Explanatory notes on MOU Concerning the Interpretation of the Right of Quotation
These explanatory notes to the MOU Concerning the Interpretation of the Right of Quotation were prepared by Martin Senftleben, Professor of Intellectual Property, VU University Amsterdam; Senior Consultant, Bird & Bird, The Hague. You may also download a PDF copy.
The preamble reflects several fundamental considerations that lie at the core of the following guidelines.
The first recital recognizes the importance of the protection of copyright and related rights with regard to the creation and dissemination of literary and artistic works. This recital recalls the preamble of the Berne Convention (BC) referring to "…the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works" as well as the preamble of the WIPO Copyright Treaty (WCT) also expressing the desire "…to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible". By underlining the importance of copyright and related rights, the first recital clarifies that no departure from this international acquis is intended.
The second recital refers to the mandatory nature of the right of quotation in the Berne Convention. Whereas other provisions of the Berne Convention that offer room for the adoption of a limitation or exception use the formula "[i]t shall be a matter for legislation in the countries of the Union…",1 the right of quotation is set forth in Article 10(1) BC by stipulating that "[i]t shall be permissible to make quotations from a work…" The prevailing2 French text of the Convention confirms this mandatory nature by clarifying that "[s]ont licites les citations tirées d'une oeuvre" instead of using the general formula "[e]st réservée aux législations des pays de l'Union la faculté de permettre…" The mandatory nature of the quotation right is also recognized in literature.3
The third recital is modeled on the Agreed Statement Concerning Article 10 of the WIPO Copyright Treaty. Article 10 WCT contains the three-step test in international copyright law that can also be found in Article 9(2) BC and Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Agreed Statement reads as follows:
It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extent into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment. It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.
This balanced Agreed Statement, allowing the extension of traditional and the development of new exceptions and limitations with regard to the digital environment, is the result of the deliberations at the 1996 WIPO Diplomatic Conference that led to the adoption of the WIPO Internet Treaties. At the Conference, the need to ensure limitations a proper ambit of operation was underlined by several delegations. The basic proposal for the later WIPO Copyright Treaty already noted with regard to limitations that
when a high level of protection is proposed, there is reason to balance such protection against other important values in society. Among these values are the interests of education, scientific research, the need of the general public for information to be available in libraries and the interests of persons with a handicap that prevents them from using ordinary sources of information. 4
At the Diplomatic Conference, the delegations voted not only on the individual Articles of the WIPO Copyright Treaty but also on the accompanying Agreed Statements. The Agreed Statement Concerning Article 10 was adopted unanimously. Pursuant to article 31(2)(a) of the Vienna Convention on the Law of Treaties, "any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty" forms part of the context for the purpose of interpretation. Therefore, the Agreed Statement Concerning Article 10 constitutes a strong source of interpretation. In contrast to statements which can be found in the travaux préparatoires and merely rank among the supplementary means of interpretation, it must be considered directly in connection with the treaty text itself.5 The WIPO Copyright Treaty thus clearly expresses the permission to carry forward and appropriately extend into the digital environment the right of quotation as one of the limitations accepted under the Berne Convention.
Recitals 4 and 5 reflect case law of the Court of Justice of the European Union (CJEU). In the case Eva Maria Painer/Standard VerlagsGmbH concerning the unauthorized use of photographs in press publications, the Court explained with regard to the quotation right laid down in Article 5(3)(d) of the EU Information Society Directive (ISD)6 that
Article 5(3)(d) of Directive 2001/29 is intended to strike a fair balance between the right to freedom of expression of users of a work or other protected subject-matter and the reproduction right conferred on authors. That fair balance is struck, in this case, by favouring the exercise of the users' right to freedom of expression over the interest of the author in being able to prevent the reproduction of extracts from his work which has already been lawfully made available to the public, whilst ensuring that the author has the right, in principle, to have his name indicated. 7
Against this background, recital 4 recalls that the right of quotation serves the purpose of safeguarding freedom of expression and information. In line with the emphasis laid on a "fair balance" in the Painer case, recital 5 underlines that in the context of the right of quotation, an appropriate balance must be struck between the protection of copyright and related rights on the one hand, and freedom of expression and information on the other hand. A similar recital can be found in the preamble of the WIPO Copyright Treaty. It recognizes the need "to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention."
