Over the next five years, we need to remove the barriers that prevent knowledge institutions from fulfilling their public mission in the digital environment. Specifically, we need a targeted legislative intervention – a Digital Knowledge Act –  that enables knowledge institutions to offer the same services online as offline.

Such a regulation would require a few surgical interventions in copyright law, such as the introduction of a unified research exception (see our Policy Recommendation #9) and an EU-wide e-lending right (see our Policy Recommendation #10). However, it would mostly involve measures that fall outside of the scope of recent copyright reform discussions.

Above all, we’re envisioning a number of safeguards that would protect knowledge institutions against the abuse of property rights. Due to the complex and fragmented state of European copyright law, many institutions shy away from fully exercising their usage rights. We believe that an exemption from liability for those who act in good faith and believe that their activities are legal would mitigate this chilling effect (see our Policy Recommendation #17).

Another limiting factor for knowledge institutions in the digital realm are unfair licensing conditions. We believe that rightsholders should be obliged to license works under reasonable conditions to libraries as well as educational and research institutions.

Finally, knowledge institutions should be allowed to circumvent technological protection measures where locks prevent legitimate access and use of works, such as uses covered by limitations and exceptions (see our Policy Recommendation #13).

These demands are far from new and even the idea of a Digital Knowledge Act has been floating around in Brussels policy circles for a long time. Now it is up to the incoming legislators to show that they have the political will to tackle these problems in a comprehensive manner to unlock the full potential of Europe’s knowledge institutions.

The post A Digital Knowledge Act for Europe appeared first on COMMUNIA Association.

We made the following statement regarding limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

Dear Delegates,

We come here, year after year, to defend the rights of teachers and researchers. We support your discussions. We bring evidence. We talk to you, the person that was here before you and the person that will come after you. It’s a massive effort. Yet, every year, we leave this room empty handed, with no binding instruments, no soft laws, nothing that could make a difference.

Do know that we question if we should come back. The only reason why we persist is because we cannot stand talking with those researchers and teachers about the challenges they face when researching newspapers or showing Youtube videos in Zoom classes, and turn our backs on them.

So today, I’ll use the 1 minute that I have to let you hear from one of them, in the hope that this will be it, that these will be the words that will also make you stand for them.

Jonas is a Senior Lecturer in Comparative Literature at the University of Gothenburg, in Sweden, and we interviewed him for our publication “Nobody puts research in a cage”.

Jonas is struggling because he cannot have remote access to the data sources he uses in his research and also because he cannot share his research results and underlying resources with colleagues for purposes of verification and validation of his research. In his words:

We are studying book reviews in Swedish newspapers from 1906, 1956 and 2006. We want to train the computers to understand different expressions in their context. We also have a dream that feels more and more likely, insane at first but now maybe real? That is, to train a text corpus to identify what is a book review!
To access material from 1956, we have to go to the National Library Lab in Stockholm. It is a small glass cage with three data terminals. You sit in the lab, annotate. Access to it costs SEK 70,000 the first year, and 35,000 in the following years. You are not allowed to take data in or out, all labs must be done in the cage.
The transparency is non-existent. If someone wants to verify the results, they also have to buy the license for a lot of money. An incredible anxiety!

End of quote.

Thank you.

The post SCCR/43: COMMUNIA Statement on Limitations and Exceptions appeared first on COMMUNIA Association.

This blog post analyses the implementation of the copyright exceptions for Text and Data Mining, which is defined in the Italian law as any automated technique designed to analyse large amounts of text, sound, images, data or metadata in digital format to generate information, including patterns, trends, and correlations (Art. 70 ter (2) LdA). As we will see in more detail below, the Italian lawmaker decided to introduce some novelties when implementing Art. 3, while following more closely the text of the Directive when implementing Art. 4.

Text and data mining for scientific purposes

Art. 70 ter (1) LdA permits reproductions made by research organisations and cultural heritage institutions for scientific research purposes, for purposes of extraction of text and data from works or other materials available on networks or databases to which they lawfully have access to, as well as communication to the public of the results of research when expressed in new original works. It seems that the Italian lawmaker committed a lexical fallacy by adding that the purpose of the reproduction is to extract text and data from works and other materials available in networks or databases. This, as well as limiting the type of protected materials to those present on networks or databases, appear to be legislative inventions incompatible with the directive.

