Department of Law
Spring Term 2019
Master Programme in Intellectual Property Law
Master’s Thesis 30 ECTS
User-generated content and Copyright
Dilemma in Web 2.0 Era
Should the Specific Exception be introduced in The EU?
Abstract
It is undeniable that internet nowadays is part of our life and community. Internet opens door for expression of ideas and opinions which can both be given and taken freely. Moreover, with the rise of the new internet model, Web 2.0, the platform becomes wider and more interactive which has an effect on the copyright aspect all over the world. User-generated content was soon born as a result of Web 2.0 and caused unsolvable legal issues in the copyright regime due to its transformative nature which acts in contrary to the exclusive right of the author.
Table of content
1. Introduction 6
1.1 Background and Purpose 6
1.2 Method and Materials 7
1.3 Delimitations 8
1.4 Structure 8
2. Digital era and User-generated content 9
2.1 Digital society and the rise of Web 2.0 9
2.2 What is user-generated content? 12
2.3 The role of UGC in current society 13
2.4 Defining UGC issue in EU copyright context 14
3. UGC and Copyright in EU 17
3.1 Source of law and scope of protection 17
3.2 Reproduction right in the EU 18
3.3 Adaptation and derivative work in the EU 21
3.4 Transformative work within the EU 23
3.5 Exceptions and limitations 26
3.5.1 Three-step test 31
3.5.2 How about implementing U.S. Fair use? 33
3.6 New provision in Directive on Copyright in the 34 Digital Single Market
4. Copyright and human rights 36
4.1 Freedom of expression 36
4.2 Relationship between freedom of expression and UGC 38
5. Economic view 40
6. User-generated content and copyright law in Thailand 42
6.1 UGC Phenomena in Thailand 42
6.2 Thai Copyright system 44
6.3 How Thai copyright law copes with UGC issue 45
7. Crafting the possible solution towards transformative work 49
7.1 Emphasizing users’ right 49
7.2 Canadian specific exception for UGC 51
8. Conclusion 55
Table of abbreviations
CJEU Court of Justice of European Union
DMCA Digital Millennium Copyright Act
DRM Digital Rights Management
ECD E-commerce Directive
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ICRC Irish Copyright Review Committee
ISP Internet service provider
IPR Intellectual property rights
InfoSoc Directive Copyright in the Information Society Directive
OECD Organization for Economic Co-operation and
development
P2P Peer-to-Peer
RSS Really simple syndication or Rich site summary
TRIPS The Agreement on Trade-Related Aspects of
Intellectual Property Rights
UDHR The Universal Declaration of Human Rights
UGC User-generated content
WIPO World Intellectual Property Organization
WCT WIPO Copyright Treaty
1.Introduction
1.1 Background and purpose
The fact that copyright law mainly focuses on the protection of author’s exclusive right without giving much attention to the users’ right explicitly affects user-generated content which is the user-based work that contains the pre-existing material from previous work and is likely to be considered an infringement according to the EU copyright law. Berne Convention provides authors to have the exclusive right to the reproduction of their work and gives too broad scope in interpretation followed by InfoSoc Directive which provides the similar provision for the exclusive right of the author. However, Berne Convention also grants the exception and limitation for the exclusive rights by providing ‘three-step test’ at least to set the limitation to the broad scope of reproduction right while InfoSoc directive has a set list of exceptions that Member States can choose as they see fit to their national law.
While there are fruitful exceptions such as incidental use, parody, private use and quotation that might be the possible way out for the transformative and adaptive nature of UGC, but it seems not enough as the list is far too narrow and is not practical when it comes into play with the case due to the fact that UGC is not just an adaptation of the original work but also has its own unique nature that has to be further explored. Factors such as commercial aspect and its transformative use has to be taken into an account which requires specific exception rather than just relying on the existing ones from the Directive.
It is worth exploring the new approach to the UGC of Canadian
Copyright Law that has just introduced its latest development on the its legal system touching upon the semi-open fair dealing exception. In addition, users’ right has been recognized and given attention broadly in the system unlike the author-based protection in the EU copyright system.
The aim of this paper is to seek the possible way to give breathing space for the transformative work in EU copyright law. It will investigate various legal approaches to transformative use namely Canadian Modernization Act and its support on the users’ right touching partly upon USA fair use in order to find the best solutions to the issue at hand.
1.2 Method and Materials
To start with, this thesis is using a de lege ferenda approach to the subject matter. To achieve the aforementioned purpose, this thesis will be based on various copyright law namely the EU copyright law, Thai copyright law,
Canadian Copyright law and touches upon US copyright law in the scope of fair use. The approach is to investigate, examine and analysis each legal approaches for the UGC and make a comparison to find the best solution for the subject matter. Several EU case law will also be investigated and analyzed in this paper although there are not much of a case law regarding UGC currently in the EU.
1.3 Delimitations
The discussion will be focused mainly on the creative work that during the process of making utilize the pre-existing copyrighted materials or borrow substantial part of the pre-existing material. It will mainly look into the process and effort that has been put into creating the new work while it will not focus on simply the adaptation of the work such as translation, minor alteration,
arrangement and adjustment. This thesis will not include the whole aspect of U.S. fair use but will partly mention and discuss the differences of the doctrine and the EU three-step test. Regarding the discussion of the exception and limitation in the EU, this paper will focus on some of the exceptions such as quotation and parody exception while it will not explore the topic of private copying and its remuneration aspect. The relationship between the right holder and intermediaries and intermediaries’ liability as well as DRM will be left out of this discussion. Lastly, the contractual aspect such as licensing system, will not be given as the priority of this thesis since its main purpose is to find the breathing space for the specific exception for transformative use of UGC without having to deal with the licensing system which is only the end result. 1.4 Structure
This thesis is divided into five parts, starting with part one, the
2. Digital era and User-generated content 2.1 Digital society and the rise of Web2.0
As we stepped into the digital era and internet world, the way of information sharing becomes easier and somewhat more convenient.
Information flows fast like a speed of light as a result of the development of high speed technology. Internet allows users to give and take information freely anytime and anywhere with almost no limitation. In additional, with the arrival of Web 2.0, which is the current state of online technology that allows more interaction and collaboration between online users, communication moves forward rapidly.1 Basically, Web 2.0 provides greater collaboration among internet users than the original world wide web as it allows users to create community of their own and provides more interactive platforms. Moreover, its social nature in collaboration with “Nomadicity”2, enables users to connect from wherever they are by their smartphones, tablets and other devices.3
The foundation components of Web2.0 are the advances enabled by Ajax4 and other applications such as RSS5 that allows websites to communicate with the browser behind the scenes without human interaction and also makes it easy for the website host to stay connected with the audience in the effective
1 Ashraf Darwish, “The impact of the New Web 2.0 Technologies in Communication, Development, and Revolutions of Societies”, Journal of Advances in Information Technology, Vol. 2, No. 4, November 2011.
