EU Copyright 20 Years After the InfoSoc Directive – Flexibility Needed More Than Ever

In the copyright arena, the European Union (EU) is a champion of a restrictive approach to copyright limitations and exceptions (L&Es). In the 2001 Information Society Directive (ISD), the EU combined a closed catalogue of permissible L&E prototypes with the three-step test known from Article 9(2) of the Berne Convention (BC), Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Article 10 of the WIPO Copyright Treaty (WCT). Stipulating that L&Es could only be applied in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice legitimate interests of copyright holders, the EU created a worst-case scenario for cultural remix activities, socially valuable access to the cultural landscape and technological innovation. The closed list of pre-defined L&E prototypes, if anything, could have the advantage of enhanced legal certainty. This potential advantage, however, is beyond reach because of the unfortunate combination with the open-ended three-step test. If an EU Member State adopts and further specifies L&Es from the EU catalogue, these specific national L&Es may still be challenged on the grounds that they are incompatible with the three-step test. In other words, national L&Es – no matter how narrowly they are circumscribed in domestic legislation – may further be restricted by invoking the three-step test.