What is important, the copyright exceptions do not break creative markets and don’t put creators out of business. On the contrary – which poet wouldn’t want her poems to be translated in class? Which architect wouldn’t want his building to become a landmark everybody recognizes? Such a massive spread of cultural tropes is possible through the exceptions we have presented: freedom of panorama in Portugal, parody in France, education in Estonia and quotation in Finland.

Download the Best Case Scenarios #fixcopyright poster

So what are the mechanisms and tricks that make exceptions great? Any copyright exception needs to balance legitimate interests of both the users and the rights holders. When that balance is achieved we can have more than 4 best case scenarios for copyright.

We have identified 6 magic ingredients that make copyright exceptions and limitations great. Here is how to mix them to #fixcopyright:

1. Balance copyright with the public interest

All copyright exceptions we featured have one crucial thing in common – they always negotiate the exclusive rights against an important public interest. Literally each use can strike that balance differently and no regulation can envision all life situations.

Freedom of expression includes quoting, documenting or criticizing somebody else’s work. Securing access to modern education is so important for societies that it is fundamental to use all sorts of copyrighted materials in class instruction, lectures, tests, research, etc. Public interest justifies the limitation of rights holders’ prerogatives. A good exception is grounded in a right that is a fundament of a free, democratic society.

2. Open up to all sorts of use

In our fast-changing world, devising regulation that works only for a certain type of use is pointless. We see that with copyright everyday: provisions that had worked when music was distributed on CDs are dysfunctional in the age of internet.

So if you want an exception to work, do not write it for today’s technology – use broad terms that let people reproduce, distribute, communicate and make works available to the public, as well as  transform or adapt in any way they see fit and by any means technology allows them to.

3. Include all kinds of users

In today’s culture it is hard to say who is a creator and who isn’t. The teaching process takes place in a classroom but it also includes online instruction, non-formal settings and peer-to-peer learning. These conditions are constantly evolving and new settings for creation and teaching become widely recognized.

So if you want your copyright limitation to be truly great, consider that the circle of users who can benefit from it is not limited to labels such as “photographer”, “teacher”, “blogger” or “educational institution”. Do not limit access to specific groups of people.

4. If you have to limit, focus on the purpose

Some exceptions are limited in their purpose, just like the Estonian educational exception. It is broad and includes virtually everybody so if there was no limitation on it, it would effectively erase the use of copyright.

If there’s a must, the clever way to calibrate an exception is to focus on its purpose – in Estonia the broad educational use is only possible if it illustrates teaching and the process of learning in general. Any use that cannot be justified by the purpose is not considered to be exempted.

5. Consider benefits of commercial use

Users can benefit commercially from a parody in France or from a movie shot in a public space in Portugal. Consider that today it is very hard to determine if the use is commercial or not. If people post their pictures or memes on social media, would it be recognized as a commercial use? After all, Facebook is a commercial entity that monetizes the activity of its users.

An excellent regulation is a result of a cost and feasibility analysis. Would it be at all possible to enforce the non-commercial prohibition? Or would the cost and futility of it prevail over the benefits? If the answer to the latter is yes, allow use with a commercial benefit.

6. Make the use free of charge

The point of a copyright limitation is to make it simple, if not intuitive, for users to benefit from its existence. This would not be the case if a user had to pay for quoting a book or taking a picture of beautiful surroundings. In fact, if you have to pay, you can hardly call it an exception.

Copyright should enable rights holders to profit from creations. A copyright limitation is an exceptional case, where both the significance of public interest and the intuitiveness of use limit the copyright. Society benefits from it and the culture is richer. Make the use free.

You’ve now mixed all the ingredients, so make exceptions mandatory across EU!

The more flexibility EU allows in transposing its regulation, the more the legal systems in member states vary. Harmonizing the copyright in general and the exceptions in particular is crucial if we want to turn the Digital Single Market into something more substantial than a catchy phrase.

In Europe we have no internal borders anymore, but there are borders in the European internet and between member states’ copyright systems. These should be brought down, and the EU is in a unique position to do it.

Exceptions are a right and not a favour!

The good news is that we have many great copyright exceptions ready in the InfoSoc directive and waiting to be marked as mandatory across Europe. The hard work is done, EU, you can #fixcopyright with one simple provision and make Europe a better place!

• Download the Best Case Scenarios #fixcopyright poster
• Download the Best case scenarios for copyright – full brochure
• Read more at https://communia-association.org/bcs-copyright
• Talk to us: @communia_eu @tenobre @a2na

Best Case Scenarios for Copyright is an initiative by COMMUNIA, presenting best examples of copyright exceptions and limitations found in national laws of member states of the European Union. We believe that, by harmonizing copyright exceptions and limitations across Europe, using as a model these best examples that are permitted within the EU law, the EU would reinforce users’ rights in access to culture and education.

