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

Author:Eleonora Rosati
Pages:311-321
SUMMARY

This contribution seeks to assess both the practical implications and lawfulness of national copyright exceptions that - lacking a corresponding provision in Article 5 of Directive 2001/29 (the InfoSoc Directive) - envisage that the only permitted use of a copyright work for the sake of the applicability of a certain exception is a non-commercial one. By referring to different national exceptions ... (see full summary)

 
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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.

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