Notably, the new Italian exception also allows the communication to the public of the research outcome when such outcomes are expressed through new original works. In other words, the communication of protected materials resulting from computational research processes is permitted, provided that such results are included in an original publication, data collection or other original work.

The right of communication to the public was not contemplated in the original government draft; it was introduced in the last version of the article to accommodate the comments of the Joint Committees of the Senate and the Joint Committees of the Chamber, both highlighting the need to specify that the right of communication to the public concerns only the results of research, where expressed in new original works.

The beneficiaries of the TDM exception for scientific purposes are research organisations and cultural heritage institutions. Research organisations essentially reflect the definition offered by the directive. These are universities, including their libraries, research institutes or any other entity whose primary objective is to conduct scientific research activities or to conduct educational activities that include scientific research, which alternatively:

• operate on a non-profit basis or whose bylaws provide for the reinvestment of profits in scientific research activities, including in the form of public-private partnerships;
• or pursue a public interest purpose recognised by a European Union member state (Art. 70 ter, (4)LdA).

If commercial enterprises exercise a decisive influence, such as allowing access on a preferential basis to the results generated by scientific research activities (Art. 70 ter, (5) LdA), an organisation will not be considered a research organisation under this law. Cultural heritage institutions are defined broadly, including libraries, museums, and archives, as long as they are open to the public or accessible to the public, also those belonging to educational institutions, research organisations and public broadcasting bodies, as well as the institutes for the protection of film and sound heritage and the public broadcasting bodies (Art. 70 ter, (3)LdA).

The copies of works or other subject matter created need to be stored with an adequate level of protection and can be kept and used only for scientific research purposes, including the verification of research results (Art. 70 ter, (6)). Rightsholders are authorised to apply measures to ensure the safety and integrity of the networks and databases where the works or other subject materials are hosted (Art. 70 ter, (7) LdA). Such measures shall not go beyond what is necessary to achieve and can also be defined based on agreements between right holder’s associations, cultural heritage institutes and research organisations (Art. 70 ter (8) LdA). Such negotiations have not taken place so far.

The Italian lawmaker did not expressly contemplate any specific and fast procedure for cases where technical protection measures prevent a beneficiary from carrying out the permitted acts under both TDM exceptions. However, the law now recognises to the beneficiaries the right to extract a copy of the material protected by technological  measures in certain cases. Under Art. 70-sexies, LdA, beneficiaries of the TDM exception for scientific purposes (as well as the beneficiaries of the exception for digital and cross-border teaching activities exception) shall have the right to extract a copy of the protected material, when technological measures are applied based on agreements or on administrative procedures or judicial decisions. In order to benefit from this right, the person shall have lawful possession of copies of the protected material (or have had legal access to them), shall respect the conditions and the purposes provided for in the exception, and such extraction shall not conflict with the normal exploitation of the work or the other materials or cause an unjustified prejudice to the rights holders.

While the Italian lawmaker should be praised for introducing such a right, the Italian implementation still missed an opportunity to update the controversial and rarely applied negotiation and mediation procedures set forth in Art. 71 quinquies, (2) LdA (which transposed Art. 6(4) of the Infosoc Directive) to the actual needs of all beneficiaries of copyright exceptions. Furthermore, it should be noted that the law continues to reserve the application of the three-step test only to  the exceptions and limitations related to the use of protected materials available through on-demand services only, including under the new copyright exceptions, contrary to what is mandated by Art. 7(2) of the CDSM Directive.

Regarding contractual override protection, as stated by Art. 7(1) of the CDMS Directive, conflicting agreements with the TDM exception for scientific purposes are void.

Text and data mining for other purposes

The implementation of the exception for text and data mining for purposes beyond scientific research by any individual or organisation follows for the most part the text of Art. 4 of the CDSM Directive. Reproductions and extractions are allowed from works or other subject-matters available online or databases to which users have lawful access for TDM. The exception is subject to the possibility of rightsholders reserving their rights, but there is no clarification on how this reservation should be made. In this regard, the Italian law doesn’t mention the need​​ to express such reserves appropriately, such as through machine-readable standards when contents are made publicly available online.

