Fordham International Intellectual Property Conference
Copyright Panel: Rethinking Exceptions & Limitations

[Moderator: Mary Wong]
[Speaker: Mihaly Ficsor, Dr. Reto Hilty, Jerome H. Reichman, Emily Hudson, Antoine Aubert, Maria Pallante]
[Panelists: Lionel Bentley, Tilman Luder]

– Not a verbatim transcription —

[Dr. Reto Hilty]
We need some protection, but not too much.
We have several different interests — creators, tangiental rights holders, users.
Three step test in copyright law is different from the same-named-one in industrial property rights. This one focuses on the interests of the rights-holders only.
It is unclear who is the rights-holder. Can be the original, or the subsequent. Who’s rights prevail?
There is a risk of the use of the test
<>Have to create incentives to invest.
We should design limitations in a way they are able to differentiate with regard to different uses. Different market situations — market exclusivity or not. Tech protection measures or not?
Dont limit to traditional limitations. Traditionally focused on the end users. Infrequently giving rights to competitors. We should do more; rather we should introduce some form of comlusory licensing for competitor. Remuneration could be negotiated.
Compulsory licensing is not new. We have it in patent law for the avoidance of anticompetitive behavior.

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[Mihaly Ficsor]
Munich Declaration. Addressing one of the key points — when correctly applied, the three-step test requires … no single step is dispositive. they are equally applied.

What should be: the steps should be applied in order. If one has a statute of limitations that is expired, the whole fails.

Main point is: that neither the text or the interpretation is broken — contrary to what Munich Declaration alleges.
The test is sufficiently flexible.
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[Jerome Reichman]
About sustaining science … in response to the EC Green Paper.
No justification for downstream uses of scientific publicatiosn past the first sale. Publishers should be able to charge reasonable rates for service. But, it should be done as an ex ante process. Not exclusive rights in published results. All government funded research should be available in a public repository.
With regard for exceptions and limitations, they are willfully insufficient in both US and EU formulations.

We have to have a variation of fair use to deal with all different cases. Strength of US fair use is that it is normatively well informed with the included exceptions. Weakness is that in close cases it is all or nothing — this leads to confusion.
The three step test does produce useful guidance. The US could adopt. eBay v. Merck decision would allow US courts to use equitable powers. The other one is TPM case.

Consider the reverse notice and takedown regime. this must be countered by a misuse doctrine.
Also data protection directive must be aligned, or else getting nowhere.
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[Lionel Bentley]
Since Nov. 2007, there was a consultation process and we have nothing to show … They have abandoned the exception for parody, deferred on issue of format-shifting, sying it was too difficult.

The do-nothing approach is actually better here.If a parody case did come before the UK court, there is great flexibility for it to be permitted.
Pushing for levys or payments for format-shifting. The best way to go is to let it happen without levy.
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[Reichman] If the Commission understood, they would make it easy for science to use these tools. The stakes are high, and it doesn’t pay to take an anti-intellectual stand.

[Question] Found the Munich declaration on 3-step test to be helpful, from library community’s perspective. Viewing it as a legislative tool for drafting, but that is it. However we see it appearing in legislation. Thoughts?

[Ficsor] Agree that 3Step test should be applied in different ways, for different situations. The only dispute is the structure. The dispute is really between Prof. Hily and Prof. Ulmer.
The test is suitable if it is applied appropriately. We shouldn’t take a new structure, contrary to Prof. Ulmer.

[Question] Jamie Love:
There is a US exception for government uses. Art. 44(2) of TRIPs has this provision.

[Ficsor] Art.44(2) is a general provision, it doesn’t apply specifically to IP. There are specific provisions in TRIPs that deal with IP.

[Reichman] Every government has the power, but it doesn’t have anything to do with At.44. Whether you can enlarge the use of Art.44 in this way is a very complicated question that we cannot answer.

[Question] To what extent does the 3Step test apply to an extensive collective license?

[Ficsor] Believes there is a similarity to the Goole Print settlement to the extensive collective license. There are some differences. Not collective management, although the registry to be established will act like one. Question of whether it will be a monopoly. this issue will be discussed tomorrow.

[Luder] Colecting societies cannot solve all the problems! Didn’t google pretty much just set up their own collecting society? With authors opting in or opting out. Saying that this society is dedicated exclusively to clear material for google uses!

[Aubert] You are misunderstanding the use. It will be open to competitors.

[Pallante] Remeber that photographs are not part of the settlement and these make up a significant part of works.