Rights and Remuneration in the Light of Bourdieu and... · – 2 – then, depends on the extent to...

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Martin Senftleben*

Copyright and Creators’ Interests – Rights and Remuneration in the Lightof Bourdieu’s Analysis of the Field of Literary and Artistic Production

The present copyright system is intended to provide an incentive for authors to invest moretime and effort in the creation of literary and artistic works (utilitarian argument), recognizethe acquisition of a property right as a result of creative labour (natural law argument) andenhance authors’ freedom of expression by offering a source of income that is independent ofpatronage and sponsorship (free expression argument). These arguments may be combinedwith considerations of industry policy, such as the growth of the creative andtelecommunication industries, and the creation of jobs in these industries.1 The basis of allthese lines of reasoning, however, is the individual creator. Without the constant efforts ofcreators, there would be no new literature and art to fuel the publication and disseminationmachinery of the industry. A focus on the position of the individual creator also ensures theacceptance of copyright law in society. It adds social legitimacy. Who would be againstremunerating authors for the time and effort spent on the creation of a new work?

Given the core rationale to encourage and reward creators, the question arises whether thepresent copyright system is sufficiently aligned with creators’ interests. To lay theoreticalgroundwork for this inquiry, Pierre Bourdieu’s sociological analysis of the field of literaryand artistic production will be taken as a starting point (following section 1). Thissociological analysis yields important insights into the interests of different groups ofcreators. On this basis, the various arguments for copyright protection will be revisited(section 2) before embarking on a critical analysis of the present system of authors’ exclusiverights (section 3) and copyright’s remuneration mechanisms (section 4). The analysis willfinally trace the conceptual contours of a copyright system in which creators’ interests wouldfeature more prominently than in the present system (concluding section 5).

1. The Field of Literary and Artistic Production

Refining Niklas Luhmann’s concept of relatively closed social systems with a distinct identityand a boundary between them and their environment,2 Pierre Bourdieu developed the conceptof ‘fields’ in society. Although constituting an autonomous social space with its own rules,dominance structures and established set of opinions, a field is not isolated from other socialspaces and processes surrounding it. The structure of a field results from constant internalfights of competing players for predominance and leadership.3 A field’s degree of autonomy,

* Ph.D.; Professor of Intellectual Property and Director, Kooijmans Institute for Law and Governance, VUUniversity Amsterdam; Of Counsel, Bird & Bird, The Hague. I would like to thank Jeremy de Beer, DevGangjee, Christophe Geiger, Rebecca Giblin, Caroline Ncube, Tony Reese and Kimberlee Weatherall for theirvaluable comments on a previous draft.1 For an example of this line of argument in legislation, see Recital 4 of Directive 2001/29/EC of the EuropeanParliament and of the Council of 22 May 2001, on the harmonisation of certain aspects of copyright and relatedrights in the information society (OJ 2001 L 167, 10).2 N. Luhmann, Soziale Systeme: Grundriss einer allgemeinen Theorie, Frankfurt/Main: Suhrkamp 1984.3 P. Bourdieu, ‘Die Logik der Felder’, in: P. Bourdieu/L.J.D. Wacquant (eds.) Reflexive Anthropologie,Frankfurt/Main: Suhrkamp 1996, p. 124 (134-135); P. Bourdieu, Die Regeln der Kunst. Genese und Struktur des

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then, depends on the extent to which external players can influence these internal fights.External factors may have a deep impact on a field’s constitution.4 Given the continuouschange of power relations, the structure of a social field is not static and fixed. By contrast, afield has its own history reflecting different stages of development – from the field’s genesisas a social space with far-reaching autonomy to the potential loss of this autonomous positionas a result of powerful external influences.5 For the analysis of a given field, it is thusnecessary to examine its relationship with the social environment in which it is embedded at agiven point in time.

Applying this theoretical model to the field of literary and artistic production, Bourdieuassumes that the field’s autonomy rests on the rejection of the capitalism of the bourgeoisie.The field of literature and art militates against the bourgeois logic of profit maximization bydeveloping its own, independent logic. This specific ‘nomos’ of the literary and artistic fieldlies in the independence from economic and political powers.6 Instead of striving forcommercial success, an autonomous literary or artistic production aims at internal recognitionwithin the field. It emancipates itself from the focus on monetary success and honoursawarded by the bourgeois society.7 As a result of this nomos, the consecration mechanisms inthe literary and artistic field – the power to set quality standards and dominate the internaldiscourse – become self-referential: l’art pour l’art. The field of literature and art becomes auniverse countering the profit logic that impregnates the economic and political discourse.The break with the ruling powers constitutes the basis of an artist’s independent, autonomousexistence.8 Autonomous literature and art is a provocation. It challenges the pervasive‘economism’ in society.9

It follows from this configuration of the literary and artistic field that an artist seeking to gainrecognition amongst peers must not align her work with the tastes of the masses and producemainstream works in the hope of commercial success. This would be perceived as aconcession to the predominant profit orientation of society. By contrast, the renunciation ofcommercial interests and the focus on the internal quality standards within the literary andartistic field testify to an artist’s genuinely literary and artistic orientation. In consequence, thefield generates a peculiar reverse economy. An artist can only win recognition in the field ofliterature and art by losing on the territory of monetary rewards: the one who loses (ineconomic terms), wins (in artistic terms).10

This reverse economy also determines the structure of the field of literature and art. As longas the field is autonomous, the highest positions will be held by those artists turning their backon the bourgeois economy and the prospect of commercial gains. The degree of the field’sautonomy, in other words, depends on whether independent artists striving for recognitionwithin the field (limited production for other independent artists), or dependent artists striving

literarischen Feldes, Frankfurt/Main: Suhrkamp 1999 (French original: P. Bourdieu, Les règles de l’art. Genèseet structure du champ littéraire, Paris: Éditions du Seuil 1992), p. 253-255 and 368.4 P. Bourdieu/R. Chartier/R. Darnton, ‘Dialog über die Kulturgeschichte’, Freibeuter – Vierteljahreszeitschriftfür Kultur und Politik 26 (1985), p. 22 (28).5 Bourdieu 1996, 134; J. Jurt, Bourdieu, Stuttgart: Reclam 2008, p. 91-92.6 Bourdieu 1992/1999, supra note 3, p. 103-105.7 Bourdieu ibid., p. 344.8 Bourdieu ibid., p. 105.9 Bourdieu ibid., p. 342.10 Bourdieu ibid., p. 136 and 344-345.

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for recognition outside the field (mainstream production for the masses), hold the highesthierarchical positions.11

Accordingly, the fight for predominance and leadership in the literary and artistic field is afight between autonomous/independent and bourgeois/dependent artists for the power to setquality standards and dictate the internal discourse.12 The stronger the position of dependent,profit-oriented artists in this fight, the bigger is the influence of external economic andpolitical players on the structure of the literary and artistic field, and the lower is the field’sautonomy.13

On the basis of this analysis of the power relations in the literary and artistic field, Bourdieupaints an alarming picture of the field’s current degree of autonomy. In the light of reducedstate subsidies for cultural productions and the rise of culture sponsoring by enterprises, hewarns of an increasing mutual penetration of the world of art and the world of money: moreand more literary and artistic productions become subject to entrepreneurial marketingstrategies and commercial pressures.14 With the growing influence of external players andprofit rationales, the distinction between autonomous, independent productions andcommercial, dependent productions is increasingly blurred. To a growing extent, the profitlogic of commercial productions also prevails in avant-garde works.15 Therefore, theautonomy of the field of literature and art is currently at risk.16

2. The Rationales of Copyright Revisited

In the light of this analysis, the role of copyright in the field of literary and artistic productionseems ambiguous. As already indicated, utilitarian copyright theory regards copyright as avehicle to encourage the creation of literary and artistic works by providing an economicstimulus: the promise of monetary rewards is offered to authors as an incentive to create newworks.17 From the perspective of Bourdieu’s analysis, this utilitarian incentive rationale isquestionable. It may enhance the productivity of dependent artists who share the profitorientation of the bourgeois society. Artists following the specific l’art pour l’art nomos ofthe literary and artistic field, by contrast, are primarily interested in reputational rewards.They aim at recognition amongst peers. The prospect of a solid income accruing from theexploitation of commercially successful works may undermine their focus on theestablishment of a reputation within the artist community. The incentive scheme underlyingcopyright law thus appears as a risk factor. It may entice autonomous artists away from the

11 Bourdieu ibid., p. 344-345.12 Bourdieu 1992/1999, supra note 3, p. 198-203. Within the group of autonomous, independent artists,Bourdieu, ibid., p. 198, 253-255 and 379-380, also describes a further fight between established artists presentlyholding the consecration and discourse power, and upcoming avant-garde artists challenging this establishedposition.13 Bourdieu ibid., p. 344.14 Bourdieu ibid., p. 530.15 Bourdieu ibid., p. 531.16 Bourdieu ibid., p. 533.17 F. I. Michelman, ‘Property, Utility, and Fairness: Comments on the Ethical Foundations of “JustCompensation” Law’, Harvard Law Review 80 (1967), p. 1165 (1211); S.P. Calandrillo, ‘An Economic Analysisof Property Rights in Information: Justifications and Problems of Exclusive Rights, Incentives to GenerateInformation, and the Alternative of a Government-Run Reward System’, Fordham Intellectual Property Media& Entertainment Law Journal 9 (1998), p. 301 (310-312); P.E. Geller, ‘Must Copyright Be For Ever CaughtBetween Marketplace and Authorship Norms?’, in: B. Sherman/A. Strowel, Of Authors and Origins, Oxford:Clarendon Press 1994, p. 159 (159 and 164-166).

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independent l’art pour l’art logic of the literary and artistic field. The offer of copyrightseems to be not only a bait to spur creativity but also an attempt to persuade autonomousartists to spend time and effort on the production of mainstream works.

A less critical picture can be drawn on the basis of the natural law argument. This copyrighttheory posits that the author acquires a property right in her work by virtue of the mere act ofcreation.18 As the author spends time and effort on the creation of a work, it is deemed rightand just to afford her the opportunity to reap the fruit of this creative labour.19 Copyright lawmerely recognizes formally what has already occurred in the course of the act of creation.This approach is less directly linked with an incentive scheme. Continental-European droitd’auteur systems following the natural law approach do not only provide strong economicrights but also strong moral rights allowing an author to safeguard the unbreakable bond withher work as a materialization of her personality.20 Nonetheless, the concept of recognizingcopyright as a reward for creative labour leads to a comparable dilemma. It implies that theauthor derives financial benefits from the exclusive entitlement to exploit a work. This rewardmechanism favours commercially exploitable productions. It seems tailored to the interests ofprofit-oriented, dependent artists. Autonomous authors striving for reputational rewardswithin their own community are less likely to create works that generate substantial royaltyrevenue. Accordingly, the exploitation opportunity secured by copyright law offers much lesssupport for their creative efforts.

