Det årlige opphavsrettskursetSandefjord, 19. mars 2015

Justifications of copyright revisited

Prof. Martin Senftleben VU University Amsterdam

Bird & Bird, The Hague

Social legitimacy of copyright

• interests of creators not only as a rhetorical

argument for justifying the continuous

broadening of exclusive rights

• copyright needs to be based on creators’

interests to remain credible and

understandable

• authors’ interests ≠ industry interests

• authors’ rights ≠ industry rights

Authors just a figurehead?

Introduction

Pierre Bourdieu

• Niklas Luhmann

• theory of relatively closed social systems

• each system has its own, distinct identity

• boundary between a system and its environment

• Pierre Bourdieu

• autonomous social spaces (‘fields’) with individual

rules, dominance structures and set of opinions

• but not isolated from surrounding fields and

processes

Theoretical Framework

Art, money, power

Constant internal fight

• competing players

– autonomous, independent artists

– bourgeois, dependent artists

• predominance and leadership

– dictating internal discourse

– consecration power

– quality standards

• constantly changing structure

nomos:

l’art pour l’art

Autonomy

Importance for society

• aesthetic theories: F. Schiller, T.W. Adorno

• alternative visions of society

– not mere confirmation and support of the status

quo, comfort in the rationalized world

– but mirror of the deficiencies of social, economic,

political conditions, opposition against the

existing reality

• result: utopian views of a better life that may

become drivers of social change

Autonomy

• depends on the degree of discourse and

consecration power of independent,

autonomous artists

• predominance of dependent, profit-oriented

mainstream artists endangers autonomy of

the literary and artistic field

• current crisis because of continuously

growing power of commercial players

Copyright

Rationales of protection

• incentive (utilitarian approach)

• reward (natural law approach)

• thus: focus on financial benefits

– aligned with interests of dependent, bourgeois

mainstream artists?

– neglecting the interests of independent,

autonomous artists?

– enticing autonomous artists away from the l’art

pour l’art logic of the field?

• newcomers within the group of autonomous artists

• for a new avant-garde movement, the predominant

rules must be criticized

avant-garde

arrière-garde

Other features of the system

Andy Warhol

idea/ expression dichotomy

quotation, parody

use for educational purposes

Central support features

exploitation rights ensuring constant

supply of commercial productions

limitations supporting constant evolution of

new avant-garde movements

Copyright ‘neutrality’

Impact on the concept

of authors’ rights

not only right to commercially exploit

own works

(bourgeois authors)

but also right to transformative use of

the works of others

(autonomous authors)

Copyright ‘neutrality’

broad exclusive

rights

exhaustive enumeration of

exceptions

three-step test

EU acquis (InfoSoc Directive)

‘The exceptions and limitations provided for in

paragraphs 1, 2, 3 and 4 shall only be applied

in certain special cases which do not conflict

with a normal exploitation of the work or other

subject-matter and do not unreasonably

prejudice the legitimate interests of the

rightholder.’

Art. 5(5) InfoSoc Directive

CJEU, Deckmyn

‘In addition, as stated in recital 31 in the preamble

to Directive 2001/29, the exceptions to the rights

set out in Articles 2 and 3 of that directive, which

are provided for under Article 5 thereof, seek to

achieve a ‘fair balance’ between, in particular, the

rights and interests of authors on the one hand,

and the rights of users of protected subject-matter

on the other.’ (para. 26)

CJEU, Deckmyn

Impact on

remuneration

mechanisms

winning in economic terms

= losing in artistic

terms

Autonomous authors eligible at all?

Fair remuneration legislation

• German Copyright Contract Act 2002

• grant of a right to fair remuneration

– contract modification in case of insufficient

remuneration

– difficulty of providing evidence of customary

remuneration in a given sector

• author association/industry negotiations

• common remuneration rules as evidence of

a fair remuneration standard

ex post remuneration claim

(autonomous authors)

ex ante remuneration claim(bourgeois authors)

Different focus

Impact on

repartitioning schemes

of collecting societies

repartitioning based on market share

(in favour of bourgeois authors)

cross-financing of ‘true’ works of art

(in favour of autonomous authors)

Subsidies for autonomous authors?

The end. Thank you!For publications, search for

‘senftleben’ on www.ssrn.com.

contact: m.r.f.senftleben@vu.nl