Recitals 6 and 7 express objectives underlying the following guidelines. These guidelines are given to enhance legal certainty in the application of the right of quotation and pave the way for a more consistent approach to the right of quotation across EU Member States.
Concept of quotation: Guideline 1
In the context of the right of quotation, the term "quotation" is often understood to entail an inherent confinement of the use privilege to a reference that is made for the purpose of discussing and commenting upon the quoted material. In the aforementioned Painer case, for instance, the Advocate General expressed the view that
[t]he notion of quotation is not defined in the [EU Information Society Directive]. In natural language usage, it is extremely important for a quotation that third-party intellectual property is reproduced without modification in identifiable form. As is made clear by the general examples cited in Article 5(3)(d) of the directive, according to which the quotation must be for purposes such as criticism or review, this is not sufficient in itself. There must also be a material reference back to the quoted work in the form of a description, commentary or analysis. The quotation must therefore be a basis for discussion. 8
Similar approaches can be found in national jurisprudence. The German Federal Court of Justice, for instance, requires an inner connection between the quoted material and the line of reasoning of the person making the quotation. In this vein, the Court posited that a quotation should serve as a basis for comment and discussion. A mere reference without inner connection is not sufficient.9 Similar positions are taken in literature.10
While the inherent confinement of the quotation right to takings serving the purpose of description, commentary or analysis may have evolved in certain national copyright systems, neither the text of the international quotation right set forth in Article 10(1) BC nor the text of the EU quotation right laid down in Article 5(3)(d) ISD seem to require this restrictive reading. Article 10(1) BC reads as follows:
It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
In line with this international provision, Article 5(3)(d) ISD stipulates as follows:
Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: (d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose.
In both provisions, the term "quotations" is used in a neutral sense without indicating an inherent confinement to a description, commentary or analysis. Article 5(3)(d) ISD explicitly refers to "purposes such as criticism or review". This reference would seem unnecessary if the term "quotations" already included a confinement to criticism or review. The words "such as" moreover indicate that "criticism or review" merely serve as examples of legitimate purposes. The quotation right in the Information Society Directive, thus, is not necessarily confined to these specific purposes.
National approaches to the right of quotation confirm that this more flexible understanding of the quotation right - not assuming an inherent confinement to commentary, analysis or comparison - is defensible. The quotation right in Article 15a of the Dutch Copyright Act, for instance, traditionally covers use in an announcement besides use in a review, polemic discussion or scientific treatise. In the course of implementing the Information Society Directive, the Dutch legislator decided to further broaden the scope of the right of quotation. In the amended version, the provision is also applicable to expressions serving comparable purposes.11
It is also noteworthy that, in the Painer case, the CJEU refrained from adopting the above-quoted view expressed by the Advocate General that a quotation required a material reference back to the quoted work in the form of a description, commentary or analysis. Instead, the Court felt that the case could be decided "without ruling […] on the question of whether the contested photographs were in fact used for the purpose of quotation."12 The question of the context in which a quotation must take place was thus left open. Against this background, Guideline 1 seeks to preserve the flexibility of the quotation right laid down in the Information Society Directive by pointing out that the term "quotation" need not be understood to require use in the context of a description, comment or analysis.
Having clarified that it is not advisable to derive an inherent confinement of legitimate quotation purposes from the term "quotation", it is recalled in Guideline 2 that quotations, in any case, are permissible for criticism, comment and review. This follows clearly from Article 5(3)(d) ISD.
