Public Policy Privileges

A substantial body of copyright infringement defences is primarily available to institutional users, such as educational establishments, libraries, and archives. In light of the advent of the Internet and mass digitization, the availability of defences has been enlarged through a set of legislative instruments, such as the Orphan Works Directive and the Directive on Copyright in the Digital Single Market. Public policy privileges are meant to make allowances for modern methods of teaching provision, such as online courses, distance learning, and cross-border education programmes, as well as exempt from infringement new methods of carrying out research, such as text mining and data analytics, and enable value extraction from the plethora of works that are currently out of print. Although the policy reason behind the expansion of available defences has been the promotion of growth in the educational and cultural sector, there is a strong public interest underpinning the very presence of these exceptions in the statute. This has to do with the promotion of a rigorous public domain, whereby certain works shall be made more accessible for users to use and re-use. Subject to examination in this chapter is the breadth of these permissible activities and their ability to accommodate modern online services, including also the defences available for uses made by public administration.

Speech Entitlements

A number of copyright exceptions and limitations aim to promote the production of new copyright works and new authorship, and the protection of the public interest in gaining access to information and knowledge embodied in copyright-protected works. Most of these exceptions are premised on a fundamental human rights justification, such as freedom of speech or freedom of the press, or the right to access protected works without discrimination on grounds of disability. These include, for instance, reproduction by the press for the reporting of current events, quotations for criticism or review, and uses for the purpose of caricature, parody, or pastiche. They also include exceptions and limitations available to persons who are blind, visually impaired, or otherwise print-disabled. Although these exceptions and limitations are express manifestations of fundamental human rights, their scope remains relatively narrow and their legal nature and status against contractual overridability is not settled. Indeed, the permissibility of the relevant activities is subject to a number of internal limitations that may not work well in light of modern uses of materials in the online context. These include purpose limitations, such as the requirement that some uses ought to be non-commercial, scope limits (e.g. the doctrinal requirement that parodies have to be an expression of humour and mockery to be lawful), or restrictive principles that are inherent within copyright, like attribution to the source of the original work.

Conclusion

This chapter offers a synopsis of the work, explaining how the taxonomic project carried out in this book offers a holistic account of the defensive rules available to attack allegations of copyright infringement, adds to the debate on the breadth of permissible uses under EU copyright, and contributes both positivist and normative insights that could inform law and policy making. It also outlines certain key principles that can discipline our thinking towards more effective defensive rules with regard to the achievement of policy objectives such as innovation and business growth, and argues towards broader, more flexible, and stronger copyright defences.

External Defences

Some defences are available on grounds that are extraneous to copyright and are based either on other bodies of law, such as competition law or e-commerce protection, or on general legal principles. These include, for instance, defences available to Internet service providers for infringements carried out by their users, including defences for hosting, caching, and ‘mere conduit’. Others are available on the grounds of competition law, such as refusal to license or abuse of dominant position, which could have a legal basis of application—inter alia—in certain mass digital activities of online services. Other available defences fall under general legal principles that can be invoked in cases where copyright exceptions do not cover an activity for which there is a principle-based justification for the particular conduct. Such a justification could be the public interest or the doctrine of the ‘abuse of right’. There are also a number of uses that can be permitted on grounds of benign infringement on the basis of the ‘innocuous use’ doctrine. Unlike other defences to copyright, these defensive rules represent instances where copyright may be subject to limitations as a result of its encounter with other legal orders. Such instances have either not been institutionalized within copyright law, such as speech entitlements or public policy privileges, or may have been partially included within it while offering principle-based explanations for acts of copyright infringement on the basis of legal grounds found in other areas of law or broader legal principles. These defences are an essential component to the understanding of the scope of permissible copyright use on the Internet as they can be extremely relevant in cases which involve online services and business models, such as hosting services, and online content use more broadly.

Remunerated Exceptions

Under EU copyright, certain permitted uses are subject to the requirement that the rightsholders shall be fairly compensated. These ‘permitted-but-paid’ uses include private copying, reprography, and the reproduction of broadcasts that are made by social institutions pursuing non-commercial purposes. A number of questions arise with regard to the concept of fair compensation as a condition for the application of said exceptions, some of which have been discussed in the Court of Justice. Still, uncertainty remains regarding the way in which the requirement of fair compensation has been implemented by the various Member States, the notoriously vague and variably interpreted concept of harm on which fair compensation is premised, and the impact of compensation on the legal nature of uses. This has an impact on how the relevant remunerated exceptions are understood in terms of their legal nature: are they statutory licenses, legitimate entitlements of the rightsholders to compensation, or fully fledged rights of the users who have actually paid for their entitlement to a specific permitted use? Answers to questions like this one are becoming more pressing in the online context where the concept of harm could take unprecedented dimensions, especially with regard to private copying.