2 According to Macmillan Dictionary, the term ‘Nomadicity’ is the ability to access platforms and compute data from various types of devices.
3 See https://jayijai18.wordpress.com/article-3/ (last access on May 26, 2019)
4 Ajax stands for Asynchronous JavaScript and XML. It’s a type of programming made popular in 2005 by Google (with Google Suggest) which is a new way to use existing standards and creating interactive web applications. With Ajax, it provides better, faster, and more user-friendly web applications. (definition from www.3rdeye.co.uk)
and fast way.6 The main function is its design to make information sharing possible for people in general, not only ‘professional’ users but also ‘amateur’ users.
Actually the term Web 2.0 has not been so clear and precise. Tim
O’Reilly, founder of O’Reilly Media has given the first logical definition of the term in 2004 as follows;
“Web 2.0 is the network as platform, spanning all connected devices; Web 2.0 application are those that make the most of the intrinsic advantages of that platform: delivering software as a continually-updated service that gets better the more people use it, consuming and remixing data from multiple sources, including individual users, while providing their own data and services in a form that allows remixing by others, creating network effects through an “architecture of participation,” and going beyond the page metaphor of Web 1.0 to deliver rich user experiences.”7
With the new model, many companies use the interaction ability of Web 2.0 as a tool for enhancing their business. For example, Amazon allows visitors to create account on their site and provide space for customer to submit reviews to boost the sales.8 From doing that, a lot of companies can provide better
service and build customer loyalty.
6 Dan J. Kim, Kwok-Bun Yue, Sharon Perkins Hall, Tracy Gates, “Global Diffusion of the Internet XV: Web 2.0 Technologies, Principles, and Applications: A conceptual Framework from Technology Push and Demand Pull Perspective”, Communications of the Association for Information Systems, Volume 24, Number 1, Article 38, 6-1-2009.
7 Tim O’Reilly and John Battelle answers the question of “What’s next for Web 2.0?” in Web Squared: Web 2.0 Five Years On in October 2009.
Well-known social media sites that use this Web 2.0 model are for instance, Facebook, Instagram, Flickr, Pinterest, Myspace, Reddit, Digg etc. Website Mashups is one of the applications recognized in Web 2.0 which refers to web application that combines content from variety sources.9 It is originated in the music world where two or more songs are mixed together to create a new one. The example of website mashups is for instance, Youtube, Ebay, Yahoo, etc. Recently, Youtube is considered the biggest video online platform that has over billions of users that allows users to post user-generated videos and make revenue from them.
The change of this internet model can result in many ways negatively and positively. It means that information is more readily available than before. The old method of information control is dying and replaced by the new one which is quite loose. There is controversy rose from the existence of Web 2.0 which is still problematic and difficult to solve. Some critics claimed Web 2.0 makes it too easy for average person to create online content, which can impact credibility, ethics and even legality of web content.10 Andrew Keen, a British-American entrepreneur and Internet critic opposed the idea of this self-publishing and blogging and called it “digital narcissism”. He thinks the main harm is the devaluation of professionally produced content and the idealization of the amateur. He’s also against the idea of free content and prefers the idea of people having to pay for their content instead.11
9 See https://www.woodst.com/web-design-development/what-is-web-2-0-and-what-does-it-mean-for-you/ (last access on May 26, 2019)
10 See Http://whaits.techtarget.com/definition/Web-2--or-Web- Margaret Rouse, “Web 2.0” (Last access on May 8, 2019)
11 See https://www.techradar.com/news/internet/web/interview-web-2-0-critic-andrew-keen-131068 (Magazine Team (PCAnswers), “Interview: Web 2.0 critic Andrew Keen”,
2.2 What is User-generated content?
User-generated content12 or in the simpler term ‘consumer-generated content’, basically refers to various type of information uploaded or posted by the users or unpaid contributors. It refers to videos, posts, comments, images, which are available in public for any users.13 OECD has given a definition as “i.) content made publicly available over the Internet, ii.) which reflects a certain amount of creative efforts, and iii.) which is created outside of
professional routines and practices”14 UGC can come in three different forms:
1. Individual textual, audio, image, video, and multimedia productions that are distributed online through software platforms such as blogs,
podcasting repositories, Flickr, Twitter, YouTube, and citizen journalism sites;
2. Software modifications or applications that are written by individuals to operate within or augment specific previously existing datasets or
hardware or software platforms (e.g., iPhone applications or ‘apps’, utilities that manipulate publicly available data sets, game or virtual world modifications); and,
12 According to Techopedia, the terms “User-generated content” means any digital that is produced and shared by end users of an online service or website. This includes any content that is shared or produced by users that are members or subscribers of the service, but it is not produced by the website or service itself. User-generated content is also known as consumer-generated media(CGM) or conversational media.
13 See https://www.tintup.com/blog/user-generated-content-definition/ (last access on May 26, 2019)
14 http://www.oecd.org/internet/ieconomy/38393115.pdf (OECD. (2007). Participative Web: User-created Content. Retrieved April 18, 2016.) (last access on May 26, 2019)
3. Formal or informal consortia that collaboratively produce and distribute UGC, including open source software (OSS), such as the Linux or Apache, and wikis, such as Wikipedia.15
The term “user” can be very broad where it is not limited to professional blogger or author but also includes amateur writers, bloggers or creators.
Frankly, anyone can be “user” in this term and create anything they want without any high qualifications. The term “generated” refers to the act of creating copying or uploading online material and the term “content” refers to creative work as understood in copyright law, or any expression of human creativity.16
2.3 The role of UGC in current society
There are many reasons for UGC to exist. To begin with, many companies use UGC to boost their business by allowing customers to post comment or create contents on their sites. Some online fashion sites allow customers to post pictures of their products to boost the sales. In another way, it can be said that UGC is another way of the marketing strategy. By having opportunity to publish anything easily by one tap with your fingertips can do a lot without having to hire any marketers. As a result, companies can gain more audiences and attract more advertisements on their sites. The fact that the content is created by users means the content is more authentic and real to the eye of audience, moreover it brings audience together and creates their own community. According to Neilsen17, 92% of users trust user-generated video on Youtube and engage more than their traditional television. Therefore, anyone
15 Pamela J. McKenzie, Jacquelyn Burkell, Lola Wong, Caroline Whippey, Samuel E. Trosow, and Michael McNally, “User-genereated online content 1: Overview, current state and context”, Volume 17, Number 6-4 June 2012.