Finally, even the freedom of expression argument for copyright protection appears doubtful inthe light of Bourdieu’s analysis. According to this line of reasoning, copyright protectionensures authors’ independence from any kind of patronage potentially seeking to restrict theirfreedom of expression. With the grant of copyright, authors obtain the opportunity to exploittheir works and acquire a source of income that is independent of patronage and other formsof sponsoring.21 Truly independent authors in the sense of Bourdieu’s analysis, however, aimat recognition among other independent authors who also renounce the profit orientation ofthe bourgeoisie. At the crucial early stage of a career in the area of literary and artisticproduction, the contribution of copyright to an autonomous artist’s individual freedom ofexpression is thus likely to remain limited. In many cases, autonomous artists will havedifficulty to derive substantial financial benefits from copyright protection. Dependent artistswith a commercial mainstream orientation, by contrast, will have much less difficulty togenerate a solid income. This bourgeois group of artists, however, follows market dictatesanyway. Their production is not independent in the sense of the specific l’art pour l’artnomos of the literary and artistic field. Strictly speaking, market-oriented artists would noteven need copyright to ensure freedom of patronage because they are not striving for

18 H. Desbois, Le droit d’auteur en France, 2nd edn. – mise a jour 1973, Paris: Dalloz 1978, p. 538; H. Hubmann,‘Die Idee vom geistigen Eigentum, die Rechtsprechung des Bundesverfassungsgerichts und dieUrheberrechtsnovelle von 1985’, Zeitschrift für Urheber- und Medienrecht 1988, p. 4 (5).19 F.W. Grosheide, Auteursrecht op Maat, Deventer: Kluwer 1986, p. 128 (argument B).20 As to continental-European moral rights theory, see Geller, supra note 17, p. 169-170; A. Strowel, ‘Droitd’auteur and Copyright: Between History and Nature’, in: B. Sherman/A. Strowel, Of Authors and Origins,Oxford: Clarendon Press 1994, p. 235 (236-237); B. Edelman, ‘The Law’s Eye: Nature and Copyright’, in: B.Sherman/A. Strowel, Of Authors and Origins, Oxford: Clarendon Press 1994, p. 79 (82-87); E. Ulmer, Urheber-und Verlagsrecht, Berlin/Heidelberg/New York: Springer 1980, p. 110-111. See Desbois 1978, supra note 18, p.538: ‘L’auteur est protégé comme tel, en qualité de créateur, parce qu’un lien l’unit à l’objet de sa création.’21 N.W. Netanel, ‘Copyright and a Democratic Civil Society’, Yale Law Journal 106 (1996), p. 283 (288):‘Copyright supports a sector of creative and communicative activity that is relatively free from reliance on statesubsidy, elite patronage, and cultural hierarchy.’ For an in-depth analysis of this argument, see moreover N.W.Netanel, Copyright’s Paradox, New York: Oxford University Press 2008.

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independence of commercial influences in the first place. For autonomous artists requiring anextra income to keep their focus on independent productions, however, copyright has little tooffer unless their fame within the group of autonomous artists allows them to translate thisinternal reputation into monetary rewards on the art market.

Hence, it seems difficult to reconcile the standard rationales of copyright protection with themaxim of l’art pour l’art in the field of literary and artistic production. By definition,copyright seeks to provide the opportunity to commercially exploit literary and artistic works.Because of the peculiar reverse economy described by Bourdieu – winning in economic termsmeans losing in artistic terms – this focus on a work’s exploitation misses the point. Bydefinition, monetary rewards cannot support autonomous artists in their efforts to gainrecognition among their peers. Instead of supporting independent creations, the prospect ofcommercial exploitation is likely to further mainstream productions that may erode theautonomy of the literary and artistic field.22

Nonetheless, the examination of copyright law in the light of Bourdieu’s analysis need notend here. Firstly, copyright law can hardly be expected to take a position in the fight betweenautonomous/independent and bourgeois/dependent authors for predominance, leadership andconsecration power in the literary and artistic field. As long as copyright law remains neutralin the sense that it offers support for the specific modes of production of both competinggroups, it does not alter the rules of the power struggle and does not favour one camp over theother. Secondly, it must not be overlooked that the grant of exclusive exploitation rights, eventhough constituting a central element of present copyright law, is not the only feature of theprotection system. If the grant of rights is of particular importance to bourgeois creators witha profit orientation, the question arises whether other features of copyright law keep thesystem in balance by offering support for autonomous artists following the l’art pour l’artnomos of the literary and artistic field. The aforementioned moral rights of authors, includingthe right of attribution and the right to prevent derogatory actions,23 can serve as an exampleof rules that may be of particular relevance to autonomous authors seeking to preserve theintegrity of their artistic creations. Commercially-oriented authors may have less difficulty toaccept modifications of their works as long as they increase exploitation revenues.

Other copyright rules that offer support for autonomous productions enter the picture onceBourdieu’s description of fights for power and predominance within the community ofautonomous artists is taken into consideration. Apart from the competition betweenautonomous and bourgeois artists that defines the level of autonomy of the literary and artisticfield as a whole, Bourdieu also describes internal fights within the group of autonomousartists. In this community, newcomers can only establish a new school of thought by rebellingagainst the rules established by the generation of autonomous artists that is presently inpower. The new generation must challenge existing convictions to obtain the power to set itsown quality standards and dictate the discourse. It must degrade the ruling avant-garde to anarrière-garde. Otherwise, there is no room for new directions in the creation of autonomousliterary and artistic productions. Once a new school has taken over the consecration power, it

22 With regard to the impact of continuous expansions of copyright on different kinds of creation strategies, seealso Y. Benkler, ‘Free as the Air to Common Use: First Amendment Constraints on Enclosure of the PublicDomain’, New York University Law Review 74 (1999), p. 354.23 See the international recognition of moral rights in Article 6bis BC. As to the recognition of these rights inAnglo-American countries, see G. Dworkin, ‘The Moral Right of the Author: Moral Rights and the CommonLaw Countries’, Columbia-VLA Journal of Law&Arts 19 (1995), p. 229.

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faces the same internal challenges and will finally also be superseded by a new avant-garde.24

The constant evolution of fresh, autonomous avant-garde productions thus depends onmechanisms that allow new generations of autonomous authors to legitimize theirunorthodox, new approach by criticizing the dogmata of the predominant school of thought.

Interestingly, Bourdieu’s analysis of this internal fight within the group of autonomous artistsleads to the insight that the room for possible new positions in the creation of independent art– the range of options available for the establishment of a new avant-garde – depends on thepositions that have already been taken by previous artists.25 For a new generation to challengethe leading avant-garde, it must detect the structural gaps within the texture of already knownaesthetic positions. It must formulate an alternative artistic position in the light of theweaknesses and contradictions of the present state of the art.26 The room between thepositions that have already been taken in the literary and artistic field thus constitute potentialstarting points for an artistic revolution.

Copyright law can support this constant process of renewal within the group of autonomousartists by guaranteeing certain user freedoms. To be capable of challenging establishedpositions, an autonomous artist must be free to dissociate herself from the dogmata set forthby her predecessors. The law can thus enable a new generation of artists to destruct anestablished order and erect a new one by exempting the use of protected, pre-existing worksfor the formulation of a new aesthetic position. The idea/expression dichotomy27 ensures thatthe ideas and concepts underlying literary and artistic works remain free for this purpose. Thefreedom to refer to earlier creations, for example in quotations and parodies,28 allows a newgeneration to criticize the currently prevailing school of thought. In this way, newautonomous artists can demarcate their new position from previous ones. They can lay thefoundations for a new avant-garde movement by defining their own position in relation to pre-existing works.

Apart from the freedom to use and criticize pre-existing works in the process of defining anddemarcating a new aesthetic position, Bourdieu’s analysis highlights a further freedom of usethat is crucial to the process of constant renewal in the area of autonomous l’art pour l’artproductions. To allow a new generation of autonomous authors to formulate a new aestheticposition, these newcomers must first learn of the positions that have already been taken byprevious independent artists. Unless they master the history of their particular art and knowthe heritage of former generations of artists, they are inhibited from detecting structural gapsthat allow them to take a legitimate and plausible next step in the evolution of literary andartistic productions.29 Therefore, the guarantee of freedom to use pre-existing material for thecreation of new avant-garde works is only one way in which copyright law can support theprocess of aesthetic renewal. In addition, copyright law can support the evolution of new

24 Bourdieu 1992/1999, supra note 3, p. 253-255.25 Bourdieu 1992/1999, 370.26 Bourdieu 1992/1999, 372.27 Art. 9(2) TRIPS; Art. 2 WCT.28 See the international recognition of the right of quotation in Article 10(1) BC. As to the inclusion of parody inthis broad quotation concept, see A.A. Quaedvlieg, ‘De parodiërende nabootsing als een bijzondere vorm vangeoorloofd citaat’, RM Themis 1987, p. 279. For an example of the development of the right of quotation in anational copyright system, see M.R.F. Senftleben, ‘Quotations, Parody and Fair Use’, in: P.B. Hugenholtz/A.A.Quaedvlieg/D.J.G. Visser (eds.), A Century of Dutch Copyright Law – Auteurswet 1912-2012, Amstelveen:deLex 2012, p. 359, online available at http://ssrn.com/abstract=2125021.29 Bourdieu 1992/1999, 385.

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avant-garde movements by exempting the use of existing works for educational purposes andprivate study – exemptions that allow new generations of autonomous artists to explore thecultural landscape and find starting points for the articulation of new positions that challengeand supersede established convictions.

Hence, an examination of copyright law in the light of Bourdieu’s sociological analysis of thefield of literary and artistic production sheds light on various features of the protectionsystem. While the grant of exclusive exploitation rights is central to profit-oriented, dependentauthors, freedom to learn of pre-existing works and freedom to use and criticize them for thepurpose of establishing a new avant-garde movement is of particular importance to authorswith an autonomous, independent orientation.30 From this perspective, it becomes clear thatan appropriate amalgam of rights and freedoms in copyright law is required to ensure abalanced position of the protection system within the field of literary and artistic production.For copyright law to remain neutral in the ongoing fight between bourgeois and autonomousartists for the power to set quality standards and dictate the discourse in the field, it must offerroom for the specific needs of both groups: exploitation rights as a bait for bourgeois authorsand user freedoms as a precondition for the constant evolution of autonomous avant-gardemovements. By granting exploitation rights on the one hand, and guaranteeing the freedom toexplore the cultural landscape and criticize pre-existing works on the other, copyright law cansupport both bourgeois and autonomous productions, and contribute to diversity in the field ofliterature and art.31 It furthers the progress of the creative efforts of both groups – bourgeoisand autonomous creators alike.

3. A Broader Concept of Authors’ Rights

The insight that the field of literary and artistic production is shaped by a power strugglebetween two distinct groups of authors – bourgeois authors striving for monetary rewards andautonomous authors striving for reputational rewards – has important repercussions on theconceptualization of authors’ rights. It necessitates a change in the understanding of the rightsto be guaranteed in copyright law. In fact, the term “copyright” as such becomes doubtful andappears misleading from this perspective. Considering Bourdieu’s analysis, “copyright” mustnot content itself with safeguarding an author’s exploitation interests. This traditional conceptof exclusive rights focuses on the profit orientation of bourgeois authors and the creativeindustry. However, it neglects the dependence of autonomous artists on freedom to use pre-existing works for the purpose of developing a new avant-garde.

