Unsticking the centre-piece – the liberation of European copyright law?
Following European legislative initiatives in the field of copyright limitations and exceptions, policy flexibilities formerly available to mem-
ber states has been greatly diminished. The law in
this area is increasingly incapable of accommodating any expansion in the scope of freely permitted
acts, even where such expansion may be an appropriate response to changes in social and technological conditions. In this article, the causes of this problem are briefly canvassed and a number of potential
solutions are noted. It is suggested that one such solution – the adoption of an open, factor-based model
similar to s 107 of the United States’ Copyright Act
– has not received the serious attention it deserves.
The fair use paradigm has generally been dismissed
as excessively unpredictable, contrary to international law and/or culturally alien. Drawing on recent
fair use scholarship, it is argued here that these disadvantages are over-stated and that the potential
for the development of a European fair use model