16 Andrea Giulia Monteleone, “User-generated-content and copyright: The European Union Approach”, Lund University.
can be famous as long as they post interesting content online and anyone can be an influencer by just creating content online without the help of the talent
company anymore. Recently, Instagram just came up with new tool called “insight”18 that can monitor the the audience behavior towards individual
business account. This function allows the owner of the account to keep track of audience engagement and helps encouraging more UGC post on Instagram and can somewhat predict the increase in the online content.
However, UGC can be both commercial and non-commercial depends on the purpose each content serves which is the tough task to evaluate and can lead to legal complications, particularly copyright issue. The possible way to let UGC circling in our society is to find the balance between the authors rights and users’ right as much as possible. To sum up, we can’t deny the fact that UGC also important socially and economically as it encourages creativity and
innovation. Imagine life without social media and interesting content as well as empowering videos, the society and economy will not be able to grow
efficiently.
2.4 Defining UGC issue in EU copyright context
In light of UGC nature, it is arguable that the problem of reproduction right infringement has been raised and the effective and clear solution to the problem has not been put into place yet. As a result of the unsolved copyright issue regarding the exception and limitation to the reproduction right, private ordering mechanism can get into the way of UGC such as Technological
18 See https://help.instagram.com/1533933820244654 (Instagram insights help you learn more about your followers and the people interacting with your business on Instagram. For example, you’ll find insights such as gender, age range and location. You can also see which posts and stories your audience sees and engages with the most. Insights and metrics about our account include paid activity as well. Reach, account reached, impressions, and
Protection Mechanism (TPMs)19 including Digital Rights Management
(DRM)20 software, or legal devices such as licensing agreements and End-user Licensing Agreements (EULA)21.Contractual terms22 can be put into use to restrict uses of copyrighted material preventing creators from accessing and using pre-existing materials that would be deemed to be the rightful use under some exceptions and limitations23 The method like blocking system and
filtering has been put into place to deal with the infringing content online. As a result, it can be contrast to the freedom of expression.
Not to mention the major barrier of Copyright laws as well as global copyright treaties including the Berne Convention, the agreement on trade related aspects of intellectual property rights(TRIPS), and the world intellectual property organization (WIPO) since transformative work based on existing work may risk copyright infringement according to the Berne Convention. However, EU does not seem to neglect the problem as the EU Commission published the communication so called “Content in the digital single market” in December 2012 with the purpose of finding the possible and efficient solutions to copyright related practices in the digital era. The commission seems to focus on licensing method and regards this method as the best solution to the digital context24 followed by the project called “Licences for Europe”25
19 Such as encryption and other mechanisms to control unauthorized copying, transmission and use of their products.
20 According to Fact sheet: Digital rights management and have to do: Technical Protection Measures, DRM technologies try to control the use, modification, and distribution of copyrighted works (such as software and multimedia content), as well as systems within devices that enforce these policies.
21 EULA is the contract between the licensor and purchaser establishing the purchaser’s right to use a software.
22 Such as Creative commons.
23http://www.oecd.org/internet/ieconomy/38393115.pdf OECD. (2007). Participative Web: User-created Content. Retrieved April 18, 2016.
24 See Brussels, 18.12.2012 COM (2012) 789 final.
For the background, the EU has not developed ‘fair use’ doctrine like in U.S. which has been given quite a breathing space for UGC and transformative work and fair dealing has not been certain and harmonized in the EU. The only exceptions and limitations that we could see in the EU copyright legislation is in InfoSoc Directive and Berne convention. To be frank, the solution to the
copyright issue of UGC is still vague and uncertain. As the definition of UGC is not yet harmonized through the European Union countries, the situation is
becoming more complicated. There are several cases in EU that is still raising some questions towards the copyright protection to the authors and the
exception of the transformative work created by the users. Particularly, the fact that UGC could possibly deem to be an infringement regarding Article 226 and 327 of the InfoSoc Directive due to its nature of borrowing and recreating, results in little excuse to legally exist under EU copyright law.
Moreover, looking into the intermediaries’ liability, there are still issues on how to control the hosting websites, saying that in what extent the liability can go? What is the right way to deal with the copyright issue between the hosting websites and the users of the websites? Who owns the content and who will take responsibility when the infringement has occurred? Is the ISP take down system fair for users? Perhaps it is the high time for European Union to implement the specific exemptions for UGC in order to solve this issue. On the other hand, Canada has just developed a set of specific exception clause in copyright law that is suitable for UGC resolutions which can set the good
Vassiliou (Education, Culture, Multilingualism and Youth). Its main purpose is to seek to deliver rapid progress in bringing content online through practice industry-led solutions. 26 Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society.
example for the EU. Perhaps adding new exception clause for transformative works is another possible way to solve this ongoing issue.
3. UGC and copyright law in EU
3.1 Source of law and scope of protection
To begin with, copyright in the EU is territory based which is subject to several international obligations. European Union has worked hard on
harmonizing aspects of copyright between the member states and has done it with the introduction of The InfoSoc Directive.28 The Berne convention29
established a minimum standard for the protection of copyright and neighboring rights and is the first major effort towards copyright coherence. Berne
convention sets out a general principle for all exceptions to copyright called the three-step test30 and it has become major norm in copyright governance.
In general, The InfoSoc directive harmonizes the right of reproduction, distribution, communication of works to the public, and making works available to the public. It also regulates limitations and exceptions according to Article 5 of the Directive which follows the three-step test principle in Berne Convention. However, the adaptation right has not been harmonized yet in the EU copyright law so as the transformative works. The scope of modification, reworking and reusing of copyright work has not been harmonized and it has never been clear on the criterion and such about how much one has to prove to create new work out of pre-existing one. In light of the originality criterion, The InfoSoc
Directive does not set out the basic standard which leaves uncertainty in
determining the degree of creativity to make an independent works in their own
28 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. 29 Berne Convention for the Protection of Literary and Artistic Works.
right.31Moreover, the term “expression” has not been harmonized and clearly defined in the EU level.32
In terms of introducing new exceptions to copyright, the InfoSoc
directive provides mandatory clause33 and an exhaustive list of non-mandatory34 exceptions, which the member states may choose to implement as they will. Interestingly, when it comes to the existing of ‘transformative uses’, we cannot really find it among the list in Article 5 of the Directive. Although there are some specific exceptions that could possibly fit and overlap with the
aforementioned uses such as parody35which will be discussed further in this paper, it seems not enough to cover all the unique details that shape up transformative work.