No additional conditions or precisions are established on the retention and storing of copies of materials made to conduct text and data mining, nor on the measures that rights holders may take to ensure the safety and integrity of the networks and databases where the materials mined are hosted. Reproductions and extractions may be retained only for the time necessary for text and data mining as stated in  Art. 4 of the CDSM Directive.

Conclusion

In conclusion, the Italian legislator should be praised for going beyond what is required by art. 3 of the CDSM Directive. The Italian implementation allows the application of the TDM exception for scientific purposes to the reproduction for the extraction of texts and data or other subject matters (to which the beneficiaries have lawful access) and to the communication to the public of the research outcome when it is expressed through new original work. Therefore, in this respect, the Italian legislator exercised the option allowed by Art. 25 of the CDSM Directive to adopt a broader provision, compatible with the exceptions and limitations provided for in the InfoSoc and Database Directives.

For TDM for other purposes, the lawmaker reproduced the text of Art. 4 of the directive, not adding any extra elements to regulate, as written before, the exercise of the faculty to opt out by rights holders in a suitable and machine-readable by the computers. The Italian implementation also missed an opportunity to introduce provisions to allow the reproduction of material protected by technical measures that prevent beneficiaries from carrying out the permitted acts under the both TDM  exceptions. In sum, a total organic revision of the Italian copyright law would be desirable, which would allow for a better understanding and knowledge by not only the interpreter of the law, but also by rightsholders and users.

The post The Italian Implementation of the New EU Text and Data Mining Exceptions appeared first on COMMUNIA Association.

The proposed treaty is the result of an extensive consultation process with various stakeholders (including Communia), which culminated with its adoption at the 5th Global Congress on Intellectual Property and the Public Interest on September 27, 2018. Institutions and individuals are both welcome to endorse the treaty.

Minimum international standards

The proposed treaty aims to establish minimum standards for copyright exceptions for educational and research purposes, while at the same time affording countries significant flexibility in how to implement these obligations.

International standards in the field of copyright exceptions for education and research purposes are important for several reasons, including:

• Reducing inequalities in access to educational and research materials,
• Enabling cross-border education and research activities, and
• Introducing a balance between the private interests of copyright owners and public interests related to access to knowledge, science and education.

Copyright laws around the world treat educational works and practices differently, resulting in huge discrepancies in the way education can be provided, and oftentimes increasing the inequality in educational outcomes. Everyday activities, such as displaying a Powerpoint presentation or showing a Youtube video in class, are permitted in countries that have strong, well-drafted educational exceptions to copyright, but prohibited in countries with none or poorly designed education exceptions.

Depending on where they are located, educators may have the freedom to choose and use whichever materials they feel are most adequate for their instructional activities, or may need to be extremely careful when selecting those materials to avoid risking civil and criminal action for copyright infringement.

The fragmentation of copyright laws also creates an obstacle to the transmission of knowledge between two or more countries with different educational exceptions. A distance learning program or MOOC developed in one country but delivered in another may be subject to different educational exceptions—one exception might apply to the instructor while another to the participant. In addition, a simple email that is sent from a teacher in country A to a student in country B could be subject to different copyright rules.

As we have said in the past, the path to harmonising copyright laws across WIPO Member States has been remarkable from the perspective of authors and other beneficiaries of copyright. It is only fair that the Member States that benefit from sophisticated copyright exceptions and limitations allow the convergence of rules that protect and expand the interests of educators, learners and researches, through the adoption of baseline international standards for educational and research exceptions.

Building upon the WIPO SCCR work

The proposed treaty aims to advance the text-based work of the committee in the field of educational and research exceptions. Civil society advocates have built upon previous SCCR documents on copyright exceptions, and incorporated the concepts articulated in those documents into the treaty. A section-by-section analysis of TERA can be consulted here.

The greatest innovation of TERA is to focus on education and research purposes, and making the exceptions open to any uses by any would-be beneficiaries, provided that they are made for such purposes, instead of limiting the beneficiaries to formal educational and research institutions, as the previous texts suggested.

