Report by Aline Iramina, Bartolomeo Meletti & Matteo Frigeri
On the 31st of October, members of CREATe had the pleasure to take part to “Rethinking copyright flexibilities“, a two-day conference organised by the Department of Law of the University of Cyprus, Scuola Superiore Sant’Anna (Pisa) and the H2020 project ReCreating Europe. In the opening session, we had Professor Caterina Sganga presenting the Copyright Flexibilities database developed by the ReCreating Europe project.
The leitmotif of all the presentations in the programme was a systematic, critical, and forward-looking reflection on copyright’s ability to balance the private interests of right holders with the public interest goals it is meant to foster through in-built flexibilities. A non-exhaustive list of these public objectives may include: access to culture, dissemination of information and knowledge, creativity, and freedom of speech.
These reflections were systematic – or rather, systemic – in so far as they analysed copyright in light of the existing regulatory and institutional framework: the corpus of international and European harmonisation developed in the past 150 years, as well as the institutional contexts and structures within which new copyright rules can be informed. An excellent example of that was Dr Bernd Justin Jütte’s exposition on how the “constitutional” aims of the EU – e.g., the high level of environmental protection and the promotion of scientific and technological advance expressed in Art 3 of the Treaty on European Union (TEU) – could act as fundamental principles for reforming copyright law. A parallel could be drawn with Professor Tanya Aplin discussion of “Global Mandatory Fair Use”, a book co-written with Professor Lionel Bently. Their presentation argued how the quotation exception in Article 10 of the Berne Convention constitutes a global, mandatory, fair-use provision, guiding us through their meticulous analysis to suggest how this exception should – or could – be implemented in all national systems.
Most speakers were also critical of the copyright system as it stands, especially in its ability to adapt and keep pace with developments in new technologies. For example, Dr Ioannis Revolidis in his presentation illustrated how the Court of Justice’s interpretation of the right of communication to the public may compromise the future economic viability of business models or marketplaces for the exchange of NFTs. Professor Sean Flynn’s empirical study on the adoption of research exceptions across the world raised awareness about both the inequality between countries in terms of research rights and access to resources, as well as the difficulty that disharmonised copyright legislation creates for multilateral research projects.
All presentations were also forward-looking; one of the aims of the conferences was to look at the future of “copyright flexibilities”, to draw a picture of possible reforms or way forward. Professor Philippe Jougleux in his presentation, after reviewing the evolution of the concept of interoperability and its application in the Software Directive, invited the public to imagine how this concept may develop further into a more general right of access in the context of the metaverse. In a similar vein, Professor Martin Senftleben explored whether the time has come to recognise copyright exceptions as user rights, especially considering the important fundamental rights that such exceptions are meant to preserve.
The programme was very rich, which means that a more comprehensive impression of the contributions is not possible in the short space of a blog post. However, most of these presentations will surely soon appear as publications, adding up to the scholarly work so far produced on copyright flexibilities and future possibilities.
A concise summary of the main panels follows below.
On the first day, the conference started with a panel on copyright internal limits – either in the forms of explicit exceptions, or as a delimitation of the scope of copyright itself (e.g., the expression-idea doctrine, whereby copyright only protects expression, not mere ideas or information). Mirroring Professor Marie-Christine Janssens’s review on the limits of copyright was Professor Elena Rosati’s illustration of the incursions of intellectual property on the public domain, and the dangers that this expansion may pose.
The second panel of the opening session consisted of presentations by Professor Tanya Aplin, Dr Bernd Justin Jütte, Professor Thomas Dreier, and Professor Martin Senftleben. A common thread can be identified in the “constitutional nature” of the transformations of the scope of copyright, either stemming from international law, fundamental rights or the general objectives set by the European Institutions. As the title of the panel indicates, the discussion focused on the public regulatory sources of copyright.
This panel was followed by a presentation on the private regulatory sources of copyright – the private ordering of rights. Professor Orit Fischman Afori argued how public law standards could be incorporated into the regulation of Online Content Moderation. The speech was complemented by Professor Péter Mezei who presented the result of his empirical study shedding light on how EULAs reconfigure the applicable exceptions and limitations, while Sebastian Shwemer analysed the new due diligence obligations introduced by the Digital Services Act, particularly those involving content moderation algorithms, and how they relate to copyright flexibilities.