3.2 Reproduction right in the EU
Berne Convention has set out the introduction of the reproduction right in the EU, followed by the InfoSoc Directive. Regarding the extent of
reproduction right within EU, it appears that the definition of the term
“reproduction” is very broad.36 According to Article 9(1) of the 1971 Berne Paris Text provides: “Authors of literary and artistic works protected by this convention shall have the exclusive right of authoring and reproduction of these works, in any manner or form.”37 According to the WIPO guide to the Berne convention38, the words ‘in any manner or form’ are wide enough to cover all
31 Eric Ostlund, “Transformative European Copyright: Introducing an exception for creative transformative works into EU law”, Thesis in Intellectual property law, Autumn 2013. 32 Julien Cabay and Maxime Lambrecht, “Remix prohibited: how rigid EU copyright laws inhibit creativity”, Journal of Intellectual Property Law and Practice, 2015, Vol. 10, No. 5. 33 Article 5(1) of The InfoSoc Directive.
34 Article 5(3) of The InfoSoc Directive. 35 Article 5(3)(k) of The InfoSoc Directive.
36 Tatiana-Eleni Synodinou, Codification of European Copyright Law, Wolters Kluwer Law and Business, Information Law series, Volume 29, 2012.
37 Berne Convention, 1971 Paris Text Art.9(1).
methods of reproduction. However, Article 9(2) also deals with the exemptions to the reproduction right where it has introduced the three-step test. But how much will be considered as the act of reproduction that may infringe the copyright? This is still debatable among Member States. It seems like Berne Convention also protects the partial reproduction of a work even though it does not appear from the actual text as UK’s attempt to clarify this matter was withdrawn at the Conference in Stockholm when it was emphasized that “all rights granted in respect of works under the convention are applicable, without this being explicitly stated, either to the whole work or to parts of it”39 In the same way, The German copyright Act defines the reproduction right as “the right to make copies of the work by whatever method and in whatever quantity.”40
However, it does not seem too hopeless as the European Court of Justice regarded the ‘originality’ as the standard for the partial reproduction in
“Infopaq” case where the important pronouncements of the ECJ on originality started with this decision. The court boldly decided that in order to be a
reproduction in part, the extract of the work must contain an element of the work which expresses the author’s own intellectual creation.41 As a result to this decision, it can be seen that the originality can be the big role in the assessment of the scope of reproduction right.
It is worth take a deeper look at the real definition of the term “reproduction”. The term would not refer to the mere material fact of the reproduction but also to ‘the exploitation nature’ of the work based on this
of reproduction: design, engraving, lithography, offset and all other printing processes, typewriting, photocopying, xerox, mechanical or magnetic recording (discs, cassettes,
magnetic tape, films, microfilms, etc.), and all other processes known or yet to be discovered. It is simply a matter of fixing the work in some material form. It clearly includes the
recording of both sounds and images (see paragraph (3) of this Article).
39 Records of the intellectual property conference of Stockholm June 11 to July 14, 1967. 40 Germany, Copyright Act Art. 16(1).
reproduction according to Fabiani’s analysis42 where he suggested the “economic incidence” criterion and noted that it should be served as a core standard to determine the restriction of the reproduction right. Fabiani focused on the relationship between the act of reproduction, the act of exploitation and the exclusive reproduction. He pointed out the importance in weighing in the act of exploitation when determining the scope of reproduction right of the author.43 In my point of view, I support Fabiani’s analysis due to the fact that
reproduction should have boundaries and should never be too broad in scope and in fact the effective way to define the scope is to bring the economic analysis into the equation to make the fairness for both sides, the authors and the users. Moreover, aligning these aspects together can bring consistency in the scope of protection of the economic rights.
There was an attempt in finding the scope of reproduction in 1995 Green Paper44. The commission expressed the intention to find a proper definition of the reproduction right “in a digital environment”. In particular, it focused on the exceptions for the reproduction right and also proposed the possible exception for user-generated content. However, the commission still failed to give the definition to the reproduction right. The question still remains whether the uses of a work in an altered form may infringe the reproduction right and act against the author’s exclusive right as well as whether all kinds of adaptations will fall into the scope of reproduction.45
42 Fabiani, “Le droit de reproduction et le revision de la Convention de Berne”, 286, also see Sari Depreeuw, “The variable scope of the exclusive economic rights in copyright”, Kluwer Law international, 2014.
43 see more in Sari Depreeuw, “The variable scope of exclusive economic rights in copyright”, Kluwer Law International, 2014.
3.3 Adaptation and derivative work in the EU
The term “adaptation” usually refers to the work that is converted into another form of expression that is not considered the simple reproduction, for example, translation of Harry Potter from English to Thai or Making of Game of Thrones series out of the novel.46 However, the transformation is part of the process in adaptation but not every transformation is adaptation. Thus, there is an overlap between transformative work and adaptation that needs to be further clarified. Also, there are no define line on the reproduction of a work and an adaptation of a work and never easy to draw one.
To begin with, adaptation right has not been an important concern in the EU. Article 2(3) of the Berne Convention, Paris Text provides the protection to the derivative work in the sense that “Translation, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work”47
However, the common standard of what work is considered an adaptation is still vague and uncertain. Although the right against the translation, adaptation, arrangement and any other alteration of a computer programme have been mentioned in The E.C. Software Directive48, no general harmonization of a translation or adaptation right with regard to other categories of works has since occurred, not even in the context of the E.C. Copyright in the Information
Society Directive. As regards EU copyright, the InfoSoc Directive does not contain any reference to the right of adaptation. In late 2013, Ireland has released the fascinating Modernizing Copyright Report by Irish Review
Committee49 which focused on exceptions and limitations for innovation. The report recommended introducing exception and also U.S. fair use exception and
46 Copinger & Skine James on Copyright, 17th Edition, 2nd Supplement. 47 Berne Convention. 1971 Paris Text Art. 12.
mentioned the importance of adaptations and transformative work. According to the report, the Commission writes;
“Contrary to the reproduction right and the communication to the public/making available right, there is no express rule with respect to adaptations in the InfoSoc Directive (unlike the Software and in the Database Directive). However, the broad manner in which the
reproduction right in Article 2 of that Directive is formulated and the CJEU’s jurisprudence on the scope of the reproduction right notable in Infopaq and Eva-Maria Painer seem to cover adaptations which give rise to a further reproduction within the meaning of Article 2. The pending case Allposters50 will shed further light on the scope of Article 2.”51
The question whether derivative work is an infringing adaption of the first work and in what extent, creative elements from the first work have been appropriated into the second work are never-ending in EU. There are significant differences in national laws. For instance, France and Netherlands 52 still
consider adaptations and other transformations as forms of reproductions while Italy, Germany and the UK see adaptation as a separate right.53 Germany has the legal term “inner distance” using to evaluate the possibility of
transformative infringing in parody exception,54saying that, if the ‘distance’
50 C-419/13 Judgment of the Court (Fourth Chamber) of 22 January 2015 Art & Allposters International BV v Stichting Pictoright.