For copyright to remain neutral in the fight for predominance in the field of literary andartistic production, it must not only guarantee exploitation rights for bourgeois authors butalso several rights of use for autonomous authors. The concept of authors’ rights must

30 It must not be overlooked in this context that Bourdieu’s analysis – with the two poles of purely bourgeoisauthors on one side of the spectrum, and purely autonomous authors on the other – is a theoretical model. Theconclusion drawn here, accordingly, is based on this strict theoretical distinction between the two groups. Inreality, creators are not unlikely to strive for both rewards – monetary and reputational – at least to some extent.To varying degrees, creators may thus, in practice, appreciate the existence of both rights and freedoms.Depending on their individual position between the two poles of purely bourgeois and purely autonomousauthors, they will attach more importance to exploitation rights than user freedoms and vice versa.31 For a further analysis of copyright law as an engine of cultural diversity, see N.W. Netanel, Copyright’sParadox, New York: Oxford University Press 2008, p. 195-199; Y. Benkler, ‘Free as the Air to Common Use:First Amendment Constraints on Enclosure of the Public Domain’, New York University Law Review 74 (1999),p. 354 (400-412).

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encompass exploitation rights and use privileges alike: a right to control consumptive use forbourgeois authors and a right to make transformative use for autonomous authors.32 Thepresent copyright system already complies with this broader conception of authors’ rightswhen drawing a boundary line between protected individual expression on the one hand, andunprotected ideas and concepts on the other.33 The protection of individual expression allowsbourgeois authors to control consumptive copying and derive profit from the work. Thefreedom of ideas allows autonomous authors to use the reservoir of pre-existing works as asource of inspiration for the development and definition of a new artistic position.

However, the outlined broader concept of authors’ rights – a right to control consumptive usefor bourgeois authors and a right to make transformative use for autonomous authors –challenges the approach to limitations of exclusive exploitation rights in the present copyrightsystem. Insofar as broad, flexible exploitation rights are regarded as the rule in copyright law,and limitations of these rights are perceived as exceptions that must be construed and appliedrestrictively,34 the broader concept of authors’ rights requires substantial changes:35 useprivileges supporting the creative destruction of works for the purpose of initiating a newavant-garde movement, such as the exemption of quotations and parodies, must not bequalified as copyright limitations in the first place. They are an author’s right to criticize pre-existing literary and artistic expression to create room for the formulation of a new artisticposition. Hence, certain use privileges that are seen as copyright limitations in the presentsystem would have to be redefined as authors’ rights36 to avoid a bias impeding the process ofcreative destruction in the area of autonomous literary and artistic productions.

Interestingly, international copyright law can serve as a point of departure for thisredefinition. With regard to quotations, the Berne Convention, in its prevailing Frenchversion,37 states: “[s]ont licites les citations tirées d’une œuvre…”38 This formulation can beunderstood as an obligation of Berne Union members to exempt quotations from the controlof the owner of copyright in the underlying work. A mere option to limit copyright in certainrespects is expressed differently in the Convention: “[e]st réservée aux législations des pays

32 Transformative use is understood here in the sense of a productive use that aims to employ a protected work ina different manner or for a different purpose, such as the critique of the work or its adaptation to achieve adifferent artistic effect. It is use transforming the original in new information, new aesthetics, new insights andunderstandings. For a similar concept developed in the context of the U.S. fair use doctrine, see P.N. Leval,‘Toward a Fair Use Standard’, Harvard Law Review 103 (1990), p. 1105 (1111).33 Art. 9(2) TRIPS; Art. 2 WCT.34 This traditional dogma of the restrictive interpretation of copyright limitations can be found, for instance, inEU copyright systems. For instance, see CJEU, 16 July 2009, case C-5/08, Infopaq International/DanskeDagblades Forening, para. 56-58.35 On the basis of similar considerations, C. Geiger, ‘Promoting Creativity through Copyright Limitations:Reflections on the Concept of Exclusivity in Copyright Law’, Vanderbilt Journal of Entertainment andTechnology Law 12 (2010), p. 515 (532-533), argues for introducing a wider limitation for creative uses andconverting traditional exploitation rights to prohibit the use of copyrighted works into a right to receive a fairremuneration.36 Cf. C. Geiger, ‘Die Schranken des Urheberrechts im Lichte der Grundrechte – Zur Rechtsnatur derBeschränkungen des Urheberrechts’, in: R.M. Hilty/A. Peukert, Interessenausgleich im Urheberrecht, Baden-Baden: Nomos 2004, 143 (147-150); M.R.F. Senftleben, ‘Die Bedeutung der Schranken des Urheberrechts in derInformationsgesellschaft und ihre Begrenzung durch den Dreistufentest’, in: R.M. Hilty/A. Peukert,Interessenausgleich im Urheberrecht, Baden-Baden: Nomos 2004, 159 (167-170).37 According to Art. 37(1)(c) BC, the French text prevails in case of differences of opinion on theinterpretation of the various language versions.38 Art. 10(1) BC.

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de l’Union la faculté de permettre…”39 The English text confirms this analysis. Stating that“[i]t shall be permissible to make quotations from a work…”, the English version leaves littledoubt about the nature of the quotation right. The exemption is mandatory and not optional.member states are not only under an obligation to grant exclusive exploitation rights. Tocomply with the Berne Convention, they must also grant the right of quotation. This latterright does not serve the purpose of controlling the consumptive use of a work. It is a right tobe invoked by an author seeking to include parts of pre-existing works in her own literary andartistic creations. If parody is qualified as a particular species of quotation,40 it also fallswithin the scope of this guarantee of a right to transformative use in the Berne Convention.

In spite of this international framework, the use privilege of making quotations and parodies isstill qualified and treated as a regular copyright limitation in national copyright laws. EUlegislation, for instance, does not make it clear that the adoption of the right of quotation andthe right of parody is mandatory for all member states.41 Moreover, the EU legislator saw noneed to ensure that these rights prevail over the protection of technological protectionmeasures,42 and escape further scrutiny in the light of the three-step test.43 According to Art.13 TRIPS and Art. 10 WCT, the scope of the three-step test is confined to limitations imposedon the exclusive rights of copyright owners:

Members shall confine limitations or exceptions to exclusive rights to certain special caseswhich do not conflict with a normal exploitation of the work and do not unreasonablyprejudice the legitimate interests of the right holder.44

39 This formulation is used in Arts. 9(2), 10(2) 10bis(1) and (2) BC.40 In this sense A.A. Quaedvlieg, ‘De parodiërende nabootsing als een bijzondere vorm van geoorloofd citaat’,RM Themis 1987, p. 279 (285 and 288); M.R.F. Senftleben, ‘Quotations, Parody and Fair Use’, in: P.B.Hugenholtz/A.A. Quaedvlieg/D.J.G. Visser (eds.), A Century of Dutch Copyright Law – Auteurswet 1912-2012,Amstelveen: deLex 2012, p. 359 (363).41 In contrast to the mandatory exemption of transient copying in Art. 5(1) of the Information Society Directive2001/29, the adoption of Art. 5(3)(d) and (k) of the Directive is not mandatory.42 By contrast, Art. 6(4) of the Information Society Directive 2001/29 fails to shield the right of quotation and theright of parody from the potential corrosive effect of technological protection measures.43 Art. 5(5) of the Information Society Directive 2001/29. For a discussion of the role of the three-step test in EUcopyright law, see M.R.F. Senftleben, ‘Comparative Approaches to Fair Use: An Important Impulse for Reformsin EU Copyright Law’, in: G.B. Dinwoodie (ed.), Methods and Perspectives in Intellectual Property,Cheltenham: Edward Elgar 2013, p. 30; J. Griffiths, ‘The „Three-Step Test“ in European Copyright Law –Problems and Solutions’, Intellectual Property Quarterly 2009, p. 489; C. Geiger, ‘The Three-Step Test, aThreat to a Balanced Copyright Law?’, International Review of Intellectual Property and Competition Law2006, p. 683. As to guidelines for the appropriate application of the test, see C. Geiger/J. Griffiths/R.M. Hilty,‘Declaration on a Balanced Interpretation of the “Three-Step Test” in Copyright Law’, International Review ofIntellectual Property and Competition Law 2008, p. 707; M.R.F. Senftleben, Copyright, Limitations and theThree-Step Test – An Analysis of the Three-Step Test in International and EC Copyright Law, TheHague/London/New York: Kluwer Law International 2004.44 Art. 13 TRIPS. The provision was modelled on the first three-step test in international copyright law enshrinedin Art. 9(2) BC. After the TRIPS Agreement, the test reappeared in Art. 10 WCT. For a discussion of the test’sdevelopment in international copyright law and its interpretation by WTO Panels, see C. Geiger/D.Gervais/M.R.F. Senftleben, ‘The Three-Step Test Revisited: How to Use the Test’s Flexibility in NationalCopyright Law’, American University International Law Review 29 (2014), p. 581; D. Gervais, ‘Fair Use, FairDealing, Fair Principles: Efforts to Conceptualize Exceptions and Limitations to Copyright’, Journal of theCopyright Society of the U.S.A. 57 (2009-2010), p. 499 (510-511); A. Kur, ‘Of Oceans, Islands, and InlandWater – How Much Room for Exceptions and Limitations Under the Three-Step Test?’, Richmond Journal ofGlobal Law and Business 8 (2009), p. 287 (307-308); M.R.F. Senftleben, ‘Towards a Horizontal Standard forLimiting Intellectual Property Rights? – WTO Panel Reports Shed Light on the Three-Step Test in CopyrightLaw and Related Tests in Patent and Trademark Law’, International Review of Intellectual Property andCompetition Law 37 (2006), p. 407; S. Ricketson/J.C. Ginsburg, International Copyright and Neighbouring

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The redefinition of the exemption of quotations and parody as an author’s right totransformative use would thus have the effect of excluding these use privileges from the ambitof operation of the three-step test altogether. However, existing copyright statutes, such as EUcopyright legislation, do not support this more comprehensive conception of authors’ rights.