The theme of the third panel was premised on the idea that copyright should balance different – and often conflicting – interests, continually finding a new equilibrium as the system changes. It then invited speakers looking at copyright from different, sometimes diverging, positions to provide their perspectives on the developments of copyright in recent years. In order, presentations were delivered by Marco Giorello – Head of the Copyright Unit at the European Commission – Maciej Szpunar – 1st Advocate General of the Court of Justice and often referred to as “the copyright Advocate-General”- and Mark du Moulin – Secretary General at the European Composers Association.
The concluding panel was on the new paradigms for copyright flexibilities, challenging the underpinning assumptions supporting our copyright legislation. The panel started with PhD candidate Leo Pascault’s reflections on the commodification of openness, adopting a Marxist approach to reveal the power dynamics produced by the legal system. Professor Cristiana Sappa introduced us to a specific instance of the commodification of the commons: the licensing of images of artworks in the public domain. Professor Philippe Jougleux, as previously mentioned, queried how our conceptions of freedom of access and interoperability may further evolve in the metaverse. Professor Sean Flynn – also mentioned in the introduction – presented the findings of his recent co-authored paper on the research exception in comparative copyright law.
On the second day, the conference continued with five panels contrasting copyright flexibilities with fixed concepts, platforms’ rules, EU legislation and contracts. Chaired by Professor Tanya Aplin, the first panel had Dr Ioanis Revolidis and CREATe researcher Matteo Frigeri whose presentations focused on the necessity of revisiting copyright-fixed concepts and adopting more flexible rights for the digital world.
The second panel, chaired by Professor Péter Mezei, concentrated on the various aspects involving copyright flexibilities and the role of online platforms with presentations by Professor Thomas Margoni, PhD Researcher Giorgos Vrakas and CREATe PhD researcher Aline Iramina. Professor Thomas Margoni presented his work on ‘Algorithmic propagation: do property rights in data increase bias in content moderation?’, in which he explores, along with Dr Joao Quintais and Dr Sebastian Schwemer, the risks of bias propagation present in input data to algorithmic content moderation tools and possible mitigation measures to these risks. Giorgos Vrakas presented his empirical research on users’ interactions with YouTube Notice-and-Takedown system, while Aline Iramina talked about the new rules and standards on algorithmic transparency and their implications for the copyright system in the UK and the EU.
The third and four panels centred the discussions on the evolution of EU legislation concerning copyright flexibilities. Chaired by Thomas Dreier, the third panel started with Dr Maria Daphne Papadopoulos’s presentation, which provided a critical analysis of the exceptions and limitations introduced by the new copyright directive. Next, PhD candidate Ana Lazarova analysed the new press publishers’ rights in face of information copyright exceptions. In his presentation, Professor Philipp Homar introduced his research on private copying in the cloud. Finally, PhD researcher Anthony D. Rosborough presented his paper ‘Zen and the Art of Repair Manuals: Enabling a Participatory Right to Repair Through An Autonomous Concept of EU Copyright Law’, where he explores whether art. 5(3)(1) Infosoc Directive can be employed to enable non-profit participatory repair activities.
The fourth panel, chaired by Dr Bernd Justin Jütte, also had great presentations. Dr Abigail Rekas talked about accessibility duties and copyright law, emphasising the importance of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) to ensure accessibility rights in the EU. With a focus on the application of the parody and pastiche exception in the digital environment, Martin Taimr analysed the meaning of pastiche in a copyright context, while Professor Matija Damjan discussed the importance of Internet memes for online freedom of speech. Finally, Professor Branka Marusic talked about how AI systems can be a facilitator for online education.
After two wonderful days of the conference, the last panel, chaired by Professor Orit Fischman Afori, focused on the discussions involving copyright flexibilities and contracts and their impact on creativity. Opening the panel, Dr Rudolf Leska introduced the empirical research he conducted with Pavel Zahradka on Remuneration or Exception? Compelling issues for sampling and remix artists after “Kraftwerk”. Next, CREATe Creative Director Bartolomeo Meletti presented the Code of Best Practices in creative reuse, which he co-authored with Dr Stef van Gompel as part of ReCreating Europe. PhD candidate Georgia Jenkins discussed her research findings on licensing rights, particularly the idea of an implied authorisation to support creativity online. Dr Alina Trapova shared her initial thoughts on her research project on artificial intelligence as a vehicle for creativity and the role of copyright contracts in this context. To conclude this panel, PhD candidate Rachael Drury introduced her research on the impact of automated composition systems created with machine learning on the music industry, particularly the idea of music as data from an EU and UK perspective.
