Towards Fair Use in Europe? Why the Current Proposals for Reforming EU Copyright Law Are Silent on the Issue of Fair Use

Date: November 9, 2017 (Thursday)
Time: 1pm – 2pm
Venue: Room 825, 8/F Cheng Yu Tung Tower, the University of Hong Kong
Speaker: Prof. Martin Senftleben (Professor of Intellectual Property at the Centre for Law and Internet, Vrije Universiteit Amsterdam)

All are welcome! Please register here as soon as possible.

Abstract: Despite the emergence of more and more fair use legislation in other regions, the current proposals for the reform of EU copyright law do not include the adoption of an open-ended fair use norm. The 2013/2014 Public Consultation on the Review of the EU Copyright Rules explicitly addressed the need for more flexibility. Nonetheless, the proposed new copyright legislation is silent on the issue.

Against this background, the talk seeks to analyse the reasons for the absence of fair use proposals. In particular, it will show that there is no reason to believe that civil law judges are incapable of applying open-ended fair use norms adequately and consistently. To pave the way for EU fair use legislation in the future, the talk will also demonstrate that there is a strong need for the introduction of open-ended fair use norms, in particular in EU copyright law. In addition, strategies for translating lessons to be learned from the U.S. fair use approach into the EU system will be discussed. It will be shown that the introduction of a flexible fair use provision is unlikely to fail because of an inability or reluctance of civil law judges to apply open-ended norms. The example of the existing, open-ended defence of “due cause” in EU trademark law shows that the opposite is true. Moreover, a flexible copyright limitation in the EU system need not be a verbatim copy of the U.S. fair use doctrine. It seems preferable to apply traditional limitation prototypes by analogy in situations that require new use privileges. To establish a system that allows this analogous application, the role of the three-step test in EU copyright law would have to be recalibrated. For more information on the topic of the talk, see also the underlying paper: https://ssrn.com/abstract=3002275

About the speaker:

Martin Senftleben is Professor of Intellectual Property at the Centre for Law and Internet, Vrije Universiteit Amsterdam, Guest Professor at the Intellectual Property Research Institute, University of Xiamen, and Of Counsel at Bird & Bird, The Hague. His activities focus on the reconciliation of private intellectual property rights with competing public interests of a social, cultural or economic nature. Current research topics concern flexible fair use copyright limitations, trademark law and the preservation of the public domain, the international debate on the seizure of counterfeit goods in transit, the EU copyright reform and the liability of online platforms for infringement.

Mr. Senftleben studied law at the University of Heidelberg. He worked as a researcher at the Institute for Information Law of the University of Amsterdam and the Max Planck Institute for Innovation and Competition in Munich. In 2004, he was awarded a doctorate by the University of Amsterdam. From 2004 to 2007, he was a legal officer in the trademarks, industrial designs and geographical indications law division of the World Intellectual Property Organization (WIPO) in Geneva. Mr. Senftleben is a member of the Copyright Advisory Committee of the Dutch State. He provided advice to WIPO in several trademark and copyright projects. He is a member of the Executive Committee of the Association littéraire et artistique internationale (ALAI) and the International Association for the Advancement of Teaching and Research in Intellectual Property Law (ATRIP). As a guest lecturer, he provides courses at the Centre for International Intellectual Property Studies (CEIPI), Strasbourg, the EBS University of Business and Law, Wiesbaden, the HANKEN School of Economics, Helsinki, the Munich Intellectual Property Law Center (MIPLC) and the Universities of Vienna, Catania and Xiamen.

All are welcome!