In June 2018, WIPO member states adopted the so-called Action Plans on Limitations and Exceptions Through SCCR/39 (2nd Meeting in 2019). An important element of the action plan is to conduct regional seminars to analyze the situation of libraries, archives and museums, as well as for education and research, and to identify “areas for action with respect to the limitations and exceptions regime”. We believe TERA could inform the discussions on exceptions and limitations that will take place in the regional seminars, especially those promoting future text-based work of the committee.

More voices are needed if we want to see substantial progress in this area. Member State delegations that support text-based work on the field of copyright exceptions and limitations, education stakeholders, and public interest advocates need to work together to make their voices heard, and push for productive action on these issues. Endorsing this treaty is a good first step for the members of civil society.

The post COMMUNIA endorses Treaty on Education and Research, and asks others to follow suit appeared first on COMMUNIA Association.

The minor tweaks to the exception for text and data mining offered in this recent draft—as well as the earlier changes suggested in the Maltese compromise proposal from 8 May —are inadequate to supporting research and innovation in the European digital single market.

Where the Commission’s original plan only permits “research organisations” to take advantage of the exception, the new Council’s compromise proposal would extend the beneficiaries to include “cultural heritage institutions.” At first glance this addition would seem welcome because it expands (albeit narrowly) to an additional beneficiary group. But this meager edit ignores the larger concern that citizens and  private sector organisations still will be excluded from the benefits of the exception. As we’ve argued, this is clearly not aligned with the goals of the reform to promote activity in the digital single market.

In addition, the Council compromise proposals do not change the problematic limitation that TDM may only be carried out strictly for “purposes of scientific research.” We’ve criticized the Commission’s short-sighted approach in only permitting TDM to apply to scientific research. Such a restraint will surely decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”.

We’ve been clear in our recommendation: a TDM exception should be able to be leveraged by anyone, for any purpose.

We’ve said that the draft Directive should be amended to ensure that they achieve the goal of facilitating research and innovation across all parts of society by permitting anyone to engage in text and data mining. This means removing the limitation on research organisations (and by extension—the Council’s proposed inclusion of cultural heritage institutions) as the few beneficiaries of the proposed exception. We also urged that the exception should allow text and data mining for any purpose. This means removing the limitation on scientific research as the only purpose allowed for under the proposed exception.

This line of reasoning has been echoed in the opinions from European Parliament’s IMCO and ITRE committees, and the draft report of the JURI committee, all of which support an expansive TDM exception that could be leveraged by entities beyond research organisations, and for purposes other than only scientific research.

And last week, COMMUNIA and 20 other organisations representing universities, technology startup companies, Internet services providers, libraries, scientific and research institutions, and non-profits, called on European lawmakers to stand up for the future of European research and innovation by expanding the exception for text and data mining. From the letter:

At a time when European leaders want to lead the “information revolution” and ensure that the Digital Single Market is a success, we ask MEPs to defend rather than harm European research and innovation.

However, the introduction of a TDM exception by the European Commission, and now supported by the new rapporteur, limited in scope, will lead to the exact opposite.

Public and private research in Europe, along with emerging jobs in big data will be slowed at precisely the moment when other countries, including China, Singapore, Australia and the United States, are eliminating barriers for entities that use TDM and take full advantage of the opportunities provided by the data economy.

Allowing a broad use of TDM by revising the exception does not create any economic harm: on the contrary, it will help grow the use of TDM, and grow the market for scientific publications, enabling the whole research community, both rights holders and the millions of TDM users, to generate opportunities from the power of data.

It’s a missed opportunity  that the Council’s compromise proposal doesn’t embrace a progressive TDM exception. Doing so could go a long way in helping Europe support new modes of research for non-traditional players, and promote technological innovation and financial investment in EU firms and projects.

The post New Estonian council compromise proposal: Another missed opportunity for TDM in Europe appeared first on COMMUNIA Association.

The Anne Frank Stichting announced plans to publish an edition of Anne Frank’s texts online after the presumed expiration of the copyright on January 1, 2016. In response, the Anne Frank Fonds sued the Stichting over what it considered unauthorised reproductions of Anne Frank’s writings. The reproductions had been made by the Stichting as part of its preparatory research for the on-line publication after the new year. Initially, this seemed to be an attempt by the Fonds to thwart or delay the Stichting’s plans for an online edition.