Nonetheless, the courts may provide considerable breathing space for certain forms oftransformative use, in particular quotations and parody. In the decision Infopaq/DDF, theCourt of Justice of the European Union (CJEU) adhered to the traditional dogma of a strictinterpretation of copyright limitations. Scrutinizing the mandatory exemption of transientcopies in Art. 5(1) of the Information Society Directive (ISD),45 the Court pointed out that forthe interpretation of each of the cumulative conditions of the limitation, it should be borne inmind

that, according to settled case-law, the provisions of a directive which derogate from ageneral principle established by that directive must be interpreted strictly […]. This holds truefor the exemption provided for in Article 5(1) of Directive 2001/29, which is a derogation fromthe general principle established by that directive, namely the requirement of authorisationfrom the rightholder for any reproduction of a protected work.46

According to the Court,

[t]his is all the more so given that the exemption must be interpreted in the light of Article 5(5)of Directive 2001/29, under which that exemption is to be applied only in certain special caseswhich do not conflict with a normal exploitation of the work or other subject-matter and donot unreasonably prejudice the legitimate interests of the rightholder.47

The CJEU thus established the rule that copyright limitations had to be construed narrowly. InFootball Association Premier League, however, this decision did not hinder the Court fromemphasizing with regard to the same exemption – transient copying in the sense of Article5(1) ISD – the need to guarantee the proper functioning of the limitation and ensure aninterpretation that takes due account of the exception’s objective and purpose. The Courtexplained that, in spite of the required strict interpretation, the effectiveness of the limitation

Rights – The Berne Convention and Beyond, Oxford: Oxford University Press 2006, p. 759-763; M.R.F.Senftleben, Copyright, Limitations and the Three-Step Test – An Analysis of the Three-Step Test in Internationaland EC Copyright Law, The Hague/London/New York: Kluwer Law International 2004, p. 43-244; M. Ficsor,‘How Much of What? The Three-Step Test and Its Application in Two Recent WTO Dispute Settlement Cases’,Revue Internationale du Droit d'Auteur 192 (2002), p. 111; J. Oliver, ‘Copyright in the WTO: The PanelDecision on the Three-Step Test’, Columbia Journal of Law and the Arts 25 (2002), p. 119; D.J. Brennan, ‘TheThree-Step Test Frenzy: Why the TRIPS Panel Decision might be considered Per Incuriam’, IntellectualProperty Quarterly 2002, p. 213; J. Reinbothe/S. v. Lewinski, The WIPO Treaties 1996 – The WIPO CopyrightTreaty and the WIPO Performances and Phonograms Treaty – Commentary and Legal Analysis, Butterworths2002; M. Ficsor, The Law of Copyright and the Internet – The 1996 WIPO Treaties, their Interpretation andImplementation, Oxford: Oxford University Press 2002; J. Ginsburg, ‘Toward Supranational Copyright Law?The WTO Panel Decision and the “Three-Step Test” for Copyright Exceptions’, Revue Internationale du Droitd'Auteur 190 (2001), p. 13.45 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, on the harmonisation ofcertain aspects of copyright and related rights in the information society (OJ 2001 L 167, 10).46 CJEU, 16 July 2009, case C-5/08, Infopaq International/Danske Dagblades Forening, para. 56-57.47 CJEU, ibid., para. 58.

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had to be safeguarded.48 On the basis of these considerations, the Court concluded that thetransient copying at issue in Football Association Premier League, performed within thememory of a satellite decoder and on a television screen, was compatible with the three-steptest of Article 5(5) ISD.49

For the purposes of the present inquiry, it is of particular interest that in Painer/Der Standard,the Court confirmed this line of argument with regard to the right of quotation laid down inArt. 5(3)(d) ISD. The Court underlined the need for an interpretation of the conditions setforth in Art. 5(3)(d) that enables the effectiveness of the quotation right and safeguards itspurpose.50 More specifically, it clarified that Article 5(3)(d) was

intended to strike a fair balance between the right of freedom of expression of users of a workor other protected subject-matter and the reproduction right conferred on authors.51

In its further decision in Deckmyn/Vandersteen, the CJEU followed the same path with regardto the parody exemption in Art. 5(3)(k) ISD. As in Painer/Der Standard, the Court bypassedthe dogma of a strict interpretation of copyright limitations by underlining the need to ensurethe effectiveness of the parody exemption52 as a means to balance copyright protection againstfreedom of expression.53

In practice, the courts may thus give copyright limitations that support transformative use astatus that comes close to an author’s right – even though the underlying copyright statute,such as the Information Society Directive in the EU, does not qualify these limitations asrights but includes them in the catalogue of exceptions to exclusive rights instead. As theexamples taken from CJEU jurisprudence demonstrate, the fundamental guarantee of freedomof expression plays a crucial role in this context.54 Relying on Art. 11 of the EU Charter ofFundamental Rights and Art. 10 of the European Convention on Human Rights, the CJEUcould interpret the quotation right and the parody exemption less strictly than limitationswithout a comparably strong freedom of speech underpinning. In both the Painer and theDeckmyn decision, the Court emphasized the need to achieve a “fair balance” between, inparticular, “the rights and interests of authors on the one hand, and the rights of users ofprotected subject-matter on the other.”55 The Court thus referred to quotations and parodies asuser “rights” rather than mere user “interests”.

48 CJEU, 4 October 2011, cases C-403/08 and C-429/08, Football Association Premier League/QC Leisure, para.162-163.49 CJEU, ibid., para. 181.50 CJEU, 1 December 2011, case C-145/10, Eva Maria Painer/Standard VerlagsGmbH, para. 132-133.51 CJEU, ibid., para. 134.52 CJEU, 3 September 2014, case C-201/13, Deckmyn and Vrijheidsfonds VZW/Vandersteen, para. 22-23.53 CJEU, ibid., para. 25-27.54 As to the influence of freedom of speech guarantees on copyright, cf. C. Geiger, ‘“Constitutionalising”Intellectual Property Law? The Influence of Fundamental Rights on Intellectual Property in the EuropeanUnion’, International Review of Intellectual Property and Competition Law 37 (2006), p. 371; A. Strowel/F.Tulkens/D. Voorhoof (eds.), Droit d’auteur et liberté d’expression, Brussels: Editions Larcier 2006; P.B.Hugenholtz, ‘Copyright and Freedom of Expression in Europe’, in: N. Elkin-Koren/N.W. Netanel (eds.), TheCommodification of Information, The Hague/London/Boston: Kluwer 2002, p. 239; S. Macciacchini,Urheberrecht und Meinungsfreiheit, Bern: Stämpfli 2000; Y. Benkler, ‘Free as the Air to Common Use: FirstAmendment Constraints on Enclosure of the Public Domain’, New York University Law Review 74 (1999), p.355; N.W. Netanel, ‘Copyright and a Democratic Civil Society’, Yale Law Journal 106 (1996), p. 283.55 CJEU, 1 December 2011, case C-145/10, Eva Maria Painer/Standard VerlagsGmbH, para. 132; CJEU, 3September 2014, case C-201/13, Deckmyn and Vrijheidsfonds VZW/Vandersteen, para. 26.

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Does this mean that there is no need for reforms? Does it mean that, in practice, the right oftransformative use already exists by virtue of court decisions, even though it is hidden in thecatalogue of exceptions in many national copyright statutes? For at least two reasons, theanswer to these questions need not be in the affirmative. First, a legislative reform thatremoves use privileges for transformative use from the catalogue of exceptions and openlyredefines them as authors’ rights – with the same status as traditional exploitation rights –would make the particular importance of these use privileges visible within the copyrightstatute itself. It would allow an internal balancing of different rights when the courts have todecide on quotations and parodies. This seems more satisfactory than the present practice ofbalancing copyright against freedom of expression as an external influence factor leading toan exceptionally broad application of a copyright limitation that, in principle, would have tobe construed narrowly.56

Second, it must not be overlooked that quotations and parodies are long-standing and well-established copyright limitations. The courts may have much more difficulty to arrive atsatisfactory solutions when it comes to other cases of transformative use that are not, or atleast less clearly, reflected in the catalogue of copyright limitations. With the constantevolution of new artistic practices, it cannot be ruled out that a bias against autonomous artproductions comes to the fore and that copyright law, in the absence of a formal recognitionof a right to transformative use, loses its neutrality in the ongoing power struggle betweenbourgeois and autonomous authors. Sound sampling artists, for instance, face copyrightclaims as well as neighbouring rights claims of phonogram producers. The more snippets ofpre-existing sound recordings they use, the higher will be the risk of infringement. The focuson the protection of exploitation interests in existing sound recordings may thus have adeterrent, corrosive effect on their creativity. In particular, this bias is likely to impede so-called “collage sampling” using layers of quantitatively or qualitatively insignificant parts ofpre-existing recordings to create new musical works.57 In contrast to traditional quotation andparody cases, the courts seem much more reluctant to make particular efforts to offer room fortransformative use in sound sampling cases.58 Other forms of collage art, such as film andphoto compositions, are likely to raise similar problems. The formal recognition of a right totransformative use in copyright law could thus make a difference in these cases – not only onpaper but also in practice.

56 With regard to the question of internal and external balancing exercises, see T. Dreier, ‘Balancing Proprietaryand Public Domain Interests: Inside or Outside of Proprietary Rights?’, in: R. Dreyfuss/D. Leenheer-Zimmerman/H. First (eds.), Expanding the Boundaries of Intellectual Property. Innovation Policy for theKnowledge Economy, Oxford: Oxford University Press 2001, p. 295.57 See D.M. Morrison, ‘Bridgeport Redux: Digital Sampling and Audience Recording’, Fordham IntellectualProperty Media and Entertainment Law Journal 19 (2008), p. 75 (96), who warns of a corrosive effect on the so-called “collage paradigm” in sampling.58 As to the preference given to exploitation interests instead, see, for instance, German Federal Court of Justice,13 December 2012, case I ZR 182/11, Metall auf Metall II, Gewerblicher Rechtsschutz und Urheberrecht 2013,p. 614; German Federal Court of Justice, 20 November 2008, case I ZR 112/06, Metall auf Metall, GewerblicherRechtsschutz und Urheberrecht 2009, p. 403. For a translation of the latter case into English, see N. Conley/T.Braegelmann, ‘Metall auf Metall: the Importance of the Kraftwerk Decision for the Sampling of Music inGermany’, Journal of the Copyright Society of the U.S.A. 56 (2009), p. 1017. For case comments, see B.H.M.Schippers, ‘Het chilling effect van Kraftwerk I/II op sound sampling: pleidooi voor zelfregulering terbevordering van samplegebruik’, Tijdschrift voor auteurs-, media- en informatierecht 2014, p. 105; F.J.Dougherty, ‘RIP, MIX and BURN: Bemerkungen zu aktuellen Entwicklungen im Bereich des digitalenSampling nach US-amerikanischem und internationalen Recht’, Gewerblicher Rechtsschutz und Urheberrecht –Internationaler Teil 2007, p. 481.

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A last question concerns the scope of the right to transformative use that should be recognizedin copyright law. As pointed out above, Bourdieu’s analysis does not only highlight theimportance of freedom to use and criticize pre-existing works in the process of defining anddemarcating a new aesthetic position. It also sheds light on the need to allow artists of a newgeneration to learn of the positions that have already been taken by predecessors. Unless acreator masters the history of her particular art and knows the heritage of former generations,she will be inhibited from detecting structural gaps that allows her to take a legitimate andplausible next step in the evolution of literary and artistic productions.59 Therefore, thequestion arises whether a right to transformative use should only cover core areas, such as themaking of quotations, parodies and collages, or be extended to peripheral areas, such aseducational use, library use, and private studying.60

The problem with these latter categories is that, unlike the freedom of quotation, parody andcollage, they do not lie at the core of the creative process as such. Use privileges foreducational and cultural heritage institutions are crucial to the dissemination of informationand the guarantee of equal access to information in the information society. However, they arenot directly linked with the process of creation. It is unclear whether an art student or a libraryuser will sooner or later embark on the creation of a literary or artistic work. Use privilegesfor educational and cultural heritage institutions are investments in potential acts of creationthat may take place in the future. They increase the likelihood of users receiving sufficientinspiration for the creation of a new literary or artistic work. However, they operate in apreliminary, preparatory phase. Moreover, it can hardly ever be ascertained whether the use ofservices of educational institutions, archives, museums and libraries, is consumptive ortransformative. This dilemma clearly comes to the fore in the case of private copying. It isdifficult, if not impossible, to conceive of contextual factors that could reliably indicatewhether the copying takes place for mere entertainment and enjoyment purposes, or for thestudying of aesthetic positions that will finally lead to a new literary or artistic production.

