Non-Commercial Quotation and Freedom of Panorama: Useful and Lawful?

• Author: Eleonora Rosati
• Pages: 311-321

Non-Commercial Quotation and Freedom of Panorama

2017

311

4

Non-Commercial Quotation and

Freedom of Panorama

Useful and Lawful?

by Eleonora Rosati*

© 2017 Eleonora Rosati

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Ele onora Rosati, Non-Commercia l Quotation and Freedom of Panor ama: Useful and Lawful ?,

8 (2017) JIPITEC 311 para 1.

Keywords: Copyright; freedom of panorama; quotation; exceptions and limitations; InfoSoc Directive; non-

commercial exceptions and limitations; for-profit; CJEU; Article 5 InfoSoc Directive

ings deriving from different approaches to the same

permitted uses of copyright works across the EU, as

well as the resulting (negative) impact on the very

objective underlying adoption of the InfoSoc Direc-

tive: harmonization. This contribution concludes that

– in general terms – diverging approaches to copy-

right exceptions, including limiting the availability of

certain exceptions to non-commercial uses, may be

both impractical and contrary to the system estab-

lished by the InfoSoc Directive.

Abstract: This contribution seeks to assess

both the practical implications and lawfulness of na-

tional copyright exceptions that – lacking a corre-

sponding provision in Article 5 of Directive 2001/29

(the InfoSoc Directive) – envisage that the only per-

mitted use of a copyright work for the sake of the ap-

plicability of a certain exception is a non-commercial

one. By referring to different national exceptions al-

lowing quotation and freedom of panorama as case

studies, the paper shows some of the shortcom-

A. The system of the

InfoSoc Directive

1 One of the objectives that EU legislature sought to

achieve by adopting Directive 2001/291 (the InfoSoc

Directive) was the harmonization of certain aspects

* Associate Professor in Intellectual Property Law (University

of Southampton). This study was prepared thanks to a

grant of the Wikimedia’s Free Knowledge Advocacy Group

EU Grant Program. The views and opinions expressed are

however only those of the Author, who can be contacted by

email at eleonora@e-lawnora.com.

1 Directive 2001/29/EC of the European Parliament and of

the Council of 22 May 2001 on the harmonisation of certain

aspects of copyright and related rights in the information

society, OJ, L 167, pp 10-19 (‘InfoSoc Directive’).

of substantive copyright law. Without intervention

at the EU level, diverging national approaches would

result in different levels of protection and – from an

internal market perspective – restrictions on the free

movement of services and products incorporating,

or based on, intellectual property.2 Such risk would

also become more acute in light of the challenges

facing technological advancement.3

2 In parallel with the harmonization of the exclusive

rights of reproduction (Article 2), communication

and making available to the public (Article 3), and

distribution (Article 4), the InfoSoc Directive also

2 InfoSoc Directive, Recitals 6 and 7.

3 InfoSoc Directive, Recital 7.