However, during the course of the legal arguments it became clear that under Dutch law (which governs uses made by the Stichting), Anne Frank’s original writings would not enter the public domain in 2016. This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright—in this case large parts of the original writings will only expire in 2037.

While this means that the Stichting had to shelve its plan to publish an online edition, the Fonds continued to press charges related to the reproductions (XML-TEI files) made by the Stichting in order to carry out its textual and historical research. The Stichting was sued alongside their research partner the Dutch Royal Academy of Science (KNAW). Both upheld the position that it did not require permission for making reproductions solely intended to enable its internal scholarship, claiming that copyright law should not be used to thwart scientific research.

On the 23rd of December the District Court of Amsterdam handed down its ruling in the case. After establishing that the writings of Anne Frank are indeed protected by copyright (and, in the Netherlands, will continue to be protected for the foreseeable future), the court also ruled on the legality of the research reproductions made by the Stichting.

While the court dismissed arguments that the creation and use of these reproductions were covered by a number of exceptions and limitations to copyright, the court did agree with the claim that the requirement to obtain permission from the rights holder for making such copies is in in conflict with the freedom of scientific research as established by article 13 of the Charter of the Fundamental Rights of the European Union. In its ruling (Dutch, translation mine) the district court argues (emphasis added):

From [the previous arguments] it follows that the creation of the XML-TEI file that has been made available to third parties constitutes an infringement of the copyright held by the [Anne Frank] Fonds. It needs to be judged if the circumstances of this particular act provide a reason to reject the demands made by the Fonds because this would, in the light of the principle of proportionality, put unreasonable restrictions on the freedom of scientific research. […]

It goes without saying that in order to carry out proper textual scientific research the researchers must have access to some copies of the texts that are being researched. Without these reproductions it is impossible to access the source materials which makes the research virtually impossible. This includes the XML-TEI file produced by the Huygens ING [Institute]. After all, this file has been created […] for the sole purpose to carry out scientific research.

The Fonds has only broadly stated that it does not have to tolerate everything that happens with the texts. Insofar as the Fonds tries to obtain control over what research should take place or not, this is not a right that is protected by copyright.

It is also clear that the infringement of the copyright of the Fonds taking place as part of the research does not extend beyond the provision of only a few reproductions of the works, and to a limited number of researchers directly involved in the research. The copyright infringement thus has minimal impact.

Under these circumstances, the court concludes that enforcement of the copyright by the Fonds is subordinate to the fundamental right of the Stichting et al on her freedom of scientific research.

Anyone who is familiar with the current discussion about the copyright status of text and data mining will quickly recognize that this case—which started as a dispute about the length of copyright protection—offers some valuable insights into the legal status of text and data mining in Europe.

The actions of the Stichting and the KNAW (creating a machine readable version of the text (the XML-TEI file)) are an excellent example of text mining. Research organisations and research libraries have long claimed that the making of reproductions of works that happens as part of the process of text and data mining should not require permission from the rights holders as long as the researchers have legal access to the works in question.

The court supports this line of reasoning by recognizing that requiring permission from the rights holders before machine readable reproductions can be made would make TDM-based research ‘virtually impossible’. In addition, by tying the issue of text and data mining to the freedom of scientific research, the court provides a strong normative justification for the rationale that TDM should not require the permission from rights holders.

Since text and data mining is one of the issues that will be dealt with during the upcoming modernization of the EU copyright rules, we hope that European lawmakers will pay close attention to the reasoning of the court in this case. As the Anne Frank Stichting and the KNAW rightly point out, copyright law should not be used to thwart scientific research. Such an outcome is unfortunately a very real danger, given the approach presented by the European Commission in December.

The post What the diary of Anne Frank can tell us about Text and Data mining appeared first on COMMUNIA Association.

One of the key principles recognized in the declaration is that intellectual property law does not regulate the flow of facts, data, and ideas–and that licenses and contract terms should not regulate or restrict how an individual may analyze or use data. To realize the massive, positive potential for data and content analysis to help solve major scientific, medical, and environmental challenges, it’s important that intellectual property laws–and private contracts–do not restrict practices such as text and data mining.