Given these conceptual and practical difficulties, it seems advisable to confine the recognitionof a right to transformative use to use privileges that directly support the process of creation,such as a quotation right that permits the taking of parts of a pre-existing work to make acomment, a parody right that permits the evocation of a pre-existing work to express humor ormockery, a collage right that permits the composition of a new work on the basis of fragmentsof pre-existing works. By contrast, more general copyright limitations that support a rich anddiverse information infrastructure, such as use privileges for educational institutions, libraries,archives and museums, and the exemption of private copying, should not be redefined as anauthor’s right to transformative use. This approach would blur the conceptual contours oftransformative use rights and cover too many acts of use that are merely consumptive. Theinroads made into the domain of exploitation rights that are of particular importance tobourgeois authors would become too broad.

4. A Critical Comment on Remuneration Mechanisms

As explained above, Bourdieu’s analysis casts doubt upon standard justifications of copyrightprotection. In particular, the focus on the motivating power of monetary rewards in current

59 Bourdieu 1992/1999, p. 385.60 For a discussion of this question, see also M.R.F. Senftleben, Copyright, Limitations and the Three-Step Test –An Analysis of the Three-Step Test in International and EC Copyright Law, The Hague/London/New York:Kluwer Law International 2004, p. 39-41.

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copyright law is questionable. As autonomous authors attach importance to reputationalrewards instead, the prospect of copyright protection does not necessarily spur their creativity.To the contrary, there may be a risk of inciting authors with an independent l’art pour l’artorientation to invest time and ingenuity in commercially successful mainstream productions.Hence, the grant of copyright does not appear as an ideal solution of the public goods problemin the field of literary and artistic productions. From the perspective of Bourdieu’ssociological analysis, the alternative of a government-run remuneration system couldseriously be taken into consideration.61

The examination of this alternative avenue for the remuneration of authors, however, isbeyond the scope of the present analysis. The examination focuses on new directions in thefurther development of copyright as a system of intellectual property protection. Moreover, ithas already been posited above that in the framework of the present analysis, solutions shouldbe preferred that ensure the neutrality of copyright law in the ongoing fight of bourgeois andautonomous authors for predominance in the field of literary and artistic production. Thisimplies that the interests of bourgeois authors are to be factored into the equation as well. Forprofit-oriented authors, however, the prospect of monetary rewards is very important.

This starting point gives rise to the preliminary question whether the discussion of appropriateremuneration mechanisms can be confined to the interests of bourgeois authors. TakingBourdieu’s assumptions to the extremes, it could be said that autonomous authors, bydefinition, have no interest in monetary rewards. As winning in economic terms implieslosing in artistic terms, commercial success may even be seen as undesirable. Hence, onemight be tempted to assume that autonomous authors need not be remunerated for their work.This cynical line of reasoning, however, follows from a misunderstanding of the abovecritique of the standard rationales of copyright protection in the light of Bourdieu’s analysis. Itis correct to say that the reliance of traditional copyright theories on the power of monetaryincentives is questionable. Authors with an independent l’art pour l’art orientation areunlikely to be more creative and more productive when copyright protection is offered as abait. However, it would be incorrect to infer from these doubts about a standard argument forcopyright protection that autonomous authors should not receive any remuneration for theirwork. The reason for securing this remuneration, however, is not the utilitarian incentiverationale. By contrast, an appropriate remuneration must be guaranteed because of socialconsiderations and the need for equal treatment.

As bourgeois authors, autonomous authors have to earn a living. Therefore, it is a matter offairness and equality to remunerate not only bourgeois authors but also autonomous authorsfor their creative work. From a social perspective, it may be added that the need to takemeasures to ensure an appropriate remuneration is even more pressing in the case ofautonomous authors because this group may fail to attach sufficient importance to revenuestreams when it comes to negotiations with producers and disseminators seeking to exploittheir works (exploiters). As long as a certain mode of exploitation is likely to yield attractivereputational rewards, autonomous authors may be tempted to give their works away at a pricethat does not appropriately reflect their market value. A true academic, for instance, may offeran article with pioneering new ideas for free to a high-ranked, peer-reviewed journal. An artfilm director may refrain from insisting on royalties in return for the transfer of copyright in

61 S.P. Calandrillo, ‘An Economic Analysis of Property Rights in Information: Justifications and Problems ofExclusive Rights, Incentives to Generate Information, and the Alternative of a Government-Run RewardSystem’, Fordham Intellectual Property Media & Entertainment Law Journal 9 (1998), p. 301 (310-312).

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negotiations with an important film producer. The focus on reputation instead of money maythus render independent authors particularly vulnerable.

Hence, the question arises how copyright law can ensure that both bourgeois and autonomouscreators receive a fair remuneration for their creative labour. One possible answer to thisquestion lies in the very nature of copyright itself. As authors’ exploitation rights aremarketable, it is conceivable to leave the task of generating an income to the market. Thisapproach, however, also means that authors are fully exposed to the rigours of market forces.As long as they do not become famous or at least popular, they will hardly have thebargaining power to negotiate an attractive remuneration package with exploiters of theirworks. Instead, they will have to accept standard “buy-out” contracts that oblige them to signaway their copyright in exchange for a lump sum honorarium or a modest royalty. Asdiscussed above, autonomous artists in the sense of Bourdieu’s sociological analysis maynever attain a bargaining position that allows them to ensure a decent income on the basis ofcopyright because their works are not made for the taste of the masses in the first place.

While these consequences may be seen as a normal result in a market economy driven bysupply and demand, they become problematic when it is considered that copyright, as pointedout above, is often presented as a right that serves the individual interests of creators. If themajority of creators does not have the bargaining power to derive substantial economicbenefit from copyright,62 the arguments advanced in favour of the protection system canrightly be criticized for being dishonest. If copyright serves as a vehicle to vest the creativeindustries with strong rights in information products while these rights are defended as ameans to remunerate authors, the creators of literary and artistic works only function as adummy to conceal the industry’s insatiable appetite for continuously expanding exclusiverights. As a result, the arguments advanced in favour of copyright can be unmasked as falserhetoric63 and the protection system is in danger of losing its support in society. The system’ssocial legitimacy is put at risk.

To avoid this erosion of copyright’s acceptance in society, the lawmaker can seek to reducethe exposure to market forces and adopt measures that strengthen the position of creators vis-à-vis exploiters. In 2002, an example of legislation in this area – an Act on CopyrightContract Law – entered into force in Germany. This legislation confers upon authors a right tofair remuneration besides the traditional exploitation rights. By virtue of § 32(1) of theGerman Copyright Act (UrhG), as amended by the 2002 Copyright Contract Act, authorshave the right to demand the modification of a contract about a work’s exploitation that failsto provide for a fair remuneration. § 32(2) UrhG complements this right to fair remuneration

62 In this regard, see the analyses of the bargaining position and income situation of individual creators by M.Kretschmer/S. Singh/L. Bently/E. Cooper, 2011 Copyright Contracts and Earnings of Visual Creators: A Surveyof 5,800 British Designers, Fine Artists, Illustrators and Photographers, Bournemouth: Centre for IntellectualProperty Policy & Management (CIPPM) 2011, available at http://ssrn.com/abstract=1780206; J. Weda/I.Akker/J. Poort/P. Rutten/A. Beunen, Wat er speelt – De positie van makers en uitvoerend kunstenaars in dedigitale omgeving, Amsterdam: SEO Economisch Onderzoek 2011, available athttp://www.rijksoverheid.nl/documenten-en-publicaties/rapporten/2011/04/11/rapport-wat-er-speelt.html; P.B.Hugenholtz/L. Guibault, Auteurscontractenrecht: naar een wettelijke regeling?, Amsterdam: Institute forInformation Law (IViR) 2004, available at www.ivir.nl/publicaties/overig/auteurscontractenrecht.pdf.63 Cf. S.E. Sterk, ‘Rhetoric and Reality in Copyright Law’, Michigan Law Review 94 (1996), p. 1197 (1197-1198), pointing out that ‘although some copyright protection indeed may be necessary to induce creative activity,copyright doctrine now extends well beyond the contours of the instrumental justification. The 1976 statute andmore recent amendments protect authors even when no plausible argument can be made that protection willenhance the incentive for authors to create.’

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by making it clear that so-called “common remuneration rules” established in negotiationsbetween a representative association of authors on the one hand, and an individual exploiter oran association of exploiters on the other hand (§ 36 UrhG), are to be deemed “fair” in thissense by virtue of the law.

Although the German Copyright Contract Act has now been in effect for more than ten years,it has not led to the envisaged general improvement of the income situation of authors.Neither the individual right to a fair remuneration, nor the possibility of establishing commonremuneration standards have been used much in practice.64 Authors seem hesitant to asserttheir remuneration right in court. Only translators started court procedures that finally led tofirst decisions of the German Federal Court of Justice on the fair remuneration question.65 Onbalance, however, the determinants of what constitutes a fair remuneration in an individualcase still seem too vague to allow the effective use and enforcement of the new right. As theparty invoking the right to fair remuneration, the burden of proving that a contractually agreedremuneration falls short of the legally guaranteed fair remuneration rests on the author.Hence, she also carries the risk and costs of showing that a certain remuneration is to bedeemed fair in the relevant sector of the creative industry, and that the concluded contractdoes not provide for this fair remuneration.66

For cases in which no common remuneration rules are available, § 32(2) UrhG indicates that aremuneration can be considered fair when it complies with the remuneration which accordingto the customary practices in the sector concerned, an author could reasonably expect in lightof the scope and reach of the granted right, the duration and time of the use, and othercircumstances relevant to the individual case.67 These flexible factors, however, can hardlyclarify the conceptual contours of the fair remuneration right. In the absence of modelcontracts or other customary remuneration schemes that come close to common remunerationrules in the sense of § 36 UrhG, an author will still have difficulty to prove that acontractually agreed remuneration is not fair on the basis of this vague definition of fairnessbased on the custom in a given sector.68 Similarly, the author will have difficulty in assessingthe risk of litigation about the remuneration question as long as there is no reliableinformation on the customary remuneration.

Against this background, the additional option to invoke § 36 UrhG and formally establishcommon remuneration rules in collective negotiations between an association of authors andindustry representatives is of particular practical importance. By virtue of § 32(2) UrhG, astandard remuneration scheme of this type constitutes a legally binding definition of the fairremuneration in the industry sector concerned. A standard remuneration scheme in the senseof § 32(2) thus provides the legal certainty necessary to assess the chances of court

64 See the analysis by G. Schulze, ‘Vergütungssystem und Schrankenregelungen’, Gewerblicher Rechtsschutzund Urheberrecht 2005, p. 828, which in principle, is shared by A. Dietz, ‘Das Urhebervertragsrecht inDeutschland’, in: R.M. Hilty/C. Geiger (eds.), Impulse für eine europäische Harmonisierung des Urheberrechts,Berlin/Heidelberg/New York: Springer 2007, p. 465. However, Dietz qualifies the first common remunerationrule that has been established under the new German legislation as a success of the system as a whole. See Dietz,ibid., p. 473-474.65 See Federal Court of Justice, 7 October 2009, cases I ZR 38/07 and I ZR 230/06, available (in German) atwww.bundesgerichtshof.de. This case law will be discussed in more detail below.66 See Schulze, supra noot 35, p. 829-830; Dietz, supra noot 35, p. 469.67 See Schulze, supra noot 17, p. 595.68 See Schulze, supra noot 35, p. 829-830; A.A. Wandtke, ‘Der Anspruch auf angemessene Vergütung fürFilmurheber nach § 32 UrhG’, Gewerblicher Rechtsschutz und Urheberrecht Int. 2010, p. 704 (707).