Scope Limitations

Copyright is not infringed in instances where the defendant’s activity falls outside the scope of exclusive rights. This is likely to be the case when the factual background of an alleged infringement does not meet the statutory prerequisites of a restricted act, for instance, when taking from an original work has not been such to amount to an act reserved by copyright, and hence falls beyond the scope of exclusive rights. As the Court of Justice of the European Union has affirmed in numerous cases, copyright protection is not absolute and exclusive rights are subject to a variety of internal limits that can serve as the basis of defensive claims in a practical sense. For instance, the court has indicated that exclusive rights are subject to internal scope limitations, some of which are relevant in the context of new technological uses. Hyperlinks, for example, do not infringe copyright when they are not addressed to a ‘new’ public, namely an audience that the rightsholders did not have in mind while making the work available online. Another example is the exhaustion principle, according to which the first authorized sale of content exhausts the authorial entitlement to further distributions. This principle is available in the online context only in relation to the resale of software, and this hinders innovative activity through the creation of electronic marketplaces for digital goods. Subject to examination in this chapter are the statutory and doctrinal limitations that inherently limit the scope of rights and remain outside the spectrum of proprietary entitlements.

Implicitly Authorized Uses

When combatting allegations of copyright infringement, the defendant can argue that the copyright holder authorized the activity at issue, either expressly or implicitly. Exclusive rights under copyright have a common constituent: they represent activities that the copyright holder can authorize or prohibit, authorization being necessary to avoid liability for infringement. Authorization from the copyright holder may be explicit and not raise interpretative difficulties, or it may be implied. The doctrine of implied consent has not received harmonization at EU level but can be found in national laws with regard to interpreting a contractual relationship or conduct. Written agreements may include implied contractual terms and in this context, the implied license doctrine is viewed as a ramification of contract law. But implied authorization may be assumed even in the absence of an agreement or prior communication, where the conduct of the copyright holder gives the impression that a particular activity is permitted. This understanding of implied consent can be traced to German jurisprudence and a body of recent cases that have affirmed the existence of implied authorization where copyright holders did not signify their refusal to consent to a specific activity e.g. by not enacting access control mechanisms in their online content. The judicially created doctrine of ‘implied consent’ is crucial to the functioning of essential Internet facilities such as search engines. This chapter discusses the scope of this doctrine, its applicability to other Internet services, its potential to serve as a defensive rule, and the way in which Svensson can be read as introducing an implied consent defence into EU copyright law.

Transient Uses and Temporary Copying

This chapter discusses defences that exempt certain activities from infringement on the basis of their transient or incidental character. These tend to be of paramount importance in cases of electronic communications and, more specifically, on the Internet as a result of the very nature and function of online networks. The exception available for temporary copying, for instance, which features in Article 5(1) of the Information Society Directive, has specifically been drafted with a view to covering online activities, such as caching and browsing, that enhance the efficiency of the Internet. Subject to discussion is the temporary copying exception in its broader contextual framework, including the relevant statutory provisions and case law, such as Infopaq I and II, Football Association Premier League, Meltwater, and Filmspeler decisions. It is argued that although Article 5(1) of the Information Society Directive takes, organically, the form of a copyright exception, the relevant provision should be better understood to be setting a scope limitation on the reproduction right and an exemption from copyright infringement.

Introduction

The fourth industrial revolution has emerged through the advancement of new technologies, innovative services, and modern business models, which often rely on the use and re-use of copyright-protected content. Although having the potential to enhance public welfare, these technologies and services challenge the limits of copyright law, especially in the European Union where the approach to defensive rules lacks flexibility. Under EU copyright law, exclusive rights are drafted in broad terms and with a high degree of generality, whereas the so-called exceptions and limitations to copyright are narrowly drafted and strictly interpreted, with the result that the breadth of permissible use is rather narrow. Because the fourth industrial revolution promises innovation and business growth—stated objectives of EU copyright—it invites an examination of defensive rules as a whole. The book adopts a holistic approach in its exploration of the limits of permissibility under EU copyright, including legislatively mentioned exceptions and limitations, doctrinal principles, and rules external to copyright, with a view to unveiling possible gaps and overlaps, offering a novel classification of defensive rules, and evaluating the adaptability of the law towards technological change. In this light, the work attempts to offer a measure of conceptual organization for defences to copyright infringement that may foster the development of a fresh understanding on how defensive rules against copyright infringement operate as a system; how they unveil their normative force; where instances of gaps or overlaps exist between defences; and how defences should be developed in light of future law reform or possible interpretative expansion.

Subsistence Negating Claims

One of the main defences against allegations of copyright infringement is that no infringement took place because copyright does not subsist in the subject matter at issue. This could be because the subject matter is not a ‘work’ in the copyright sense, or is not protected by copyright because it is not original or fixed in a tangible form. Digital technologies exacerbate this controversy. For instance, does a copy of a public domain image qualify for a new copyright by virtue of its digital processing (using, for instance, a raster graphics editor such as Photoshop)? Does a short sentence such as a tweet attract copyright and can strings of characters such as hashtags and hyperlinks be ‘copyright works’ in their own right? What about works created through artificial intelligence such as a search engine’s automatic translations? Or cases where more than one author contributes facts or pieces of information to a work that is subject to constant modification such as Wikipedia entries? The rationale for excluding subject matter from protection rests on the principle that mere ideas, facts, or commonplace elements should remain free to use, ensuring a robust public domain. In this regard, requesting the negation of copyright subsistence can serve as a defence against allegations for infringement and, in a broader sense, it can also help innovation and creativity through the re-use of subject matter that does not attract copyright protection. This chapter examines the way in which a negation of copyright subsistence can form a defence against allegations of infringement by making specific references to new technological uses. Significant reference is made to the doctrinal interpretation of the concepts ‘work’ and ‘originality’ as developed by the Court of Justice of the European Union and the national courts of EU Member States, and the way in which these doctrines impact on the scope of permissible use.