51 Page 99 of Draft IA.
52 France, Intellectual Property Code Arts. L 122-1, 122-4; Netherlands, Copyright Act Art. 13.
between first and second work is far enough, no adaptation will be found and that means no infringement will be found either. The matter of “inner distance” parody exception in Germany will be discussed further in this paper.
In conclusion the adaptation has not been expressly and generally
harmonized for the subject-matter other than computer programs and databases. Although Member States are free to legislate the exceptions but the scope of three-step test is too limited and narrow to cover the adaptation of the work. 3.4 Transformative work within the EU
Transformative work usually derives from the pre-existing idea and
undeniably borrows the existing material to create new work. It usually refers to the mash-up, remix work that combines together to create new work.
Transformative work in fact exists in U.S. copyright system under Fair use exception.55 The fact that UGC is created from pre-existing materials,
contributes a high chance of infringement implications and the grey area on how to protect UGC creators and originator’s work under copyright limitations and exceptions in the EU, in particular in the scope of three-step test.56 We have seen transformative work for a long time from the history, even Shakespears, Picasso and other artists in the past. It is the way of creating new work and the way art is developed for a long time. In the past, a small amount of idea
borrowing is considered acceptable as opposed to the present. First of all, transformative uses touch on the right of reproduction regarding the InfoSoc Directive. Since the scope of the right of reproduction in EU law is very wide as it covers any “direct and indirect, temporary or permanent reproduction of a work by any means and in any form, in whole or in part”57 makes it nearly
55 Section 107 of the US Copyright Act of 1976.
impossible for transformative work to survive. It is a good start that at least we can define the scope of right of ‘reproduction’ with the scope of ‘originality’ according to Infopaq decision although it does not appear as the clear
criterion.58 French and Belgian case law are consistent with the CJEU’s interpretation of the right of reproduction and the scope of protection
correspond with that of originality.59 In light of originality criterion in the UK copyright law, the work is considered original when skill, labor, judgement and effort has been put to create the piece of work. Thus, the infringement may occur when ‘the work as a whole or any substantial part of it’ has been copied while the meaning of substantial is defined on case-by case basis.60
The ‘parody exception’ appears to provide the most important breathing space within copyright law with regard to transformative uses. EU law provides an optional exception for the “use for the purpose of caricature, parody or
pastiche”61 in the InfoSoc Directive. Parody exception was the main matter in the Deckmyn case.62 It is the case of the drawing produced and distributed by a member of Vlamms belang political party in Belgium that happened to resemble the cover page of a copyrighted comic book. The court retained two essential characteristics of a parody; “first, to evoke an existing work while being
noticeably different from it, and secondly, to constitute an expression of humor or mockery” instead of applying a number of conditions such as the parody should relate to the original work itself or mention the source of the parodied
58 CJEU, July 19, 2009, Infopaq International v Danske Dagblades Forening, C-5/08, 51. 59 Julien Cabay and Maxime Lambrecht, “Remix prohibited – How rigid EU copyright laws inhibit creativity”, Forthcoming in Journal of Intellectual Property Law and Practice, 2015. 60 See https://www.copyrightuser.org/understand/rights-permissions/protecting/(last access on May 26, 2019)
61 Article 5(3)(k) of The InfoSoc Directive.
work.63 (Julien: 2015) In a way, the Deckmyn ruling could be a good role model for the work in the field of transformative use that might be suitable for UGC. Even though the Deckmyn case provided more relaxing parody exception for transformative use but its scope remains quite narrow for the wide scope of UGC work. In particular, UGC work does not have to always contain humor and mockery which might not fit the scope of parody exception.
Regarding the flexibility of exception and limitation interpretation, the CJEU adhered to the traditional dogma of a strict interpretation of copyright limitations in Infopaq. The court pointed out that, according to established 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 but
that directive, namely the requirement of authorization from the right holder for any reproduction of a protected work.”64
However, there are some court decisions that are quite flexible and safeguarded the effectiveness of the limitations and also tried to strike the
balance between the copyright protection and freedom of expression which will be discussed further in this paper in the human rights aspect. From these rulings, it appears that EU member states may have the breathing space for copyright limitations that support transformative use. Perhaps, transformative use can have its own place if freedom of expression comes into play to weigh in the
63 The court in Painer ruled similarly that mention of the source was not a condition for the exception for security purposes, as no such condition exists in the wording of the directive December 1,2011, Eva-Maria Painer v Standard VerlagsGmbH and others, C-145/10.
decision in court and at the same time the court interpret the provision in the more flexible way. Relying on Article 11 of the EU Charter of fundamental rights and Article 10 of the European Convention on Human Rights, the CJEU could interpret the ‘quotation right’ and the ‘parody exemption’ less strictly. Moreover, from the Painer and the Deckmyn decision, the court thus referred to quotations and parodies as ‘user rights’ rather than mere ‘user
interests’(Julian:2015).
To sum up, if we compare copyright laws from various jurisdiction on the issue of flexibility and freedom to create, current EU laws are clearly among the most restrictive. However, it is not that all hope is gone since there is still
possible way of applying external exception such as freedom of expression and information which can benefit UGC broadly. In my point of view, the nature of transformative work is different from adaptation work since it has its own unique character which can convert the former work into new insights and understandings. Thus, the standard and criteria should not be the same as adaptation right but instead should be set out separately and specifically. 3.5 Exceptions and limitations in EU copyright law
To start with, some may understand the terms ‘exception and limitation’ as the same meaning but actually this two terms are often used interchangeably by established national law, international Convention and EU Directives,
though they are not identical.65 The limits are more of the tool to determine the scope of protection while the exceptions can be seen as restriction. One scholar has put it this way, “limitations represent a ‘pound of copyright’s fair flesh’. Take them out and one risks killing copyright, by severing a vital link between authors and society.”66
