Guest Book Review: Exceptions in EU Copyright Law: In Search of a Balance Between Flexibility and Legal Certainty

This review of Exceptions in EU Copyright Law: In Search of a Balance Between Flexibility and Legal Certainty by Tito Rendas, is brought to you by the Rt Hon Sir Richard Arnold, Judge of the Court of Appeal of England and Wales. 

 

As copyright has risen in ubiquity as more and more of daily life takes place online, increasing attention has been paid by scholars to exceptions and limitations. A prominent feature of the debate has been the comparison between the fair use provision contained in section 107 of the US Copyright Act 1976 and the more detailed exceptions and limitations contained in legislation such as the UK Copyright, Designs and Patents Act 1988. Some have argued in favour of the perceived flexibility of the former, while others have argued in favour of the perceived certainty offered by the latter. Much ink has been spilled both by those arguing in favour, or resisting, legislative change and by law reform bodies charged with considering such arguments.  

In April 2020 and February 2021 two substantial new contributions to this debate were published. First came Emily Hudson’s Drafting Copyright Exceptions: From the Law in Books to Law in Action (Cambridge University Press) [IPKat review here]. This was the product of extensive fieldwork conducted with cultural institutions (archives, galleries, libraries, museums and industry peak bodies) in Australia, Canada, the UK and the USA over 15 years examining how such bodies apply such provisions in practice and the lessons that can be learned by policy makers. Then came this book by Tito Rendas, a revised and updated version of his doctoral thesis at Universidade Católica Portuguesa. Although a purely doctrinal work, this contribution draws not only on a thorough survey of the existing literature on exceptions and limitations (albeit not an exhaustive one given that Hudson’s book is not cited), but also on linguistics, philosophy and the theory of law. 

Both authors frame their work by reference to the debate over legal standards and rules. A rule is a legal provision such as a 30 mile-per-hour speed limit, which specifies a precise legal consequence for transgressing a precise legal boundary for permitted conduct. Whereas a standard is a legal criterion such as negligence, which involves the judicial evaluation of relevant circumstances in order to reach a decision as to whether conduct should be legally condemned. Rules appear to be certain, while standards appear to be flexible. Another way of expressing this is that rules tend to involve ex ante decision-making by legislators, while standards tend to involve ex post decision-making by courts. As both authors explain, however, the differences between rules and standards are often less significant than may appear. Take the 30 mph speed limit. Partly to allow for imprecision and inaccuracy in measurements, but also due to limits on resources, most enforcement systems will build in a margin of prosecutorial discretion, meaning that, say, no-one is prosecuted unless the speed camera reading is at least 33 mph. Even then, sentencing discretion can mean that a light penalty is imposed on the driver going at 33 mph while a heavier one is imposed on the driver going at 43 mph and a still heavier one on the driver going at 53 mph. Thus, rules can become standard-like in their application. Conversely, standards like negligence can become rule-like in their application as case law builds up and is analysed by commentators: patterns emerge and the application of the standard becomes more predictable owing to the basic principle of justice that the law should be uniformly applied (i.e. like cases treated alike).

Rendas begins in his introduction and in Chapters 1 and 2 by outlining the place of the catalogue of mandatory and optional exceptions to be found in Article 5 of the EU Information Society Directive in the international legal framework and in EU copyright law as whole. It is in this context that he makes one of his most original contributions, which concerns the vexed question of terminology. Legislative provisions that permit certain uses of copyright works and other subject matter which would otherwise amount to infringements have historically been termed “exceptions” and/or “limitations”. Leaving aside the question of what the difference is between an “exception” and a “limitation”, this practice has been criticised as tending to lead to unduly narrow interpretations of such provisions due to the principle that exceptions to rights should be strictly construed, a canon of construction that was regularly deployed by the Court of Justice of the European Union in its early decisions in this field. Some proponents of this view have argued that such provisions should be regarded as conferring “users’ rights”, a usage that has been adopted by the Supreme Court of Canada. Rendas suggests that the better view is that they should be categorised as user “privileges” in Hohfeld’s scheme of jural correlatives and opposites. This is a valuable insight, and one that he could perhaps have made greater use of in the succeeding chapters than he does. Rendas also employs the terminology of “permitted uses”, which has the virtue of both simplicity and neutrality.

