Dutch Research Reveals Wide Scope For Copyright Flexibilities In EU Laws

from the didn't-know-you-could-do-that dept

A couple of weeks ago, Techdirt wrote about a surprising initiative by the Netherlands to introduce new flexibilities into its copyright law. Given that leadership from the Dutch government, it's probably no surprise that a few days later, the Dutch Parliament also showed itself in the political vanguard by voting not to ratify ACTA for the time being.

The full text of the Dutch minister's speech is now available, and it's well worth reading for its clear analysis of the problem facing European copyright, and its suggested solution:

The big question, however, is whether copyright law currently provides enough opportunities to allow an effective response to these technological changes and other developments in the future. In my view, this is particularly relevant in the case of the closed list of exceptions to copyright in the European Information Society Directive. These exceptions are designed to allow new products and services to be developed through creative or transformative use of copyrighted work. They also allow copyright to be restricted in the case of work used for educational purposes, in academic research or in news reporting, as well as work used for libraries and archives.
As the minister mentioned in his talk, those exceptions are explored in some depth in a report by Professors Hugenholtz and Senftleben, entitled 'Fair Use in Europe. In Search of Flexibilities.' The conclusion gives an idea of just how much scope there is within existing European law to introduce a wide range of copyright exceptions:
As our analysis has demonstrated, the EU copyright acquis [body of law] leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions prima facie suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation, as is confirmed by actual legislative practice in various Member States. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized.

A Member State desiring to take full advantage of all policy space available under the Information Society Directive, and thus maximize flexibilities available at the EU level, might achieve this by literal transposition of the Directive’s entire catalogue of exception prototypes into national law. In combination with the [Information Society Directive's] three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. For less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, we recommend exploring the policy space left by distinct exception prototypes.
The ability to add all kinds of flexibilities to copyright law without breaching the Information Society Directive is clearly a real boon for EU governments who want to update their legislation for the digital age. But there is another notable advantage to taking this approach, as the authors note:
Member States aspiring to introduce flexible copyright norms are advised to take advantage of the policy space that presently exists in EU law, and not wait until initiatives to introduce flexibilities at the EU level materialize -- a process that could easily take ten years. In this way, national models can be developed and tested in practice that may serve as a basis for more flexible future law making at EU level.
The hope there seems to be that forward-thinking countries like the Netherlands might be able to set an example for Europe's future copyright legislation, and move it towards greater flexibility. A good place to start in that respect would be for the European Parliament to emulate the Dutch politicians and to ditch ACTA, one of whose pernicious effects is to limit the freedom of signatories to modify their own national copyright laws.

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  1. identicon
    Prisoner 201, 29 Feb 2012 @ 12:24am

    It's easy for Netherlands to talk about flexible copyright laws, they don't have any culture[1]. They just want to steal culture from the US.

    Filthy pirates.

    [1] I don't know of any $100M Hollywood movie from the Netherlands. QED; they have no culture.

    reply to this | link to this | view in thread ]

  2. icon
    That Anonymous Coward (profile), 29 Feb 2012 @ 12:42am


    OOTB is that you pumpkin? The meds seem to be helping.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 29 Feb 2012 @ 12:54am

    Oh no, this is no good at all. This is my black book. And now my hand is writing in my black book. ...My black book is a little large at the moment, it seems.

    ...Wait. This lists every country other than America.


    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 29 Feb 2012 @ 12:57am

    "almost as flexible as the fair use rule of the United States"

    You mean the thing that nobody's willing to risk a court loss to stand up for anymore?

    reply to this | link to this | view in thread ]

  5. icon
    That Anonymous Coward (profile), 29 Feb 2012 @ 1:30am


    So your in charge of the 301 report?
    Might I politely suggest you go ram your head up your.... nevermind...

    reply to this | link to this | view in thread ]

  6. icon
    surfer (profile), 29 Feb 2012 @ 1:52am

    Is it my imagination?

    Is it my imagination, or does the MAFIAA trolls lurk to be the first posting for every article attempting to debunk reality with posts like this one?

    chubby, pirate, theft and so forth? apparently the mindset of copywrong asshats is that of 'if your not for us, your a paedophile'.

    every time I read one of these mindless dribbles, I mentally read them in Cartman's voice from South Park, with everything ending with respect my authority!

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 29 Feb 2012 @ 1:54am

    Jeez! the entertainment industries and their agencies will be all over this! lobbyists will be rubbing their grubby little hands together at the thought of how much more their bank balances are going to increase by! how dare anyone suggest there should be more relaxed approach to copyright!

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 29 Feb 2012 @ 2:07am


    A Hollywood movie from The Netherlands, now that'd be something wouldn't it :) Art and culture is not about budget... but I see how that's hard to understand for a group of people who only care about money and themselves.