As pointed out above, Article 5(3)(d) ISD refers to "purposes such as criticism or review". The words "such as" indicate that further purposes may be legitimate. The drafting history of the international quotation right can serve as a source of inspiration in this regard. In their leading commentary on the Berne Convention, Ginsburg and Ricketson draw the conceptual contours of the right of quotation as follows:
Nevertheless, it is clear from the preparatory work for the Conference and the discussions in Main Committee I that quotations for "scientific, critical, informatory or educational purposes" are within the scope of article 10(1). Other examples are quotations that are made in historical or scholarly writing by way of illustration or evidence for a particular view or argument. Again, in the 1965 report of the Committee of Experts reference was made to quotations for judicial, political, and entertainment purposes. Finally, another instance that was given in both the programme and the discussions in Main Committee I was quotations for "artistic effect". This did not only mean the reproduction of "artistic works" or parts of such works for the purpose of illustrating a text or to provide the basis for discussion, as in the case of a book on artistic styles, but also the quotation of works in general for "artistic effect" as in some modern works of fiction or poetry. 13
Support for the inclusion of quotations for "artistic effect" - covering the use of pre-existing material in a new cultural creation - can be found in several EU Member States. The Federal Constitutional Court of Germany, for instance, held in its landmark Germania 3 decision that in light of the freedom of artistic expression embedded in Article 5(3) of the German Constitution, the quotation right deserved broad application with respect to artistic works. The case concerned a play that contained extensive quotations, for a total of four pages, from a pair of Berthold Brecht plays. According to the Court, authors, to a certain degree, had to accept that works of art gradually entered the public domain. Copyright exemptions should be interpreted accordingly, and reflect a balancing of relevant interests. In the case at hand, the Court considered that the commercial interests of the copyright owner should give way to the user's interest in providing artistic commentary.14
In the Netherlands, similar considerations led to the above-described broadening of the right of quotation in the context of the implementation of the Information Society Directive. As explained above, the Dutch quotation right is no longer confined to use in an announcement, review, polemic discussion or scientific treatise. It also covers use for "comparable purposes". With this extension, the Dutch lawmaker sought to clarify that a quotation "from or in a work of art, such as an image or sound quotation" was possible.15
Against this background, Guideline 3 recognizes, as a further legitimate purpose for making a quotation, the inclusion of pre-existing protected material in a new cultural creation. This Guideline can also be understood to establish a link with the US fair use doctrine where the so-called "transformative" character of the unauthorized use constitutes an important factor capable of tipping the scales in favour of a finding of fair use. For being considered "transformative" in a US context, the use must aim to employ the protected material in a different manner or for a purpose different from the original. Mere repackaging or republication is insufficient.16
In the context of the US fair use doctrine, it has also been recognized that user-generated content, such as a Harry Potter lexicon providing an overview and description of all elements of the Harry Potter books, can have a transformative character.17 Given recent initiatives in Canada to broaden the scope of copyright limitations to exempt user-generated content,18 Guideline 3 also points out that the right of quotation may justify the inclusion of pre-existing material in a new cultural creation that constitutes user-generated content.
Guideline 4 seeks to bring advanced search engine services, such as image search services displaying pictures in reduced size ("thumbnails"), within the scope of the right of quotation. Under the US Copyright Act, quotations of this kind have been held to constitute fair use. Pointing out a significant benefit to the public, the US Court of Appeals noted in the case Perfect 10/Amazon.com that "a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work."19
Similar conclusions have been drawn on the basis of the right of quotation in the Netherlands. The Court of Appeals of Arnhem concluded, in a case concerning a search engine collecting information from online databases of housing agencies, that the quotation right could be invoked with regard to search results produced by Internet search engines. The "Zoekallehuizen.nl" search engine for the housing market displayed a small picture thumbnail of houses or apartments relevant to the search request, the first lines of the description of the houses or apartments concerned, and information about the address, price and the agent involved. Via a deep link, Zoekallehuizen.nl indicated the source website from which the material had been taken. In the Court's view, these search results "announced" the contents of underlying source websites. The Court thus qualified the search results as an expression that was comparable to traditional forms of quotation.20 The court was satisfied that Zoekallehuizen.nl had not taken more material than necessary to enable users to find potentially relevant housing offers on the Internet.
In EU Member States with a more restrictive approach to the right of quotation, the courts could not solve comparable search engine cases on the basis of the right of quotation. Instead, they resorted to doubtful assumptions about implied consent given by the copyright owner when posting material on the Internet,21 or to the application by analogy of the safe harbours available under the EU E-Commerce Directive.22 With a broader application of the right of quotation in line with case law in the Netherlands, this questionable expansion of the rules governing implied consent or safe harbour provisions can be avoided. Against this background, Guideline 4 lists announcements, including the display of online content by search engines, as a further example of a legitimate quotation purpose.