The post How to #fixcopyright with a great copyright limitation? A recipe for lawmakers appeared first on COMMUNIA Association.

Within the Best Case Scenarios for Copyright series, we present France as the best example for parody. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Parody in France legal study. EU, it’s time to #fixcopyright!

Exception/Limitation: Parody
Country: France

What is a parody exception?

1. Rooted in ancient Greek, the term “parody” includes works of mockery, as well as quoting or referencing an older work in a modern interpretation of it. In France, parody implies adapting or borrowing from a work with the intention of having fun.
2. The exception is justified by freedom of expression.

How does it work?

1. All acts that are necessary to create a parody work are exempted – users can copy, perform, adapt and transform the protected work.
2. The resulting parody can be published, performed, made available online or otherwise used without infringing the rights to the original work.
3. All types of copyrighted works that are publicly available can be used for parody. Parody has also been recognized for trademarks.
4. Authors of works of parody are free to benefit from it commercially, as long as their goal is to provoke laughter and/or criticize (see “limits” point 2 below).
5. A parody can result in a work that is not original itself and not protected by copyright. It can also result in a protected work of a different genre (for example, a song can be a parody of a play, or an image can be a parody of song lyrics).
6. The creator of the parody is not obliged to credit the parodied work.

Who can use it?

Anyone can benefit from the parody exception: citizens, individual artists,  organizations, companies.

Is it free?

Yes, it is free. No remuneration is due to the authors or rights holders of the parodied work.

What are the limits to the parody exception?

1. Confusion between the original and its parody – it is possible to make a parody of an entire work as long as there is no risk the parody work would be confused with the original.
2. Goals different than the humorous intent – for example, advertising parodies are not exempted, and require authorization from the rights holder of the underlying work because the main goal is to sell products and not to make people laugh.
3. Moral rights and personality rights of the author – the parody work must not demean or degrade the original work, and must respect its author. It must balance the right to laugh and the rights of the author chosen as the target.

Economic and societal impact

The Treatment of Parodies under Copyright Law in Seven Jurisdictions study commissioned by the UK Intellectual Property Office in 2013 has shown a positive social and economic impact of the parody exception. Studies show no evidence that parody causes economic harm the parodied work. It has also shown that works of parody can promote creativity, especially online.

Examples of use

1. The French magazine “Charlie Hebdo” often bases its mockery on pop culture figures and topics, as well as widely-known characters such as Batman, or Asterix and Obelix.
2. The famous character Tintin has been given a parallel life full of adventures and ironic jokes on current geopolitical events.

Law

• Article L.122-5 of the French Code of Intellectual Property (Code de propriété intellectuelle) created by the law of 1 July 1992 (as last amended on 25 April 2016)
• The wording is similar to the 2001 InfoSoc Directive: when the work has been disclosed, the author may not prohibit “parody, pastiche and caricature, taking into account the rules of the genre”
• First introduced in 1957

Why we chose the French example?

Only a few countries have an explicit parody exception in their copyright laws. Where such exception does not exist, courts may permit parodies under freedom of expression and freedom of the arts. Germany, for example, permits parodies on the basis that adaptations are free, under certain conditions. Other countries exempt parodies if they constitute a new original work – that had been the case of the Netherlands before the InfoSoc Directive was transposed.

The problem with the above-mentioned approaches is that if the parody work does not meet the necessary conditions to be considered an adaptation or a new work, it will infringe on the exclusive rights of the author, including the right of reproduction. That does not happen in the EU member states that have implemented the parody exception as provided in the InfoSoc Directive, since the exception applies to all the rights: reproduction, communication to the public, making available to the public, and distribution.

The French parody exception served as a model to the EU parody exception. France has a long parody tradition, with plenty of examples of commercial and non-commercial parodic uses of copyrighted works found in the national case law. The key criteria developed by French courts for assessing whether a certain parody work is permitted or not, seem to be aligned with the recent European Court of Justice decision on the EU parody exception.

Further reference

For details on how the parody exception functions in France please see the Best Case Scenario for Copyright – Parody in France analysis prepared by Alexandra Giannopoulou on behalf of the Communia Association.

• Download the Parody Factsheet
• Download the Best Case Scenario for Copyright – Parody in France
• Download the Best case scenarios for copyright – full brochure

Read more at https://communia-association.org/bcs-copyright

Talk to us about Best Case Scenarios for Copyright: @communia_eu @tenobre @a2na

Best Case Scenarios for Copyright is an initiative by COMMUNIA, presenting best examples of copyright exceptions and limitations found in national laws of member states of the European Union. We believe that, by harmonizing copyright exceptions and limitations across Europe, using as a model these best examples that are permitted within the EU law, the EU would reinforce users’ rights in access to culture and education.

The post EU, #fixcopyright and adopt the parody exception across Europe appeared first on COMMUNIA Association.