In the course of the debates on the anti-piracy-agreement ACTA, the discussion about copyright within the digital society hit new dimensions. The debate about reforms, condensing parallel to this, is still laking a scientific foundation in several ways. As a consequence a series of questions arises, which require scientific studies as well as political ones: How can copyright be brought in to consonance with new digital user practices? Is the US-Fair-Use-Principle superior to the European Barrier System? What can be learned from the Fair Use in the USA with regards to the European copyright?
These questions were the focus in the workshops “Fair Use in Europe? State of the research and open questions” that took place on May 7th 2012 at the stiftung neue verantwortung organised by Jeanette Hofmann, one of the directors of the Alexander von Humboldt Institute for Internet and Society and Leonhard Dobusch, Post-doc at the Free University of Berlin. As one of the speakers Pamela Samuelson, Professor of law and information management at the Berkeley Law School & School of Information, University of California, one of the most recognised researchers in the field of intellectual property law was opening the workshop.
Above all Samuelson championed two thesises within her presentation: Firstly, fastly growing changes in the field of digitalisation and Internet demand for more flexible regulations than those of the rigid system of copyright exceptions and barriers of the EU guidelines for copyright. By showing examples like Googles Ngram-Search or the Wayback-Machine, Samuelson illustrated how the Fair-Use-Model of the US-Copyright enables or at least furthers the development of new technologies and contributes to the development of new markets. Especially with regards to the economy, the Fair-Use-clause can be seen as an advantage as it is more open to innovation than the European barrier catalogue.
Secondly, Samuelson advised that an approach towards the Fair-Use-Model is not connected with a renouncement of specific barrier regulations. These could, at the points where they work well, continue to secure the stability of the law. In single cases the barrier regulation can be preferred over the Fair-Use-Principle. In order to avoid the sometimes-feared legal uncertentainty in case of an opening of the barrier model, Samuelson called to collect and process illustrative cases comparable to those of the American Law Institute.
Samuelsons explanations were based on the article “Unbundling Fair Uses”, which published over 300 decisions about the Fair-Use-clause, analysed and categorised these. Generally this analysis shows that the US-American jurisdiction concerning Fair-Use is much more consistent and can be considered more predictable then generally assumed.
In this context the diversity of arguments for Fair-Use within the US jurisdiction, which ranges from the implicit agreement of the author (understood as an ideal type of an author), to behavioral theory (Fair-Use as a compensation for the warranty of copyright) and to the dominant reasoning, which sees Fair-Use as a promoter of constitutionally guaranteed legal interests, such as freedom of speech.
Within the discussion the copyright-lawyer Till Jäger pointed out, that the problem for the adoption of Fair-Use in Europe would not be the legal certainty but the different interpretations of Fairness within the European Community. Matthias Spielkamp from insights.info made a remark on the fact that the adoption of Fair Use in Europe is seen as a reduction of author rights. Samuelson contradicted this by pointing out that the cases of Fair-Use she worked on revealed an empowerment of the authors, who want to create something new by using existing pieces of work.
Ingolf Pernice, Professor for public law, international and European law at the Humboldt Universität Berlin and director of the Alexander von Humboldt Institute for Internet and Society gave a cause for the fact that the adoption of the Fair-Use-Principle in Europe may also be realised in a more flexible construction of the existing barrier catalogue.
Thomas Dreier, Professor at the Centre for applied law of the KIT, pointed out that the combination of the barrier right and the salary law does not exist in this form within the US-Fair-Use-Model. These are circumstances that should be taken into account for the process of creating a more flexible European barrier catalogue.
Find a loose protocol of the workshop here.