With the participation of senior and early academic researchers, as proposed, the conference was very successful in presenting some critical thinking on the state of the art, the evolution, and the future perspectives of copyright flexibilities in Europe. It was nice to see so many researchers focusing their studies and projects on the public interest aspects involving copyright law. Congratulations Professor Tatiana Eleni Synodinou, Professor Caterina Sganga and all organisers for hosting such a great conference.
Short summaries of CREATe team members’ presentations at ReCreating Europe Conference:
Aline Iramina presented the initial findings of her PhD research on “Copyright Governance by Algorithms: Towards a more transparent regime?”. Working with the concepts of ‘copyright governance by and of algorithms’, her research analyses how algorithms have been employed as a tool of governance by online platforms to influence and constraint users’ online access to copyright works and how governments and other stakeholders have responded to that to control their use. The focus of her PhD research is on transparency mechanisms employed by private actors and states through different governance systems (e.g., self-regulation and state regulation) as a primary solution to regulate the use of algorithms. At ReCreating Europe conference, Aline presented her draft paper on “Copyright Governance of Algorithms: rules and standards on algorithmic transparency”. Drawing on Amitai Etzioni’s theory on transparency, she analysed the recent algorithmic transparency rules that apply to copyright cases adopted in the EU and the UK in different legal fields, particularly copyright law, competition law, platform regulation, privacy and data protection law and artificial intelligence regulation.
Bartolomeo Meletti presented the work he conducted with Prof Stef van Gompel (IViR, University of Amsterdam) on the Codes of Best Practices in Creative Reuse for the ReCreating Europe consortium. The project – inspired by the Codes of Best Practices in Fair Use pioneered by professors Patricia Aufderheide and Peter Jaszi – intended to help creators make informed decisions around the lawful reuse of audiovisual works while giving sector-specific meaning to some of the ambiguous notions embedded in European copyright exceptions. At the beginning of his presentation – titled Codes of Best Practices in Creative Reuse: Making Copyright Flexibilities a Viable Option for Creators – Bart presented the main findings of a series of online workshops conducted in 2020-21 which aimed to capture the most pressing copyright-related issues faced by two creative communities in two jurisdictions: documentary filmmakers and curators of immersive experiences in the UK and the Netherlands. The findings of this first round of workshops are described in the issue reports available on the ReCreating Europe website. The next step in the project was a series of deliberative exercises designed to enable participants to discuss their creative practice and agree on principles and norms of fair practice in creative reuse. The findings of these exercises were then used to draft a Code of Best Practices in Creative Reuse for documentary filmmakers and one for curators of immersive experiences. It is worth noting that each code focuses on what the law permits in both the UK and the Netherlands, whereby helping creators evade some of the thorny issues of territorial legal differences that may exist between the two countries and that was identified as a major concern from participants during the first round of workshops.
In his presentation, Matteo Frigeri considered the recent judicial developments at the EU level on the scope of both copyright and lending rights, specifically looking at how the existing jurisprudence affects the abilities of national libraries to offer an e-Lending service to the public. The importance of this debate is underlined by the recent obstacles in agreeing on which e-Lending model best serves both libraries’ and publishers’ interests. As a result of the CJEU’s judgement in C-263/18 Tom Kabinet (2019), and despite the earlier recognition of a public exception for e-Lending in C-174/15 VOB (2016), e-Lending can largely still be characterised as a commercial service to libraries regulated by a complex web of national laws and contractual licences shaped by diverging interests and market forces.
These reflections were developed in the context of CREATe project “The Law and Economics of e-Lending in Europe”, commissioned by Knowledge Rights 21.
In its conclusion, the presentation outlines the objectives of the project: to describe the existing competitive dynamics of the e-Lending market for Educational and Trade eBooks to evaluate the need for policy interventions from both a Competition and IP law perspective. The focus of the next phase will therefore be to gather empirical evidence to better understand this market and generate policy-relevant findings.