 Image: Riana Harvey

In Chapter 3 Rendas unpacks the concepts of “flexibility” and “legal certainty” in this context. He concludes that “flexibility” is generally used to refer to two related policy goals:  ensuring that exceptions are readily adaptable to changes in technology, business and society, and accommodating the different legal systems, cultures and traditions of the Member States. He suggests that each of these goals can be assessed using a pair of criteria: legislative responsiveness and the exercise of judicial discretion (adaptation to change), and accommodation of legal traditions and of Member States’ specificities (adaptation to national cultures). Similarly, he concludes that “legal certainty” is generally used to refer to another two related policy goals: the need to guide rightholders and users as to what amount to infringing and non-infringing uses of protected works, and the desire to harmonise national laws. Again, he suggests that these each be assessed by a pair of criteria: legislative guidance and judicial guidance, and the harmonising effect of legislation and of CJEU case law.

In Chapter 4 Rendas considers how the provisions in Article 5 score when assessed using these criteria, taking the exceptions for temporary reproduction, private copying, teaching and research, parody and quotation as examples. He also considers Article 5(5) and the way in which the CJEU has interpreted these provisions. In addition, he gives some interesting examples of cases in which national courts have rendered decisions favouring users by resorting to other legal doctrines, such as implied consent, even though the opposite result appeared to be compelled by the wording of the legislation. His conclusion is that Article 5 scores poorly. The fact that most of the exceptions are optional in order to accommodate national cultures means that the level of harmonisation is lower than desirable, although the case law of the CJEU has achieved a greater degree of harmonisation than might have been expected. Article 5(5) introduces unnecessary complexity and uncertainty, particularly if it is understood as being addressed to national courts as well as legislators, and in any event is one-sided in its effect. Of most concern is the difficulty of adapting the framework to future technological change. Although it is possible for the EU legislature to adopt new exceptions, this is a difficult and slow process, as the Digital Single Market Directive demonstrates.

Finally, in Chapter 5, Rendas sets out a road map for reform. His proposal is framed at the level of principle rather than detailed drafting. In summary, it is that there should be three tiers of provisions. The first would be a tier of mandatory exceptions. The basic idea here is to make more of the existing Article 5 provisions mandatory. The second would be a further tier of optional exceptions where there is no need for the exceptions to be mandatory. (Curiously, Rendas appears to accept Lucie Guibault’s proposal that use for the purposes of public security or to ensure proper performance or reporting of administrative, parliamentary or judicial proceedings (Article 5(3)(e)) is one of the exceptions that should remain optional, whereas one might have thought that this was a prime example of an exception that should be mandatory – the notion that use of a work for the conduct of judicial proceedings could be an infringement is decidedly counter-intuitive.) The third tier would be a subsidiary standard-like exception available where no mandatory or optional exception is applicable. Rendas discusses a number of alternative approaches to the third tier exception. He rejects the ideas of applying the listed exceptions by analogy proposed by the Wittem Group, of re-formulating Article 5(5) so as to be more favourable to users and of simply importing fair use from US law. Instead, he proposes a new standard which is rooted in the CJEU’s existing jurisprudence. This would have four main elements: first, the requirement to strike a fair balance between rightholders and users; secondly, taking into account the profit-making nature of the use, where it exists, as a factor tending to negate the applicability of the exception; thirdly, considering the effect of the use upon the volume of sales and other lawful transactions relating to the work; and lastly, taking into account users’ fundamental rights. Rendas refutes a number of potential objections to this element of his proposal, and gives some examples of cases where the subsidiary exception could usefully apply. 

Rendas’ proposals for reform are balanced and well thought out, and merit consideration by policy makers. Whether or not they are taken up, however, his analysis is a valuable addition to the literature on this important topic.  

Details:

Wolters Kluwer, 2021

ISBN 978-94-035-2395-8

Price £122