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procedures. It can also serve as a yardstick for proving the unfairness of a remuneration thatdoes not comply with the standard described in the remuneration scheme.

The German legislation, however, does not seem to offer sufficient incentives for the requirednegotiations between a representative association of authors on the one hand, and individualexploiters, or an association of exploiters, on the other. Since the entering into force of thenew legislation more than ten years ago, only one single remuneration rule in the sense of §36 UrhG has been established. The Common Remuneration Rules for Writers of GermanFiction69 were concluded in negotiations between the Association of German Writers in theUnited Services Trade Union Ver.di and several publishers.70 As no representative associationof publishers entered the negotiations,71 it was difficult to foresee the impact of this standardremuneration rule on the sector as a whole. The fact that the German Ministry of Justice itselffinally decided to mediate informally between the parties to ensure the adoption of theremuneration rules mirrors the difficulty of the negotiations.72

Given the scarcity of common remuneration rules in the sense of § 36 UrhG, it is tempting forthe courts to make extensive use of existing rules. As already indicated above, the GermanFederal Court of Justice had the opportunity to clarify the scope of common remunerationrules in two cases that had been initiated by translators. A collectively agreed remunerationrule for translators in the sense of § 36 UrhG was not available for a decision in these cases.Moreover, the Federal Court of Justice had serious doubts about the customary remunerationin the translation sector. Referring to the aforementioned general definition of “fairremuneration” in § 32(2) UrhG, the Court pointed out that compliance with customaryremuneration practices in a particular sector may nonetheless be insufficient in the light of thegeneral fairness criteria formulated by the legislator:

Even if a particular honorarium – as in this case – is customary in the sector, this does notnecessarily mean that it is fair. By contrast, a given remuneration is only fair when it equallytakes account of the interests of the author besides those of the exploiter.73

Having neither a common remuneration rule in the sense of § 36 UrhG nor an appropriatecustomary remuneration scheme in the sense of § 32(2) UrhG at its disposal, the FederalCourt of Justice finally turned to the Common Remuneration Rules for Writers of GermanFiction as a point of departure for determining the fair remuneration of translators.74 Byanalogy, the Court used the Common Remuneration Rules for Writers of German Fiction –the only common remuneration rules established under § 36 UrhG – as a guideline for itsdecision on a fair level of remuneration for translators. This widening of the field ofapplication of common remuneration rules is remarkable because the Common Remuneration

69 These common remuneration rules are available (in German) at www.bmj.de/media/archive/962.pdf.70 The rules were signed, for instance, by Rowohlt, S. Fischer and Random House. See A. Dietz, in: G.Schricker, Urheberrecht – Kommentar, 3rd ed., Munich: C.H. Beck 2006, p. 797.71 See Deutscher Bundestag, 3 May 2004, Kurzprotokoll der 14. Sitzung (öffentlich) der Enquete-Kommission‘Kultur in Deutschland’, Protokoll Nr. 15/14, p. 13/4-13/5.72 The mediation was informal in the sense that it was no formal mediation procedure with a dispute commissionunder § 36a UrhG. See Dietz, supra noot 48, p. 797; Schulze, supra noot 35, p. 830.73 German Federal Court of Justice, 7 October 2009, case I ZR 38/07, p. 11, Gewerblicher Rechtsschutz undUrheberrecht 2009, p. 1148 (1150) with case comment by R. Jacobs; and case I ZR 230/06, p. 12, available (inGerman) at www.bundesgerichtshof.de.74 German Federal Court of Justice, ibid., cases I ZR 38/07, p. 16, and I ZR 230/06, p. 15-16.

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Rules for Writers of German Fiction explicitly exclude applicability to translated works.75 Inaddition, the Federal Court of Justice was unimpressed by the fact that only one of the twocases brought by translators concerned fiction works. The second case was about translationsof non-fiction books. The Court, however, also surmounted this hurdle of “double” analogy. Itdid not matter that the case concerned translators instead of writers, and it did not matter thatit concerned non-fiction instead of fiction books:

Even though the remuneration rules [...] are not directly applicable to publication contractsfor non-fiction books, there are no prevailing concerns against their use for the purpose ofdetermining a fair remuneration for the translation of a non-fiction book. According to thefindings of the Court of Appeals, none of the parties argued and no other circumstancessuggest that the conditions of publication contracts for non-fiction books differ from those ofcontracts over fiction works to such an extent that the remuneration rules for writers could notbe taken into account.76

Using the Common Remuneration Rules for Writers of German Fiction as a guideline for thedevelopment of a fair remuneration standard for translators, the Court finally ruled thattranslators are entitled to 2% of the net retail price of hardcover editions and 1% in the case ofpaperback editions. This amounts to one fifth of the remuneration which, according to theCommon Remuneration Rules for Writers of German Fiction, is due to writers. If thepublisher guarantees a honorarium that can be deemed reasonable in light of the custom in thesector, this right to fair remuneration is reduced to 0,8% for hardcover sales and 0,4% forpaperback sales. Moreover, this reduced royalty only needs to be paid as of the 5000th copysold. In addition, translators are entitled to 50% of the net profits from the commercializationof ancillary rights.77

This jurisprudence of the Federal Court of Justice shows that common remuneration rulesestablished under § 36 UrhG can have a broad field of application. In particular, the courtsmay extend the scope of these rules to parties who have not been involved in the underlyingnegotiations. A common remuneration rule may become a general yardstick for theestablishment of fair remuneration standards in a given sector even though it was onlyconcluded between specific parties and for a specific group of creators. On its merits, thisjurisprudence transforms common remuneration rules into generally binding legal instrumentswith a considerable impact on remuneration standards in the respective branch of the creativeindustry.

On the one hand, this approach can have positive effects for authors in a sector where noagreement on a common remuneration rule can be reached. By invoking remuneration rules ofa related sector or a related group, German courts can still arrive at a fair remunerationstandard in these cases and improve the income situation of authors by reference toremuneration standards in a comparable field. On the other hand, the jurisprudence of theFederal Court of Justice can easily become an additional obstacle to negotiations on commonremuneration rules in the sense of § 36 UrhG. If it is at all possible to find individualexploiters or business associations that are willing to speak about common remuneration rules

75 See Gemeinsame Vergütungsregeln für Autoren belletristischer Werke in deutscher Sprache, available atwww.bmj.de/media/archive/962.pdf, footnote p. 1, on the one hand, and German Federal Court of Justice, ibid.,cases I ZR 38/07, p. 17, and I ZR 230/06, p. 16, on the other hand.76 See German Federal Court of Justice, ibid., case I ZR 230/06, para. 34.77 See Federal Court of Justice, ibid., cases I ZR 38/07, p. 18-23, and I ZR 230/06, p. 18-23. Nonetheless, thislevel of fair remuneration did not meet the expectations of translators. Cf. Dietz, supra note 35, p. 469.

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in a particular branch, these exploiters and associations may be reluctant to enter into formalnegotiations because of the risk of resulting fair remuneration standards being declaredapplicable to the whole sector afterwards by the courts. Given the risk of generalization,interested enterprises and associations may also face pressure from other players in therelevant sector who fear that the establishment of common remuneration rules in oneparticular branch may finally affect remuneration standards in the entire sector. From thisperspective, it is not surprising that the Common Remuneration Rules for Writers of GermanFiction remained the only common remuneration rules in the sense of § 36 UrhG that havebeen concluded since the entering into force of the German Copyright Contract Act in 2002.

In spite of the problems with collective negotiations in the German system, the underlyingrecipe – the combination of a right to fair remuneration with the possibility of establishingcommon remuneration standards in negotiations between authors and the creative industry –served as a model for other countries also seeking to enhance the credibility of the copyrightsystem by strengthening the position of individual authors vis-à-vis commercial exploiters oftheir works. In the Netherlands, for instance, legislation is under way that copies these coreelements of the German system.78 As a proliferation of more or less symbolic law makingseems counterproductive, this export success raises the question how fair remunerationlegislation could be rendered more effective in practice. A clearer definition of the underlyingconcept of fairness, a reversal of the burden of proof with regard to evidence of remunerationstandards in a given sector, extra incentives for the creative industry to enter into collectivenegotiations with associations of authors and, as a last resort, the imposition of a legalobligation to establish common remuneration rules could be considered in this context.

In the drafting process underlying the present German legislation, a far-reaching obligation toaccept common remuneration standards was contemplated with regard to situations where theparties involved in negotiations, finally, could not reach agreement. A common remunerationrule could then also have been established in compulsory settlement procedures or through acourt decision.79 This proposal, however, was rejected because of fears that it would encroachupon fundamental freedoms of enterprises and business associations, in particular the generalfreedom of action and the negative freedom of not being obliged to enter into coalitionsguaranteed in the German constitution.80 Legislation that imposes a de facto obligation toestablish common remuneration rules thus seems excessive.

78 See Ministerie van Veiligheid en Justitie, 12 June 2012, ‘Wetsvoorstel auteurscontractenrecht’, KamerstukkenII 2011/12, 33 308, published in Tijdschrift voor auteurs-, media en informatierecht 2013, p. 23. For thepreparatory work and commentaries, see B.J. Lenselink, ‘Auteurscontractenrecht 2.0 – Het wetsvoorstel inzakehet auteurscontractenrecht’, Tijdschrift voor auteurs-, media- en informatierecht 2013, p. 7; E. Wybenga,‘Ongebonden werk – Is de literaire sector gebaat bij het voorontwerp auteurscontractenrecht?’, Tijdschrift voorauteurs-, media- en informatierecht 2011, p. 41; D. Peeperkorn, ‘De lange geschiedenis van hetauteurscontractenrecht’, Tijdschrift voor auteurs-, media- en informatierecht 2010, p. 167; J.P. Poort & J.J.M.Theeuwes, ‘Prova d’Orchestra – Een economische analyse van het voorontwerp auteurscontractenrecht’,Tijdschrift voor auteurs-, media- en informatierecht 2010, p. 137; M.R.F. Senftleben, ‘Exportschlager deutschesUrhebervertragsrecht? Het voorontwerp auteurscontractenrecht in Duits perspectief’, Tijdschrift voor auteurs-,media- en informatierecht 2010, p. 146; H. Cohen Jehoram, ‘Komend auteurscontractenrecht’, Intellectueleeigendom en reclamerecht 2008, p. 303; P.B. Hugenholtz and L. Guibault, Auteurscontractenrecht: naar eenwettelijke regeling?, Amsterdam: Instituut voor Informatierecht 2004.79 See Deutscher Bundestag, 26 June 2001, ‘Entwurf eines Gesetzes zur Stärkung der vertraglichen Stellung vonUrhebern und ausübenden Künstlern’, Drucksache 14/6433, p. 4 (§ 36(3), (5) to (8)) and p. 17.80 See Arts. 2(1) and 9 of the German Basic Law (Grundgesetz), online available athttps://www.bundestag.de/bundestag/aufgaben/rechtsgrundlagen/grundgesetz/gg_01/245122. Cf. H. Schack,‘Neuregelung des Urhebervertragsrechts’, Zeitschrift für Urheber- und Medienrecht 2001, p. 453 (462). See alsoN.P. Flechsig/K. Hendricks, ‘Zivilprozessuales Schiedsverfahren zur Schließung urheberrechtlicher

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More generally, antitrust concerns may affect the concept of negotiations between anassociation of authors and industry representatives. In § 36(1) UrhG, the German legislatorentrusts associations of authors and exploiters with the task of fixing common remunerationstandards. To this day, however, it is unclear whether this task assignment in the law itself issufficient to dispel concerns about incompliance with antitrust legislation. Already during thedrafting phase, the reliance on collective negotiations was criticized for encouraging cartelnegotiations and being in conflict with EU competition law.81 Nevertheless, EU competitionauthorities have refrained from measures against collective negotiations in Germany so far.Against this background, § 36 UrhG is believed to comply with EU antitrust standards.

