Monday 24 September 2012

Consumers in the Digital Age

The Memorandum of Understanding Concerning the Interpretation of the Right of Quotation is an intriguing proposition. This initiative was sparked off by a meeting of stakeholders held at the European Parliament in May 2012, at which several participants indicated their support for the development of a memorandum of understanding between rights-holder representatives and consumers on a modern interpretation of the quotation limitation to copyright.

This draft of such a memorandum has been prepared for Consumers International by Martin Senftleben (Professor of Intellectual Property, VU University Amsterdam, and Senior Consultant to Bird & Bird, The Hague).

The rubric accompanying Version Zero (which you can read below) states that a future face-to-face meeting to finalise the memorandum is planned but not yet scheduled.  Consumers of other people's quotes -- and that includes most serious legal bloggers -- are invited to add their comments on the text below, where they will be taken into account in the development of the agreed version 1.0 of the memorandum. The draft memorandum can be downloaded as a PDF here; Professor Senftleben's commentary can be downloaded here.

This blogger is certainly in sympathy with the aims listed in the Memorandum's Preamble, though he must confess that, in his entire career as an academic, a writer, a publisher and a blogger, he has never been challenged in the use which he has made of any of quotations. It would be good to know how substantial the problem is.

Memorandum of Understanding Concerning the Interpretation of the Right of Quotation

Version zero, September 2012

Preamble [commentary]

The Signatories,
Acknowledging the outstanding significance of the protection of copyright and related rights as an incentive for investment in the creation and dissemination of literary and artistic works,
Acknowledging the mandatory nature of the right of quotation,
Recognizing the need to carry forward and appropriately extend the right of quotation into the digital environment,
Recognizing the fundamental role of the right of quotation in safeguarding freedom of expression and freedom of information,
Recognizing the need to maintain a balance between these freedoms and the protection of copyright and related rights,
Seeking to reduce legal uncertainty as to the scope and reach of the right of quotation,
Seeking to contribute to the consistent application of the right of quotation across EU Member States,
Have agreed on the following


Concept of quotation [commentary]
  1. The term "quotation" is to be given a broad meaning, in the sense of a reference to protected material not necessarily requiring a description, comment or analysis.
Quotation purposes [commentary]
  1. Quotations are permissible for the purposes of criticism, comment and review.
  1. Quotations shall be permissible for the purpose of including pre-existing protected material in a new cultural creation, such as user-generated content.
  1. Quotations shall be permissible in the context of an announcement, such as the display of protected material to inform users about contents available on the internet.
  1. Quotations shall also be permissible for comparable purposes, in particular for safeguarding freedom of expression and freedom of information, and for scientific and educational purposes.
Categories of works [commentary]
  1. The right of quotation shall apply to all categories of literary and artistic works, and other protected subject matter.
  1. In the application of the rules governing quotations, no difference shall be made between the categories of works or other subject matter involved.
Extent of the taking [commentary]
  1. Quotations shall not be restricted to the taking of small or short portions of protected material.
  1. However, the taking shall only be permissible to the extent justified by the purpose. In ascertaining this extent, the following factors shall be taken into account:
    1. the purpose and character of the use, including whether such use is of a commercial nature and takes place in a professional context,
    2. the nature of the protected material,
    3. the amount and substantiality of the portion used in relation to the individual protected material as a whole,
    4. the effect of the use upon the potential market for or value of the protected material.
  2. In particular, a quotation shall not be permissible if it substitutes the underlying protected material.
  1. A quotation shall not be deemed impermissible, however, because its critical content has a negative impact on the marketing of underlying protected material.
Rights and remuneration [commentary]
  1. The right of quotation constitutes a general exemption from infringement, in particular with regard to the right of reproduction and the right of communication to the public, including the right of making available on the Internet.
  1. It shall be permissible to make quotations without being obliged to pay fair compensation.
  1. However, the further dissemination of material including quotations may be subject to the payment of equitable remuneration if the revenue accruing from that dissemination, to a large extent, is due to the quoted works or other subject matter.
Requirements [commentary]
  1. Quotations are only permissible from material that has already been lawfully made available to the public.
  1. Unless this turns out to be impossible, the source, including the author's name, is to be indicated.
  1. For quotations to be permissible, it is not required that the material incorporating the quotations enjoys protection itself.


Andy J said...

An interesting proposal. I'm not sure how this MOU, and specifically recital 4, could be squared with previous decisions such as Infopaq and Meltwater.

Jørgen Blomqvist said...

There may also be reason to consider whether it is correct to refer to the alleged mandatory nature of the provision on quotation in the Berne Convention. As pointed out by, among others, Mihály Ficsor in WIPO's Guide to the Conventions Administered by WIPO, it is not mandatory. It is differently worded than other exceptions because that way it is directly applicable in those countries which give immediate effect to international treaties. The Berne Convention is based on a principle of minimum protection.