Our response to the EU copyright consultation suggests that the practice of text and data mining should be considered outside the purview of copyright altogether: “if text and data mining would be authorized by a copyright exception, it would constitute a de facto recognition that text and data mining are not legitimate usages. We believe that mining texts and data for facts is an activity that is not and should not be protected by copyright and therefore introducing a legislative solution that takes the form of an exception should be avoided.” Similarly, there have been several actions advocating that “The right to read should be the right to mine.”

In addition to supporting the notion that the right to read is the right to mine–free from additional copyright-like rights, license, or contractual arrangements–the declaration also suggests that if funding bodies are considering adopting open licensing mandates as a component of receiving grant funds, they should aim to adopt policies that champion a liberal licensing approach. Specifically the declaration states that research articles created with grant funds should be published in the global commons under a liberal license such as CC BY, and that research data should be shared in the worldwide public domain via the CC0 Public Domain Dedication.

The Hague Declaration is an important set of principles and recommended actions that can aid the speed and effectiveness of scholarly research and knowledge discovery today. You can read the LIBER press release here. To show your support, you can sign the declaration.

The post Hague Declaration calls for IP reform to support access to knowledge in the digital age appeared first on COMMUNIA Association.

Paul Keller, from our member organisation Kennisland, has written an opinion about the report. Paul writes that:

[the report] does make one thing very clear: at least in aggregate, broader and more flexible exceptions and limitations to copyright do not undermine the ability of rights holders to generate income from their rights. In addition, countries with more flexible systems fare much better where it comes to growth of their ICT sectors. In other words, adapting the EU copyright rules by making them less restrictive and more flexible will in all likelihood not result in the collapse of the creative industries in the EU. Instead, such a move can be expected to have a positive impact on the economy of the EU.

Paul’s opinion is available on the Kennisland blog. The report is available at Lisbon Council site.

The post Lisbon Council report shows economic value of flexible copyright appeared first on COMMUNIA Association.

In his report Hargreaves concluded that while it is highly desirable to introduce more open-ended flexibilities into UK copyright law, ‘significant difficulties would arise in any attempt to transpose US style Fair Use into European law.’ (Hargreaves, p.47). Instead of recommending the introduction of a Fair Use exception, Hargreaves looks at the benefits that a Fair Use exception provides and concludes that it is time to explore…

‘… with our EU partners a new mechanism in copyright law to create a built-in adaptability to future technologies which, by definition, cannot be foreseen in precise detail by today’s policy makers. This latter change will need to be made at EU level, as it does not fall within the current exceptions permitted under EU law. […] We therefore recommend below that the Government should press at EU level for the introduction of an exception allowing uses of a work enabled by technology which do not directly trade on the underlying creative and expressive purpose of the work (this has been referred to as “non-consumptive” use). (Hargreaves, p.47)

While Hugenholtz and Senftleben seem to embrace these conclusions, their study does not deal with introducing additional flexibilities into the European copyright system. Instead they have set out to explore existing room for more flexibility within the system. This system consists of the EU’s 2001 Information Society Directive (a.k.a ‘Copyright Directive), it’s 27 implementations into the national laws of the EU member states, and the WIPO internet treaties.

In their paper Hugenholtz and Senftleben argue that the current European copyright system provides ample room to create more flexible exceptions. According to them, member states seeking to provide more opportunities to users of copyright protected works are well advised to exploit these inherent flexibilities. Where the introduction of new exceptions at the EU level, as advocated by Hargreaves, would only come into effect after a multi-year legislative undertaking with an all but guaranteed outcome, working with existing flexibilities provides those member states who wish to introduce changes a much quicker route to achieve this objective.