Besides the inactivity of EU competition authorities, this assumption is based on the argumentthat individual authors often depend on the creative industry to the same extent as employees.Only formally, they have the status of self-employed freelancers with individual businesses.Therefore, negotiations on remuneration standards between associations of freelance authorsand creative industry representatives are deemed not to be comparable with the formation ofcartels in other cases where powerful businesses are on both sides. In addition, it is pointedout that common remuneration rules in the sense of § 36 UrhG only provide generalguidelines for determining a fair level of remuneration. They do not readily fix the individualremuneration due to the author. As explained by Adolf Dietz,

[t]he legal effect of common remuneration rules, namely the irrefutable assumption based on§ 32(2), first sentence, that a remuneration complying with the rules is fair, does not consist ofa mutual obligation to apply the rules in contracts. By contrast, their legal effect follows fromthe law itself. Common remuneration rules are collectively developed remuneration standardsbut not remuneration agreements. In the sense of antitrust law, they are thus to be regarded asan aliud.82

Depending on the position taken in the debate on compliance with antitrust standards, theGerman system for the establishment of common remuneration rules may thus also appearproblematic from the perspective of competition law. Therefore, copyright legislation seekingto improve the income situation of creators should not exclusively rely on the symbolicrecognition of a right to fair remuneration, the vague hope that agreements on appropriateremuneration standards will evolve from negotiations between authors and the creativeindustry, and the assumption that these standards will survive further scrutiny in the light ofantitrust standards. By contrast, additional instruments are necessary to ensure that authorsreceive a fair monetary reward for their creative work.

Again, Bourdieu’s analysis can offer important impulses in this regard. While a general rightto fair remuneration ex ante may be of particular importance to bourgeois authors whose

Gesamtverträge – Zweckmäßige Alternative oder Sackgasse?’, Zeitschrift für Urheber- und Medienrecht 2000,p. 721, for an assessment of the pros and cons of a formal settlement procedure.81 See M. Schmitt, ‘§ 36 UrhG – Gemeinsame Vergütungsregelungen europäisch gesehen’, GewerblicherRechtsschutz und Urheberrecht 2003, p. 294 (295-296); H. Schack, ‘Urhebervertragsrecht im Meinungsstreit’,Gewerblicher Rechtsschutz und Urheberrecht 2002, p. 853 (857).82 See Dietz, supra noot 35, p. 473 (emphasis in the original text, translation by the author). Cf. B. Schlink/R.Poscher, Verfassungsfragen der Reform des Urhebervertragsrechts, Study Commissioned by the DeutscheJournalisten-Verband (DJV) and the Vereinte Dienstleistungsgewerkschaft (ver.di), Munich: DJV/ver.di 2002.For a more cautious assessment, see J.B. Nordemann, ‘Urhebervertragsrecht und neues Kartellrecht gem. 81 EGund § 1 GWB’, Gewerblicher Rechtsschutz und Urheberrecht 2007, p. 203 (210), who underlines the need tomonitor the impact of common remuneration rules on the practice of concluding exploitation contracts.

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works are likely to be commercially successful in the marketplace, the difficulty of providingevidence for a certain level of standard remuneration in a specific field of art is likely toconstitute an almost insurmountable hurdle for autonomous authors. As their works are avant-garde productions not following known patterns, a remuneration concept presupposing theexistence of a customary level of fair remuneration seems inapt from the outset. Moreover,autonomous authors will focus on reputational rewards. As long as a mode of publication islikely to attract the attention of peers, they may accept exploitation contracts in spite of anoverly restrictive remuneration scheme. In addition, they may be hesitant to invoke the rightto fair remuneration because of fears that this will endanger the finance model for theenvisaged art production and put an end to the entire project. Autonomous artists may alsofear negative reactions in the art sector concerned when they insist on the right to fairremuneration. Facing a relatively small circle of investors and producers, an autonomousartist may be concerned about seeing her name being added to a “black list” of creators withwhom exploiters do not want to work because of past disputes about an adequate level ofremuneration.

However, once the work of an autonomous creator has attained the status of an importantavant-garde production within the circle of independent artists and generates considerablemonetary revenue on the art market because of this status, the author may have a particularinterest in a remuneration rule that ensures a fair profit sharing ex post. If the work becomessuccessful on the art market to such an extent that the remuneration originally receivedappears disproportionally low, an ex post remuneration rule would ensure that the author candemand an adjustment of the contract in the light of changed circumstances.

Again, experiences with copyright legislation in Germany can serve as an example in thiscontext. Prior to the introduction of the above-described 2002 Act on Copyright ContractLaw, the German Copyright Act already contained a safeguard against remuneration schemesthat turn out to be disproportionate in the course of a work’s exploitation: the so-called“bestseller clause” was regarded as an important addition to the general rule on imprévision inthe German Civil Code. It softened the requirement that new circumstances justifying anadjustment of the remuneration had to be unforeseeable for contracting parties at the time ofconcluding the exploitation contract. The strict application of this requirement had renderedthe general imprévision rule in the German Civil Code ineffective in many copyright cases.83

Against this background, the traditional bestseller clause in the German copyright system wasbased on an alternative threshold for requesting an adjustment of the remuneration: a showingof “gross” disproportionality. This condition was deemed to be fulfilled when the honorariumreceived by the author amounted to only one third of what would have constituted a usualroyalty revenue when taking into account the work’s success.84

In the 2002 Act on Copyright Contract Law, the German legislator replaced this bestsellerclause with an even more elastic “fairness clause”. In § 32a(1) UrhG, it was stated explicitlythat this new clause could be invoked regardless of whether the parties could have foreseenthe disproportionality between remuneration and revenue when entering into the exploitationcontract. The condition of “gross” disproportionality was attenuated by setting forth athreshold of “striking” disproportionality instead. In the official materials accompanying the

83 For instance, see German Federal Court of Justice, decision “Horoskop-Kalender”, published in GewerblicherRechtsschutz und Urheberrecht 1991, p. 901 (902); German Federal Court of Justice, decision “Comic-Übersetzungen”, published in Zeitschrift für Urheber- und Medienrecht 1998, p. 497 (502).84 See BGH, ibid., Horoskop-Kalender, p. 903.

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2002 Act, the German legislator explained that this new requirement could be deemed to bemet when the author had received a honorarium amounting to less than half of the income thatcould have been expected considering the work’s success.85 In literature, it is argued that evenone fifth should already be sufficient to assume a striking disproportionality.86 German courts,however, have not had sufficient opportunities to fix this new threshold requirement yet.87

As the traditional bestseller clause, the new fairness clause covers all kinds of contractsawarding exploitation entitlements. Its scope of application ranges from transfers andexclusive licenses to non-exclusive licenses and specific permissions of use, such as apermission to translate or adapt a work.88 Moreover, the new provision makes it clear that inthe case of a license chain, the author can assert the right to ex post adjustment of thecontractually agreed remuneration against every license holder (§ 32a(2) UrhG). It is thusirrelevant whether a licensee was involved in the original honorarium negotiations andreceived the exploitation entitlement directly from the author.

Arguably, ex post adjustment measures of this type are more effective than attempts to securea fair remuneration ex ante – at a stage where a work’s exploitation has not yet started.Support for ex post remuneration mechanisms can also be found in international copyrightlaw. The optional droit de suite recognized in Art. 14ter(1) BC grants the author and her heirsan interest in any sale of original works of art and original manuscripts subsequent to thework’s first transfer. As bestseller and fairness legislation seeking to ensure an additionalincome in case of disproportionality between initial remuneration and later revenues, thisinternational provision aims to ensure that the author receives a share of profits accruing froma work’s successful exploitation at a later stage.

For lawmakers aiming at appropriate remuneration mechanisms for individual creators, thedebate on fair remuneration also yields more general guidelines. In particular, exploitationcontracts offering authors a revenue share seem more desirable than fixed one-time honorariain “buy out” contracts. With a remuneration scheme ensuring a continuous royalty stream, therisk of disproportionality between remuneration and revenue can be reduced from the outset.As a legislative measure, it may thus be advisable to encourage remuneration in the form ofroyalty percentages and discourage agreements based on lump sum honoraria as the only formof remuneration.

In the Netherlands, the discussion on legislation ensuring a proper remuneration of authorsshed light on a further measure that could be considered in this context. In a preliminaryproposal for new legislation, the Dutch Ministry of Justice had proposed the partitioning of awork’s exploitation period into intervals of five years. Every five years, the exploitation rightswould return to the author who could then grant them anew. The rationale underlying thisproposal was the hope that this would give the author the opportunity to renegotiateexploitation contracts and adapt them to changing circumstances every five years. Instead of

85 See Deutscher Bundestag, 23 January 2002, Gesetz zur Stärkung der vertraglichen Stellung von Urhebern undausübenden Künstlern – Beschlussempfehlung und Bericht des Rechtsausschusses, Drucksache 14/8058, p. 19.86 Cf. the overview provided by Schulze, in: Th. Dreier/G. Schulze, UrhG – Kommentar, 3e druk, München: C.H.Beck 2008, p. 616.87 Court decisions based on the new fairness clause are still scarce. See Schulze, ibid., p. 617. As to the practicaldifficulties of court procedures seeking to clarify the fairness of the remuneration received by the authors underthe new fairness clause, see N. Reber, ‘Der “Fairnessparagraph”, § 32a UrhG’, Gewerblicher Rechtsschutz undUrheberrecht – Internationaler Teil 2010, p. 708 (709).88 See Schulze, ibid., p. 613.

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strengthening the position of authors, however, this proposal is likely to have a corrosiveeffect in practice. If the maximum period of exploitation which an author can offer at thebeginning of a work’s exploitation is only five years, the creative industry will only pay for anexploitation horizon of five years. If the work has not enough success to offer promisingexploitation prospects for a second five-year term, the author will have difficulty findinganother exploiter willing to pay for a further five-year period. She may thus see her reward forthe work being reduced to a single payment for an exploitation period of five years instead ofreceiving a payment for the entire term of copyright.

