bridgeport Redux, S. 96 „…what I will refer to throughout the rest of my paper as the collage paradigm in sampling refers, essentially, to what derivative works sampling is not, i. e. , the layered use of quantitatively and/or qualitatively insignificant samples to create new musical works that bear little or no resemblance to the original work. “

Obstacle to cultural follow-on innovation derivative works sampling collage sampling

Impact on remuneration mechanisms

Autonomous authors eligible at all? winning in economic terms = losing in artistic terms

Fair remuneration legislation • German Copyright Contract Act 2002 • grant of a right to fair remuneration – contract modification in case of insufficient remuneration – difficulty of providing evidence of customary remuneration in a given sector • author association/industry negotiations • common remuneration rules as evidence of a fair remuneration standard

Limited success in practice • ‘Common Remuneration Rules for Writers of German Fiction’ – difficult negotiations supported by Ministry – limited participation of individual publishers • Supreme Court decisions – analogy 1: guideline in case of translators – analogy 2: guideline in case of non-fiction = impact on the entire sector, obstacle to the establishment of further Common Rules

Nonetheless export success • draft legislation in the Netherlands based on the same mechanism • proliferation of symbolic copyright contract legislation in the EU? – future harmonization likely? – German/Dutch model as a basis? • open question: antitrust concerns – encouragement of cartel formation? – EU competition authorities sleeping?

Broader perspective ex ante remuneration claim (bourgeois authors) ex post remuneration claim (autonomous authors)

The end. Thank you! For publications, search for ‘senftleben’ on www. ssrn. com. contact: m. r. f. senftleben@vu. nl