65 On the legal nature of exceptions and limitations, see Guibault (2002), 21-11-; Sirinelli(1999), 29.
Article 5 of the InfoSoc Directive enumerates exhaustively the types of limitations that member states may implement in national law. The list contains a single mandatory limitation permitting transient copying incidental to digital communications, including caching and browsing67, and a list of 21 optional limitations, from which member states may select68. All limitations
implemented at the national level must comply with the Berne convention three-step test.69
Article 5 of the copyright Directive sets up very diverse exceptions to the reproduction right defined in article 2. It provides non-mandatory exceptions for the Member States to pick as they see fit for their national legislation. However, these lists include only few options that could be interesting in relation to the UGC, which are the exceptions for ‘quotations, incidental use, caricature parody and pastiche.’ Unfortunately, it is particularly prohibited to introduce new
limitations and exceptions to the reproduction under Article 5 of the copyright Directive. The three-step test has been introduced in Article 5(5) to set the standard for the whole exceptions while it is the matter of interpretation when it comes to the wording of the three-step test. Actually, case law on the
interpretation of Article 5 and the three-step test is still rather limited. It
appeared that, the exception of Article 5, as repeatedly confirmed by the CJEU, must be interpreted narrowly and strictly as derogations from the exclusive
rights granted under the directives according to the Infopaq case.70 Moreover,
the fact that Member States are not able to create new limitations which are not part of the lists can lead to the deadlock and zero flexibility for the digital age.
neighbouring rights with regard to general interest missions for the transmission of knowledge: Prospects for their adaptation to the digital environment”, 2003. 67 Art 5(1) of The InfoSoc Directive.
68 Art 5(2), (3) of The InfoSoc Directive .
69 Art 5(5) of The InfoSoc Directive, Article 9(2) of Berne Convention.
70A. Kur/T. Dreier, European Intellectual Property Law: Text, Cases and Materials, Edward Elgar, Cheltenham, Northampton, 2013, p. 302, see Judgment in C-5/08, Infopaq
International A/S v Danske Dagblades Forening (Infopaq I), EU:C:2009:465, paras. 56-57
However, there happens to be a case in French where the court did not merely rely on exception and limitation in considering the infringement case that involves the reproduction right. Regarding the French case, Ashby v. France case71, it is the case where the court did not rule relying merely on the narrowly interpreted exceptions in the copyright law but weighed in an external human rights perspective to justify the copyright enforcement. It is the case between Robert Ashby Donald, Marcio Madeira Moraes and Olivier Claisse, three fashion photographers and France where there was convicted for copyright infringement following the publication of pictures on the internet site
Viewfinder of theirs. They were claimed to have posted the photographs of the fashion show in Paris in 2003 on their website without the permission of the fashion houses and ordered to pay fines to the French design clothing
Federation and five fashion houses. Although the applicants could not rely on the exception to the reproduction of works exclusively for news reporting and information purposes in French Law72, the court applied Article 10 (freedom of expression and information) of the European Convention to the case and added that “while this is subject to exceptions, these exceptions must be construed strictly, and the need for any restrictions must be established convincingly.”73
In light of the quotation exception, Painer case has set the good example for the flexibility of the quotation exception. The court ruled in favor of the publication that published the photographs without the owner consent and
without the name of Painer, the photographer by reasoned that the name was not
71 Judgment by the European Court of Human Rights (Fifth Section), case Ashby Donald and others v. France, Appl. nr. 36769/08 of 10 January 2013.
72 Article 122-5 No 9 of the French Code de la Propriété Intellectuele, “9° La reproduction ou la représentation, intégrale ou partielle, d'une oeuvre d'art graphique, plastique ou architecturale, par voie de presse écrite, audiovisuelle ou en ligne, dans un but exclusif d'information immédiate et en relation directe avec cette dernière, sous réserve d'indiquer clairement le nom de l'auteur”.
necessary to be stated if the author’s name was not indicated lawfully by the national security authorities in their investigations, the indication of their source is required but not necessary the name of the author. In this case, the court also tried to strike the ‘fair balance’ between the author’s interest and the publishers’ right to freedom of expression which result in the flexible interpretation of the exception regarding Article 5(3)(d).
Meanwhile, Germany has the ‘free adaptation’74 or ‘free utilization’ rule and the Netherlands has “new work’ exemption which can serve as the extra breathing space to the UGC.75 In general, German copyright law does not provide the Parody exception but it disguises in the adaptation right under
section 2376 of the Germany Copyright law. This doctrine mainly focuses on the transformative nature of the work. 77 The tradition interpretation relies on the similarities between the old and the new work not the differences. Thus, parody will not be considered infringement if it passes the ‘free use’ criteria in German
copyright law. (Dinusha:2013) Professor Eugen Ulmer stated as follows;
“Any later work that takes, and clearly copies, the essential aspects or traits of a prior work is subject to copyright in that prior work. The
doctrine of free utilization represents a corollary: No infringement is to be
74 The doctrine of frie Benutzung. Article 24 of Urheberrechtsgesetz 1965. “24(1) – An independent work created by free use of the work of another person may be published and exploited without the consent of the author of the used work”.
75 Bernt Hugenholtz, Martin R.F. Senftleben, “Fair Use in European. In search of Flexibilities”, Amsterdam, November 2011.
76 Section 23 “Adaptations or other transformations of a work may be published or exploited only with the consent of the author of the adapted or transformed work. In the case of
cinematographic adaptations of a work, of the execution of plans and sketches for a work of fine art, or of copies of an architectural work, the author’s consent shall be required for the making of such adaptation or transformation”.
found if these essential aspects or traits are sufficiently attenuated, or faded away, within the later work.”78
Moreover, he also mentioned that literary and artistic evaluation has to be taken to an account when applying the doctrine. However, to what extent the work used from the previous use will be deem as a new independent work is still unclear. Regarding to several German cases namely, Disney-Parodie (1971)79, Asterix case(1993)80, Gies-Adler (2003)81, the court more likely to interpreted ‘free utilization’ together with constitutional guarantees such as
freedom of expression, freedom of art, science, research and education.82
3.5.1 Three-step test
Perhaps the three-step test can clarify the relation between the
‘reproduction right’ and ‘exploitation of the work’, similarly to its role in the Berne Convention. The three-step test was first established in relation to the exclusive right of reproduction under Article 9(2) of the Berne Convention, it states that:
“Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound
and visual recordings - (1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of
authorizing the reproduction of these works, in any manner or form. (2)
78 See EUGEN ULMER, URHEBER- UND VERLAGSRECHT 265-78 passim (3d ed. 1980). See also Paul Edward Geller, “A German Approach to Fair Use: Test cases for TRIPS criteria for copyright limitations?”, Journal of the copyright Society of the USA – Vol. 57 (2010).