As quotations are permissible for purposes "such as" criticism or review under Article 5(3)(d) ISD, Guideline 5 recalls that quotations may also be found to be permissible for purposes comparable to those listed in the preceding guidelines. In particular, the enumeration of further legitimate purposes in Guidelines 3 and 4 is not intended to provide an exhaustive list of all legitimate quotation purposes. Guideline 5 thus safeguards the openness of the quotation right in the Information Society Directive with regard to legitimate purposes, in respect of which the use privilege can be invoked.
Categories of works: Guidelines 6 and 7
Article 5(3)(d) ISD generally allows quotations that "relate to a work or other subject-matter" in the sense of the Information Society Directive. Similarly, Article 10(1) BC generally allows quotations without confining the use privilege to certain kinds of literary or artistic works. This general scope of application with regard to all categories of literary and artistic works, and other protected subject matter, is confirmed in Guideline 6 .
In fact, it could pose particular difficulties in the digital environment to apply the right of quotation exclusively to specific categories of works or other subject matter. Attempts to confine the right of quotation to specific work categories already failed in the analogue past. In Germany, for instance, a former quotation rule concerning small takings from protected material could only be invoked with regard to literary works. Recognizing that this confinement to literary works was too narrow in the light of the need to further cultural creativity, the German Federal Court of Justice paved the way for its application by analogy to film works in a landmark ruling dating back to 1987.23 With the implementation of the Information Society Directive into German law, the quotation right has finally been broadened by the German law maker to cover all categories of works.24
In the digital environment, the confinement of the quotation right to specific work categories is likely to cause even bigger problems, in particular when it comes to quotations from multimedia creations. For this reason, it is also clarified in Guideline 7 that no difference shall be made between the categories of works or other subject matter in the application of the quotation right. In the case of a multimedia work, for instance, the quotation right should equally cover all different kinds of works or other subject matter involved. The quotation should not be restricted to specific rules applying to one specific category of work or other subject matter that forms part of the multimedia creation.
Extent of the taking: Guidelines 8 to 11
The fact that quotations are permissible for various purposes and with regard to all categories of works and other subject matter does not imply that any taking of protected material can be justified. By contrast, it must be ascertained in each individual case whether the extent of the taking can be justified in the light of the underlying purpose. This follows clearly from Article 10(1) BC and Article 5(3)(d) ISD. From the outset, however, it is to be noted that in some cases it may even be necessary to quote the entire work. This may particularly be required in the case of short literary works or pictures. An accurate reference may otherwise be impossible. As explained by von Lewinski and Walter in their leading commentary on European copyright law:
Making a "quotation" implies the requirement of using part of another person's work or even, where excerpting is not possible, an entire work (such as a photograph or short poem), for the purpose of illustrating or proving a proposition related to the quoted work;... 25
Against this background, it is pointed out in Guideline 8 that the right of quotation shall not be restricted to the taking of small or short portions. The crucial question, then, is how the permissible extent of the taking can be determined. Guideline 9 first recalls in this context the basic rule that the taking is only permissible to the extent justified by the purpose. On its merits, this test can be understood as a proportionality test. In order to be permissible, the taking from the original work or other subject matter must be limited to those parts required to achieve the objective underlying the quotation. There must be a reasonable proportion between the taking and the quotation purpose.
In principle, it would be desirable in this context to specify the extent of the taking that can be deemed permissible for different purposes. This specification of the permissible extent would enhance legal certainty. However, given the diversity of protected material from which quotations may be made, and the variety of purposes that may underlie a quotation, an appropriate indication of the permissible extent can hardly be given. It seems impossible to specify the permissible extent without considering the particular circumstances of each individual case.
In light of this dilemma, Guideline 9 seeks to offer some guidance by providing factors to be considered when determining the permissible extent of a taking case-by-case. These factors are modelled on the US fair use doctrine laid down in Section 107 of the US Copyright Act. The US fair use doctrine permits the unauthorized use of copyrighted material for purposes "such as criticism, comment, news reporting, teaching […], scholarship, or research."26 The factors set forth in Section 107 read as follows:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
In literature, it has been proposed to bring the system of limitations and exceptions in EU copyright law closer to flexible systems, such as the US fair use doctrine.27 With enhanced flexibility, EU copyright law would be rendered capable of keeping pace with the rapid development of digital technology. The courts would be given the opportunity to maintain a fair balance between the rights of the owners of copyright and related rights on the one hand, and competing user interests on the other hand.28 The consideration of US fair use factors in the context of the EU right of quotation can be seen as a first step in this direction.