Legislators considering a rule of fixed exploitation intervals would thus have to ensure thatthe initial period of exclusivity which an author can offer is long enough to cover the entireexploitation horizon and amortization period underlying the investment decision of thecreative industry concerned.89 Otherwise, such legislation will only shift the risk of marketsuccess from exploiters to authors. The result would be a weakening of the position of authorsnot creating bestsellers and a lower income for works that do not become evergreens. Againstthis background, it is doubtful whether fixed exploitation intervals are an effective tool toensure a fair remuneration of creators.

A final aspect of the debate on a fair remuneration for the work of creators concerns the cross-financing of productions. When ex post measures are taken to adjust the remuneration in thecase of works having huge market success, exploiters may warn of shrinking budgets for thefinancing of less successful works. The income from bestsellers, so runs the argument, isneeded to compensate for the losses stemming from unsuccessful productions. If the creativeindustry must share profits accruing from bestsellers with the authors, the potential ofbestseller productions for levelling out losses resulting from investment in commerciallyinsecure productions is reduced. This may limit the willingness of the creative industry toinvest in unorthodox works of unknown artists from the outset.

Revisiting Bourdieu’s analysis, a line can be drawn between this cross-financing argumentand the ongoing fight between bourgeois and autonomous authors for predominance in thefield of literary and artistic production. If it was true that the creative industry used the incomefrom successful mainstream productions to finance less promising autonomous productions,ex post adjustments of revenue streams leading to a higher income for bourgeois bestsellerauthors may have the effect of reducing the budget available for less secure art productions ofautonomous authors. In other words: the potential of mainstream productions of bourgeoisauthors serving as a subsidy for l’art pour l’art productions of autonomous authors would bereduced.

In the absence of an economic analysis confirming this alleged interdependence of investmentdecisions in bourgeois and autonomous productions in the creative industry, however, itcannot readily be assumed that the alleged cross-financing of art productions is taking place,

89 See the risk assessment by J.P. Poort/J.J.M. Theeuwes, ‘Prova d’Orchestra – Een economische analyse van hetvoorontwerp auteurscontractenrecht’, Tijdschrift voor auteurs-, media- en informatierecht 2010, p. 137 (142-143), who point out that the partitioning of the exploitation period in five-year intervals is unlikely to bebeneficial for the majority of authors. Only successful authors may be able to increase their income. Countriespresently providing for a right to reclaim copyright after a given period of time, such as the U.S.A. (Section 203of the U.S. Copyright Act provides for a rights return after 35 years), provide for much longer periods. Withregard to a proposal of rights returning to the author after 30 years which was tabled in the framework of thedebate about the strengthening of the position of authors in Germany, see H. Schack, ‘Neuregelung desUrhebervertragsrechts’, Zeitschrift für Urheber- und Medienrecht 2001, p. 453 (460).

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and that it would be frustrated by ex post adjustments of remuneration schemes for bestsellers.These ex post adjustments would only occur when a work’s market success has not alreadybeen factored into the equation at the time of concluding the exploitation contract. Once acreator is known as a bestseller author, however, she will have the bargaining powernecessary to negotiate an adequate remuneration in the initial exploitation contract. Hence, expost adjustments only impact the calculations of the creative industry in case a work was notexpected to have outstanding commercial success so that the creator had limited bargainingpower. Even if the alleged practice of cross-financing exists, it is thus unclear whether thesecases would minimize industry profits to such an extent that the alleged subsidizing of artproductions becomes unfeasible.

5. Towards a Copyright System Based on Creators’ Interests

Bourdieu’s sociological analysis provides an important theoretical model that sheds light onthe motivations and expectations of different groups of creators. It explains how the ongoingfight between bourgeois and autonomous creators for predominance in the field of literary andartistic production impacts the quality standards and the internal discourse in the artcommunity, and how it influences the degree of autonomy of the social space in which worksof literature and art are created. Against this background, Bourdieu’s analysis offers severalstarting points for a critical assessment of modern copyright systems in the light of creators’interests.

First, Bourdieu’s analysis highlights the plurality of factors influencing the decision to createa work. With a spectrum of driving forces ranging from monetary to reputational rewards, theanalysis confirms previous research pointing out that the focus on the motivating power ofpecuniary incentives in copyright law is incomplete and doubtful. In the area of autonomousl’art pour l’art productions, Bourdieu identifies a peculiar reverse economy contradicting thereliance on the grant of exploitation rights as a reward and incentive scheme: a creatorwinning in economic terms, loses in artistic terms. Artists striving for monetary success areunlikely to acquire a reputation as an autonomous, independent artist in the art community.From this perspective, copyright law may even be accused of enticing authors away from anautonomous l’art pour l’art orientation. Considering Bourdieu’s description of the ongoingfight of bourgeois and autonomous creators for predominance in the field of literary andartistic production, it may also be said that copyright is not impartial in the power struggle.Focusing on monetary incentives, it offers more support for bourgeois authors than forautonomous authors.

In the assessment of copyright law, however, a second point of Bourdieu’s analysis must notbe overlooked. This second aspect concerns the continuous process of renewal in the area ofautonomous l’art pour l’art productions: to establish a new avant-garde, autonomous creatorshave to explore the cultural landscape and find gaps in the texture of pre-existing works thatallow them to take a plausible next step in the development of literature and art. This aspect ofBourdieu’s analysis brings the limitations of copyright protection into focus. To enable acontinuous renewal process, autonomous creators must be free to quote, parody, reuse andremix pre-existing works. They must also have the opportunity to study pre-existing creations.Therefore, limitations supporting these activities constitute an element of the copyrightsystem that is of crucial importance to the group of autonomous artists.

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Supporting autonomous creators in this way, limitations offering the outlined user freedomscounterbalance the grant of exploitation rights that is of particular interest to bourgeoiscreators. Copyright limitations thus ensure a neutral position of copyright in the powerstruggle. While the monetary incentives following from the grant of exclusive rights arecentral to the work of profit-oriented authors, limitations allowing the exploration of thecultural landscape and the critique of existing avant-garde works are essential to the work ofautonomous authors. Like two sides of a coin, the rights and limitations in copyright law areinseparably linked. A proper balance of rights and limitations is required to ensure progress inboth areas – bourgeois and autonomous productions – and maximize cultural diversity.

As to the present understanding of authors’ rights, this insight leads to a broader conception ofentitlements. Apart from traditional exploitation rights that allow an author to prohibit theunauthorized use of literary and artistic works (right to control consumptive use), copyrightlaw should also recognize an author’s right to use pre-existing material for the purpose ofcreating new works (right of transformative use of protected material). Limitations that arecentral to this transformative process, such as the idea/expression dichotomy and the freedomto make quotations, parodies and remixes, would have to obtain the same status as traditionalexploitation rights. This would exclude a strict, narrow interpretation. It would also requirethe development of appropriate enforcement mechanisms, for instance with regard to worksprotected through technological measures.

A third point of Bourdieu’s analysis concerns the remuneration that is due to authors for theircreative work. The fact that the prospect of monetary rewards does not function as anincentive for the creativity of autonomous creators must not be misused as a justification fordenying the payment of a remuneration for autonomous works that are based on the maxim ofl’art pour l’art. This leads to the question how copyright law can ensure a fair remunerationfor bourgeois and autonomous authors alike. It is contradictory when the law justifies thegrant of broad exploitation rights in the light of the difficult income situation of creators,while at the same time condoning the practice of imposing “buy out” contracts upon authorswith insufficient bargaining power.

Again, Bourdieu’s analysis can offer guidelines in this regard. While a general right to fairremuneration ex ante may be of particular importance to bourgeois authors whose works arelikely to be commercially successful in the marketplace, the difficulty of providing evidencefor a certain level of standard remuneration in a specific field of art will constitute an almostinsurmountable hurdle for autonomous authors. As their works are avant-garde productionsnot following known patterns, a remuneration concept presupposing the existence of acustomary level of fair remuneration seems inapt from the outset. However, once the work ofan autonomous author has attained the status of an important avant-garde production withinthe circle of independent artists and acquires a particular value on the art market because ofthis status, the author may have a particular interest in a remuneration rule that ensures a fairprofit sharing ex post.

Accordingly, legislative measures seeking to ensure that creators receive a fair remunerationfor their creative work should not be confined to mechanisms focusing on an appropriatereward ex ante – at the time the exploitation contract is concluded. National experiences withfair remuneration legislation, in particular in Germany, show that attempts to determine anappropriate level of fair remuneration hardly yield satisfactory results before a work’sexploitation has started. By contrast, fair remuneration legislation must necessarily include an

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ex post remuneration rule giving authors the right to demand an adjustment of the exploitationcontract if a work has outstanding success. If the paid honorarium appears disproportionatelylow in the light of a work’s later success, such an ex post rule ensures an appropriateremuneration against the background of verifiable sales and income figures. The introductionof an ex post remuneration mechanism may also encourage the conclusion of exploitationcontracts which, instead of merely providing for a one-time “buy out” honorarium, offercontinuous royalty payments based on a pre-defined revenue share.

Finally, the limitations of the present analysis must not be concealed. Bourdieu focuses onprofessional authors devoting time and effort to the creation of literary and artistic works.Hence, the rights and remuneration infrastructure that would be needed to support thecreativity of amateur creators falls outside the scope of the present inquiry from the outset.Guidelines for the application of copyright rules to amateur producers of user-generatedcontent can hardly be inferred from Bourdieu’s theoretical model. Therefore, the variousquestions90 raised by the increased participation of users in the creation of literary and artisticworks remain open.

90 For an exceptional case of a specific use privilege for user-generated content, see Art. 29.21 of the CopyrightAct of Canada, as introduced by Bill C-11, Copyright Modernization Act, adopted on 18 June 2012. As to thedebate on user-generated content and its impact on copyright law, see S.D. Jamar, ‘Crafting Copyright Law toEncourage and Protect User-Generated Content in the Internet Social Networking Context’, Widener LawJournal 19 (2010), p. 843; N. Helberger/L. Guibault e.a., Legal Aspects of User Created Content, Amsterdam:Institute for Information Law 2009, available at http://ssrn.com/ abstract=1499333; M.W.S. Wong,‘Transformative User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?’,Vanderbilt Journal of Entertainment and Technology Law 11 (2009), p. 1075; E. Lee, ‘Warming Up to User-Generated Content’, University of Illinois Law Review 2008, p. 1459; B. Buckley, ‘SueTube: Web 2.0 andCopyright Infringement’, Columbia Journal of Law and the Arts 31 (2008), p. 235; T.W. Bell, ‘The Specter ofCopyism v. Blockheaded Authors: How User-Generated Content Affects Copyright Policy’, Vanderbilt Journalof Entertainment and Technology Law 10 (2008), p. 841; S. Hechter, ‘User-Generated Content and the Future ofCopyright: Part One – Investiture of Ownership’, Vanderbilt Journal of Entertainment and Technology Law 10(2008), p. 863; G. Lastowka, ‘User-Generated Content and Virtual Worlds’, Vanderbilt Journal of Entertainmentand Technology Law 10 (2008), p. 893.

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