So where are these existing but currently unused flexibilities? According to Hugenholtz and Senftleben they can be found in the way member states implement the Information Society Directive in their national laws. After showing the leeway awarded by the directive though a discussion of specific national implementations and relevant case law, they point out that:

The most flexible implementation of permissible EU exceptions, however, can be achieved by including literal copies of the prototypes in the Information Society Directive in national law. […] The norm inevitably remains semi-open because it can hardly empower judges to identify new use privileges on the mere basis of abstract criteria, such as those constituting the three-step test. Article 5 ISD contains an exhaustive enumeration of permissible exceptions. Without changes to the EU acquis, this closed catalogue cannot be reopened at the national level. Recalling several EU exception prototypes with flexible features that have been highlighted above, the envisioned semi- open provision, nonetheless, could take the following shape:

‘It does not constitute an infringement to use a work or other subject-matter for non-commercial scientific research or illustrations for teaching, for the reporting of current events, for criticism or review of material that has already been lawfully made available to the public, or quotations from such material serving comparable purposes, for caricature, parody or pastiche, or the incidental inclusion in other material, provided that such use does not conflict with a normal exploitation of the work or other subject-matter and does not unreasonably prejudice the legitimate interests of the rightholder.’

Further requirements to be found in the relevant provisions of Article 5 ISD, such as use ‘in accordance with fair practice’, use ‘to the extent required by the specific purpose’, or use ‘to the extent justified by the informatory purpose’ can be understood to be covered anyway by the elements taken from the three-step test. Otherwise, these additional requirements – being flexible themselves – could be added without changing the semi-open nature of the proposed provision. (Hugenholtz and Senftleben, p.17-18)

Combining the literal text of the Information Society Directive with the three-step test, which is usually perceived as a limitation of the scope of possible exceptions may, at first, sound like a rather strange recipe to increase flexibility. However Hugenholtz and Senftleben argue that this does not do justice to the nature of the three-step test:

In the context of the Information Society Directive, the reappearance of the three-step test in Article 10 WCT is even more important than the outlined initial understanding of the provision. […] The Agreed Statement Concerning Article 10 WCT, however, could hardly be more explicit with regard to the flexibility inherent in the international three-step test:

‘It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extent into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment. It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.’

This balanced Agreed Statement, allowing the extension of traditional and the development of new exceptions and limitations with regard to the digital environment, is the result of the deliberations at the 1996 WIPO Diplomatic Conference that led to the adoption of the WIPO Internet Treaties. […] The Agreed Statement Concerning Article 10 WCT is thus the outcome of an international debate in which the need to maintain an appropriate balance in copyright law has clearly been articulated. (Hugenholtz and Senftleben, p.22)

Armed with this view on the three-step test Hugenholtz and Senftleben arrive at their conclusion that there is room within the current European copyright system to provide a level of flexibility that is comparable with that provided by the US fair use doctrine:

A Member State desiring to take full advantage of all policy space available under the Information Society Directive, and thus maximize flexibilities available at the EU level, might achieve this by literal transposition of the Directive’s entire catalogue of exception prototypes into national law. In combination with the three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. […] In addition, the unharmonized status of the adaptation right would leave Member States free to provide for limitations and exceptions permitting, for instance, fair (i.e. non-commercial) transformative uses in the context of user-generated content. (Hugenholtz and Senftleben, p.29-30)

While they are probably right to point out that ‘initiatives to introduce flexibilities at the EU level […] could easily take ten years’, their conclusion that member states should focus their energies on national legislative changes that make use of the policy space identified in their paper is not convincing.

While the policy space described above does exist on paper, it clearly remains an extremely contested space when it comes to policy making. The arguments brought forward may be persuasive to policy makers and other actors who are seeking to introduce more flexibilities into the current copyright system, but will most certainly be ignored or disputed by those with contrary policy objectives.

To make matters worse, the approach suggested by Hugenholtz and Senftleben hinges on favorable implementation of the legislative framework by the courts. This not only introduces uncertainties, it is also highly questionable whether courts will indeed adopt the non-restrictive interpretations of both the Directive and the three-step test as they are presented by Hugenholtz and Senftleben in their study. As a result, the approach of establishing clearly identified positive norms on the EU level, as favored by Hargreaves, seems much better suited to re-balance copyright in the EU.

The main value of this study is how it shows that the need for more flexible limitations and exceptions for a digital environment was acknowledged at the very beginning of the process of adapting copyright to the reality of emerging digital networks. Unfortunately that initial recognition has lost a lot of ground under the relentless attack of copyright maximalists over the past 15 years.

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