    Don't be so disdainful of countries and cultures far older than yours. Try to be open-minded. Legalizing prostitution and soft drugs: it works. Legalizing personal movie and music downloads: it works. They don't even need more flexible laws to download; it's already legal there. The Dutch people don't want to readily give up these acquired freedoms just because some foreign lobby tells them to.

    reply to this | link to this | view in thread ]

  9. icon
    Leander (profile), 29 Feb 2012 @ 2:36am


    It means that the Dutch justice system doesn't award special damages to the aggrieved party. So gettings sued over copyright infringement (which rarely happens) doesn't cost an arm and a leg.

    But, point taken...

    reply to this | link to this | view in thread ]

  10. icon
    Richard (profile), 29 Feb 2012 @ 2:58am

    Re: Re:

    sarc detector fail....

    reply to this | link to this | view in thread ]

  11. icon
    Richard (profile), 29 Feb 2012 @ 3:00am

    Re: Is it my imagination?

    You fell for it. Well done Prisoner 201 that was a brilliant parody!

    reply to this | link to this | view in thread ]

  12. identicon
    Prisoner 201, 29 Feb 2012 @ 3:05am

    Re: Re: Is it my imagination?

    Thank you, I was afraid it was a bit over the top, but then again, so are the usual maximalist trolls.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 29 Feb 2012 @ 4:00am

    Re: Re: Re: Is it my imagination?

    It's just that some of these funny posts are so real that I can't always tell the difference anymore. If it looks like a duck, swims like a duck, and quacks like a duck ... Good job :)

    reply to this | link to this | view in thread ]

  14. icon
    Marcel de Jong (profile), 29 Feb 2012 @ 4:01am

    Re: Re: Re: Re: Is it my imagination?

    zombie ducks?

    reply to this | link to this | view in thread ]

  15. icon
    Hephaestus (profile), 29 Feb 2012 @ 6:23am


    If copyright continues on the path it is on, you know "to infinity and beyond", it will fail in less than 15 years. What big content saw with SOPA, PIPA, and ACTA is just a small scale demonstration compared to what I see coming for them out of social media.

    reply to this | link to this | view in thread ]

  16. icon
    V (profile), 29 Feb 2012 @ 6:53am

    Dutch Oven?

    The main problem with that line of thinking is, just as their are broad interpretations for exceptions, there is also room for broad interpretations for draconian adaptations.

    And, of course, with the enormous lobbying budgets of Big Content (hereafter referred to as The Evil Empire), I foresee us on a collision course with complete lockdown.

    Where pirates are no longer those who copy or download songs, but are deemed those who lend a book, or let a friend listen to a song on their iPod, or even have the audacity to have people over to their house to watch a TV show on a premium channel.

    It's sad world we're headed towards.

    I'd like to believe that if our founding fathers were alive today, they'd be dumping iPods and DVDs into the bay instead of tea.

    But alas, men of good conscious and lovers of freedom no longer hold office. Like the Dodo bird, they are long gone... replaced by men of no conscious and lovers of money.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 29 Feb 2012 @ 7:41am

    You always have to frame these discussions within the measurement of "have and have not". Are the Dutch net copyright creators, or are they net copyright consumers?

    I think it is the latter.

    Copyright is becoming a class warfare issue, where the have nots are busy trying to plunder what the haves created, with little concern for the long term costs because, well, they want it now.

    reply to this | link to this | view in thread ]

  18. identicon
    Dane, 29 Feb 2012 @ 11:39am

    The Dutch are such crookd

    big time

    reply to this | link to this | view in thread ]

  19. identicon
    Dutch guy, 29 Feb 2012 @ 4:49pm

    @prisoner 201, our film industry is booming atm and alot of dutch movies and shows get sold to the us, one even adopted by steven spielberg, so suck it.

    Voice of america: was voice of holland thought up by john the mol, dutch media magnate.

    Nova zembla and sonny boy, zwart boek(black book), the sint all by dutch directors and all sold to the us.

    Yes we dont make 100 millon movies cause there are only 17 million people in the netherlands, so our movies most expensive one was 25 million(nova zembla,3dz) and i believe made a 4x profit in the netherlands alone in a month, yes it might not be as massive as the us , but relatively, its good sales, cause the dutch _are_ pirates by origin, we pretty much plundered afrika, india, new zealand, south america in the 17th century for all they were worth:) including slave trade and resources.

    Might i add btw the dutch have the most shitty digital content of all eu countries?If i had services such as netflix, spotify, itunes, crunchyroll, hulu etc the same as the us, piracy would drop hard. Hbo recently startes with a cable company last month, the company has 7 million members, 3 million people have signed up for hbo, so 50%~ signed up.

    That being said i have hbo, and i like it but, i guesss compared to us censored tv, it doesnr have the nude/violence advantage as much here.

    Considering moch cannabalism and organ sale progams and sex education for teens get showed around 8 pm here, please try to shock us^^

    reply to this | link to this | view in thread ]

  20. identicon
    MER, 2 Mar 2012 @ 5:50am

    ACTA = American Copyright Terrorism Act

    reply to this | link to this | view in thread ]

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