79 BGH GRUR 1971, 588. 80 BGH, March 11, 1993.
81 Gies-Adler BGH, March 20, 2003 (I ZR 117/00).
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (3) Any sound or visual recording shall be considered as a
reproduction for the purposes of this Convention.”83
The three-step test was also invoked to justify the scope of protection of the reproduction in a digital surrounding. The major purpose is to safeguard the exploitation of the work by means of reproductions which was stated from the
start, during the preparation of Stockholm conference.84 As an interface between
authors’ exclusive right and privileged uses, three-step test would make it
possible to approach the core of copyright’s balance in stages.85 Martin
Senftleben comments that the international three-step test is ‘an essential, flexible element that allows national law makers to satisfy domestic social,
cultural and economic needs’.86
The problematic part of the three-step test is the words ‘special cases’ which appears to limit and narrow down the scope of exception and limitation in national legislation. Moreover, it is not certain on how to implement this test in the national level since the interpretation can be vary among the member
states. In its Green Paper87 on Copyright in the Knowledge economy, the
commission noticed that transformative uses have to pass the three-step test in order to be considered as original work which usually hard because usually the
83 Article 9(2) of the Berne Convention.
84 Sari Depreeuw, “The variable scope of the exclusive economic rights in copyright”, Kluwer Law international, 2014.
85 Senftleben, “Copyright, Limitations and the Three-step test”, 132.
86 M.Senftleben, “The international Three-step test. A Model Provision for EC Fair use Legisltion”, supra 67.
majority of transformative use is not considered ‘a special case’ allowed in the
InfoSoc Directive.88
Apart from the three-step test, there seems to be another interesting
option for the exception which appears in the broad language as “fair practice”
Regarding Article 10.2 of the Berne Convention, reads as follows;
“It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.”
It appears that this provision has set the broad exception for the users and mentioned the term ‘fair practice’ which could be interpreted in the manner that benefits the users. Overall, it seems that the three-step test is understood as a mean to restrict the application of the exceptions, not as a direct principle for the understanding of reproduction right. The close connection between the reproduction right and the three step test has disappeared in the InfoSoc
Directive, which focuses on the exhaustively listed exceptions and limitations in
Article 5.89 By interpreting the criteria of the three-step test as open-ended
factors, and by recognizing that such criteria equally allow for the introduction and broadening of limitations, Article5(5) could be a much better tool for balancing interests of users and right owners. Moreover, it is interesting to explore the possibility of extending the interpretation of the three-step test to
extent the scope of exception and limitation that might be benefit for the transformative work.
3.5.2 How about implementing U.S. Fair use?
In light of U.S. copyright system, the exception and limitation to the
exclusive right comes in the form of “fair use”. The statutory framework is Section 107 of the copyright Act, which requires the court to consider a least four factors: (a) the purpose and character of unauthorized use; (b) the nature of the protected work; (c) the amount of the protected work used compared to the whole protected work; and (d) the impact of the use on the market of the
protected work.90
Some may see Fair use doctrine as the best solution for transformative work since its priority is the fairness and its scope of interpretation is very
broad. However, if we consider the background of U.S. legal system, we can see that the task of combining fair use doctrine in to Three-step test is quite a hard one. To begin with, U.S. system has adopted the English common law where the court has the high power in ruling and interpreting the legislation. Due to the fact that USA legal system is based on case law, the court rules based upon the interpretation that fit the social and culture development. That is the reason why the court needs to often adjust the yardstick to be able to match the changeable circumstances and that can lead to the continuously changing of U.S law, unlike the EU code system that relies heavily on codes and words. It leads to why some scholars do not agree with the idea of adopting USA fair use into the European Union due to the fact that the USA fair use test is based on decades of jurisprudence and is a court made law that was subsequently codified in the US
Copyright Act and since then has been subject to further jurisprudence. Therefore, it is not readily adaptable to the legal framework in Europe.91 3.6 New provision in Directive on Copyright in the Digital Single Market
Just recently, The European Parliament has given final approval to the Copyright Directive92, a controversial legislation designed to make the
copyright law compatible with the digital era but ended up causing more conflict among internet users. The main concern of this new provision is the liability of the intermediaries such as the hosting websites. It resulted in the liability of the internet intermediaries such as Youtube and Facebook, saying that these companies will be responsible for checking all uploaded content for copyrighted material regarding Article 1393. Basically, if a user uploads a piece of content that infringes copyright, the platform is at risk. The article directs member states to consider the size of the provider, the amount of content uploaded, and the effectiveness of the measures imposed ‘in light of
technological developments’ such as web filter technology. However, uploading to non-commercial sites like Wikipedia will be exempted.94 As a result, the change has caused the social uproar. One of the biggest tech guy, Jimmy Wales, the founder of Wikipedia made an unpleasant statement on his Twitter account:
“You, the internet user, have lost a huge battle today in Internet
parliament. The free and open internet is being quickly handed over to
91 Ansgar Ohly, “Common Principles of European Intellectual Property Law”, 2012. Jean-Luc Piotraut, “Limitations and Exceptions: Towards a European “Fair Use” Doctrine?”. Igor B. Nestoruk, “Common Principles of European Intellectual Property Law: a Polish
Perspective”.
92 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.
93 Now article 17 of the Directive.
corporate giants at the expense of ordinary people. This is not about helping artists, it I about empowering monopolistic practices.”95
Some critics suggested that this new rule could result in the use of upload filters, which could potential end up preventing users from uploading images which fall under fair use and hinder the users’ freedom of expression. There were even hashtag campaign on Youtube and Twitter called
#SaveYourInternet96 which contains reactions of people towards the change of law. On October 22, Youtube CEO Susan Wojcicki published a blogpost warning against the impact of the Directive. She wrote:
“Article 13 as written threatens to shut down the ability of millions of people-from creators like you to everyday users- to upload content to platforms like Youtube….And, if implemented as proposed, Article 13 threatens hundreds of thousands of jobs, European creators, businesses, artists and everyone they employ,”97
However, memes are safe from this new legislation, at least that so they said. The EU announced that memes, along with GIFS will be shielded from the directive as they will fall under exemptions provisions for quotation, criticism, review, caricature, parody or pastiche. This state of law seems to act against the users’ right and support the intermediaries side. In my point of view,
intermediaries should not be given privilege and receive specific protection but instead users’ right should be emphasized. The fact that intermediaries such as
95 See Https://twitter.com/jimmy_wales/status/1110517366365044736 (Last access on May 7,2019)
web hosting usually gain revenues from its website, the liability to the contents posted on their sites should be put on their shoulders not users’.
