Browsing by Author "Rendas, Tito Filipe Bugia"
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- Exceptions in EU copyright law : in search of a balance between flexibility and legal certaintyPublication . Rendas, Tito Filipe Bugia; Antunes, Henrique Mário Nunes Sousa; Hugenholtz, BerntCopyright exceptions fine-tune the reach of authors’ exclusive rights. They treat certain categories of unauthorised uses that fall within the prima facie scope of such rights as non-infringing, fostering a compromise between the private interests of rightholders and the broader public interest in the access to and dissemination of literary and artistic works. In EU copyright law, in particular, exceptions provide a vital counterweight to the wide scope of exclusive rights in the acquis communautaire. The core of the EU law on copyright exceptions is enshrined in 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 (Information Society Directive). Its controversial Article 5 lays down an exhaustive catalogue of carve-outs to the rights of reproduction and communication to the public harmonised therein, most of which are optional for Member States to transpose. The concrete application of the transposed exceptions is subject to the control of an openended clause known as the three-step test. In addition, over the last decade, the Court of Justice of the European Union has been developing a series of metarules that guide the implementation, interpretation and application of these exceptions. This thesis is concerned with the debate on whether this broad set of rules – referred throughout the study as the “InfoSoc framework of exceptions” – should be rethought in light of the demands of flexibility and legal certainty. These two concepts encapsulate the prevailing policy arguments in the InfoSoc debate: while a number of scholars call into question the flexibility and legal certainty provided by the InfoSoc framework, the opposing faction engages in the converse exercise, arguing for the preservation of the status quo. The thesis advances a refined and theoretically grounded understanding of flexibility and legal certainty, breaking them down into a set of objectives and assessment criteria, in order to enable a systematic examination of whether the existing framework of exceptions achieves an adequate equilibrium between these two often-conflicting values. The analysis of the InfoSoc framework’s structural features against this conceptual apparatus reveals their incapacity to promote flexibility and legal certainty to a proper extent. This finding inevitably leads to a crucial normative question: how should the InfoSoc framework of exceptions be reformed? The thesis identifies, systematises, synthesises and critically assesses the various reform proposals that have been advanced in the literature to date. As an alternative to these proposals, which are deemed unsatisfactory, it is submitted that the InfoSoc framework of exceptions should be restructured as a multi-tiered framework – a framework that combines an enumeration of rulelike exceptions for specific and identifiable uses with a standard-like provision that grants courts the discretion to decide, on a case-by-case basis, whether unenumerated uses should be considered infringing or non-infringing. Furthermore, the thesis responds to a series of expected objections and critiques to the proposed model and applies it to test scenarios modelled after well-known cases on unconsented-to digital uses. Following the missed opportunity of the recent Directive (EU) 2019/790 of the European Parliament and of the Council, of 17 April 2019, on copyright and related rights in the Digital Single Market – which failed to go about a structural review of the InfoSoc framework that would tackle its most pressing problems –, the thesis ultimately tries to pave the way for a true reform of the EU law on copyright exceptions.