Comparative approaches to fair use: An important impulse for reforms in EU copyright law

Abstract

Fair use provisions in the field of copyright limitations, such as the U.S. fair use doctrine, offer several starting points for a comparative analysis of laws. Fair use may be compared with fair dealing. With the evolution of fair use systems outside the U.S., fair use can also be compared across different countries. The analysis may also concern fair use concepts in different domains of intellectual property. Instead of making any of these direct comparisons, the present analysis deals with another aspect of comparative analyses: the study of foreign fair use provisions as a basis for the improvement of domestic legislation. More specifically, the analysis will show that important impulses for necessary reforms in the EU system of copyright exceptions can be derived from a comparison with the flexible approach taken in the U.S. For this purpose, the legal traditions underlying the legislation on copyright limitations in the EU (civil law) and the U.S. (common law) will be outlined (section 1) before explaining the need for reforms in the current EU system (section 2). On this basis, strategies for translating lessons to be learned from the U.S. fair use approach (section 3) into the EU system will be discussed. This translation is unlikely to fail because of an inability or reluctance of civil law judges to apply open-ended norms (section 4). Under existing EU norms, however, a degree of flexibility comparable to the flexibility offered in the U.S. cannot be achieved (section 5). To establish a sufficiently flexible system, EU legislation would have to be amended (section 6 and concluding section 7).

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