4. Copyright and human rights 4.1 Freedom of expression
To start with, copyright and the right to freedom of expression both constitute fundamental rights in the European. European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and also the Charter of Fundamental Rights for the European Union (EU Charter) are two main focuses in this subject matter. The discussion is always about to what extent constitutional provision on ‘freedom of expression’ can have an impact on the outcome in cases concerning copyright infringement and in what extent it can impact the copyright legislation regarding UGC in the future.
Basically, copyright gives the author personal right to decide what to do with their work. The EU Charter considers the copyright and other intellectual property rights as ‘fundamental’ as Article 17(2) of the EU Charter states that ‘intellectual property shall be protected’.98 In contrast, copyright is not
acknowledged as the human right but instead is widely interpreted in Article 199 of the First Protocol to the ECHR as well as from Article 8100 which protects private life or family life101
Article 11(1) of the EU Charter declares that, “Everyone has the right to freedom of expression. This shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. 102 While Article 10 of the ECHR
98 Article 17(2) of the EU Charter.
99 Article 1 of the First Protocol to the EUHR, “protection of Property”. 100 Article 8 of the First protocol to the EUHR, “Protection of life”.
101 Geiger(2009), p.32-33 and Rosen, Copyright and freedom of expression in Sweden, p. 360.
provides the right to freedom of expression and information which the
protection offered shall be interpreted in a broadly according to the ECtHR.103 The fact that both copyright and freedom of expression are fundamental rights, striking balance between the two is always a hard work. One can say that copyright enhance freedom of expression in a way that it encourages people to express their ideas. On the other hand, some may find copyrights hindering the freedom to create and produce new work which leads to the conflict between two rights. As Article 11 of EU Charter is the apparent example to show the clashes between the two rights as it assures that everyone has the freedom to hold opinions and to receive ideas. In other words, it seems inevitable that a copyright holder’s exclusive right to certain expressions will prevent other people from expressing themselves the same way.104
4.2 Relationship between freedom of expression and UGC
Take a look at the relationship between UGC and freedom of expression, it seems like nowadays anyone can express their ideas and opinions freely through the internet platform more than in the past. UGC is considered the new medium in our society that can express our creativity without having to be a professional.105 Users express their creativity freely knowing it is in the broad scope in their fundamental rights. There are some recent cases in EU court that has applied the provisions regarding freedom of expression to balance with the
103 Toby Mendel, “A guide to the interpretation and meaning of Article 10 of the European Convention on Human Rights”,Council of Eutope Publishing Editions du Conseil de l’Europe, “Freedom of expression in Europe”, Human rights files, No.18. see also David Henningsson, “Copyright and freedom of Expression in Sweden and the European Union: The conflict between two fundamental rights in the information society”, Graduate Thesis, Master of Laws programme of faculty of law Lund University, Autumn 2012.
104 Rosen Freedom of expression in lineage with authors’ right p.1. See also Angelopoulos s.328.
strict rules of copyright law. For example, In Germania 3, Heiner Muller wrote the play ‘Germania 3 Gespenster am toten Mann’ that contained the substantive parts of Bertolt Brecht work just to discuss his political view. He is claimed to violate the copyright right of Bertolt and failed to meet the German copyright exception to the quotation right. In the case at hand, the Court ruled, the commercial interests of the copyright owner should give way to the user’s
interest in providing artistic commentary. In this case, the court assured freedom of art and ruled that the quotation right deserves broad application with respect to artistic work.106The court considered that copyright limitations should be construed in the light of freedom of artistic expression.107 The court applied the lesson of Germania3 in The Gies-Adler Case108 where in this case it is the issue with political caricature. The court opinioned that statutory law had to be
construed in conformity with the constitution and freedom of expression should be guaranteed in this case.109 Austria case, Medienprofessor case110 is another example that freedom of expression prevailed over copyright. In Promusicae111 case, the court emphasized that fair balance has to be struck between
fundamental rights and that the rights between copyright holders and rights of others such as intermediaries and users have to be equally balanced.112
It is worthy take a look at the private ordering system happening commonly in the digital world right now such as ISP take down system, filtering system and DRM. With the new EU provision on the online filtering system for the hosting websites, it is undeniably to assume that there might be
106 Germania 3 “Gespenster am toten mann”, Federal Constitutional Court, June 29, 2000, [2000] .
107 Article 5(3) of German Basic Law. 108 BGH Gies-Adler (File IZR 117/00).
109 Paul Edward Geller, “A German Approach to fair use: Test cases for TRIPS criteria for copyright limitations?”, Journal of the Copyright Society of the USA- Vol.57 (2010). 110 Medienprofessor, the Supreme Court of Autria, 12 June 2001, 33 IIC 994 (2002). 111 C-275/06 Promusicae, paragraph 62-68.
some irritation to the freedom of expression. In Scarlet extended case113, the court also declared that the filtering system might also infringe the fundamental rights of the people whom are using these services.
Not to mention this important case involving with UGC particularly. SABAM case114 is considered a win for fundamental freedoms as the court underlined the importance of an open and free internet and the respect of
freedom of expression and freedom of communication. The CJEU ruled that “a social network cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work”. The Court set out the standard that copyright-protection also had to be balanced against the users’ right to protection of personal data and their freedom to receive or impart information.115 Moreover, according to Sanfeld Jacobsen and Salung Petersen, they argued that “freedom of expression values are more likely to prevail of the sought injunction is likely to affect other persons than the actual infringers or when the measure will hinder a broad circle of people from accessing or spreading significant information of public concern.”116
Moreover, some legal scholars such as Hugenholtz and Sentfleben have suggested the more flexible copyright system that promotes freedom of
expression aspects. Geiger stresses that by using fundamental rights as the boundary of copyright, legislators and judges can rebalance the matter. 117
However, as is obvious from the discussion above, further guidance on the proper balance between copyright and freedom of expression has to be
113 C-70/10 Scarlet Extended paragraphs 45-50. 114 C-360/10 SABAM v Netlog paragraphs 43-48.
115David Henningsson, “Copyright and Freedom of Expression in Sweden and the European Union”, Faculty of Law Lund University, Autumn 2012.
116 Sandfeld Jacobsen & Salung Petersen p. 179-180. See also David Henningsson,
“Copyright and Freedom of Expression in Sweden and the European Union”, Faculty of Law Lund University, Autumn 2012.
117 Geiger(2009) p. 37-4-, 48-49, (2007) p. 43-44 and (2006) p. 406. See also David