Guideline 10 makes it clear that a quotation must not reach such an extent that it substitutes the original work or other subject matter. The inclusion of this rule reflects the prohibition of a conflict with a normal exploitation of the work or other subject matter that follows from the three-step tests in Article 13 TRIPS, Article 10(2) WCT and Article 5(5) ISD.29
Finally, Guideline 11 points out that a quotation must not be deemed impermissible because of its negative impact on the commercialization of the original work or other subject matter when this negative effect stems from the criticism expressed through the quotation. This rule is inspired by the ruling of the US Supreme Court in the case Campbell/Acuff-Rose where the Court recognized that a parody may harm the market for the original work. Nevertheless, the Court stated that "when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act".30 Article 5(3)(k) ISD sets forth a specific exception covering the use "for the purpose of caricature, parody or pastiche". Therefore, the rule derived from Campbell need not be applied to parody in the context of the right of quotation.31 However, the same rationale may also become relevant in other cases of criticism or review. A biting book review that contains several quotations, for instance, may kill the demand for the book. This harm, however, should not render the quotation impermissible.
Rights and remuneration: Guidelines 12 to 14
As elaborated above, the CJEU sees the right of quotation as a means of striking an appropriate balance between the protection of copyright and related rights on the one hand, and freedom of expression and information on the other hand. The right of quotation can only fulfil this function, however, when it permits not only the taking of protected material but also the further dissemination of the resulting creation that includes the quotation. The right of quotation, in other words, must constitute a general exemption from infringement that covers the right of reproduction and the right of communication to the public alike. This need is expressed in Guideline 12 . As Article 5(3)(d) ISD also covers both exclusive rights, this does not constitute a departure from the approach taken in the Information Society Directive.
It also follows from the strong freedom of speech underpinning that the making of quotations should not give rise to an obligation to pay equitable remuneration. In principle, such an obligation can arise in cases where a use privilege impacts on exclusive rights to such an extent that the legitimate interests of the rights holder are unreasonably prejudiced in the sense of the three-step tests set forth in Article 13 TRIPS, Article 10(2) WCT and Article 5(5) ISD.32 The right of quotation, however, is a means of reconciling the fundamental freedom of expression with the protection of copyright and related rights. The harm flowing to right holders, therefore, does not reach an unreasonable degree. By contrast, this harm must be accepted to strike the intended fair balance between the fundamental rights involved. In this vein, it is clarified in Guideline 13 that there should be no obligation to pay equitable remuneration for the making of quotations as such.
The absence of an obligation to pay equitable remuneration for the making of quotations, however, does not necessarily mean that the further commercialization of creations including quotations must always be exempted from an obligation to pay remuneration. For instance, it is conceivable that the quotation rule provides for remuneration to be paid by intermediaries that commercially benefit from user-generated content that includes substantial portions of quoted material.33 This possibility is pointed out in Guideline 14 .
Requirements: Guidelines 15 to 17
Guidelines 15 and 16 recall conditions for the invocation of the right of quotation that are set forth both in Article 10(1) BC and Article 5(3)(d) ISD: the quoted material must already have lawfully been made available to the public; unless this is impossible, the source of the quotation must be indicated. Guideline 17 reflects the decision of the CJEU in the case Eva Maria Painer/Standard VerlagsGmbH . The Court held that the right of quotation established a fair balance
by favouring the exercise of the users' right to freedom of expression over the interest of the author in being able to prevent the reproduction of extracts from his work which has already been lawfully made available to the public, whilst ensuring that the author has the right, in principle, to have his name indicated. From those two opposing points of view, the issue of whether the quotation is made as part of a work protected by copyright or, on the other hand, as part of a subject-matter not protected by copyright, is irrelevant. 34
Accordingly, the quotation right does not require the quoted material to be incorporated into a protected work or other subject matter. With this ruling, the CJEU rejected more restrictive national traditions requiring quotations to be included in a creation enjoying protection itself.
This work is licensed under a Attribution Share Alike Creative Commons license