Despite the title, this session was not completely US-focused, and indeed I very much enjoyed the talk by Hon Mr Justice Colin Birss (Chancery Division, High Court, London) on Article 10 of the European Convention on Human Rights (freedom of expression) and its potential role in expanding copyright exceptions in Europe.
|The copyright engine|
Hon Mr Justice Colin Birss spoke next. He recalled that, when he started practicing IP in 1990s, nobody spoke of human rights in relation to IP. Things have now changed, and human rights discourse has entered IP, in particular copyright. This is a piece of property [see also Article 17(2) of the Charter of Fundamental Rights], which is protected as a fundamental right in itself. So the question is how to best balance property (copyright) with freedom of expression values. It is the legislator's job to craft copyright exceptions to struck such a balance. However, some guidance may come from Article 10 itself, which sets a distinction between ideas (that should be protected within freedom of expression) and their expression (that fall within the scope of copyright). This means that under the Convention there is room for drafting broader copyright exceptions, certainly broader than what current UK copyright law allows. So, for instance, if you look at cases like those of search engines that provide snippets of texts, you may well argue that under current EU copyright this activity may be probably infringing. However, it may be argued that snippets merely provide information (not protectable expressions) and that under Article 10 they should be protected as an exercise of one's freedom of expression.
Pamela Samuelson (University of California, Berkeley, School of Law, Berkeley) spoke on the topic of appropriation and transformative use cases. She started by highlighting that 'transformative uses' may have three meanings under US law: (1) altering expression so as to convey new meaning; (2) productive uses, usually of literal copies; (3) uses for different purposes. She then considered the case of appropriation art and Cariou v Prince [here]. She concluded by mentioning that there is a number of cases (a notable example being Garcia v Google) in which copyright is used to achieve non-copyright goals. Answering a question from the audience, she noted that the outcome of the Google Books case [here] is consistent with US case law on fair use.
|Fair use countries (green); |
fair dealing countries (blue);
other countries (grey)
Ron Lazebnik (Fordham University School of Law, New York) was the final speaker, and he addressed the question 'Who decides what a fair use is on the Internet?' by looking into Capitol Records v Vimeo and Viacom v YouTube.