Bernd Justin Jütte (University of Luxemboug): The EU’s Trouble with Mashups -‐ From Disabling to Enabling a Digital Art Form
New tools for editing of digital images, music and films have opened up new possibilities to enable wider circles of society to engage in ’artistic’ activities of different qualities. User generated content (UGC), a term that already transmits a notion of amateur artists, has produced a plethora of new forms of artistic expression. One type of UGC are mashups, which are compositions that combine existing works (often) protected by copyright, and transform them into new original creations.
The European legislative framework has not yet reacted to the copyright problems provoked by mashups. Whereas the flexible US fair use doctrine has ac-‐ commodated mashups rather easily, the strict corset of limitations and exceptions in Art 5 (2)-‐(3) of the InfoSoc Directive does not leave any, or only very little, room for this innovative and widely popular form of artistic expression for commercial or non-commercial purposes. The paper analyzes the current European legal framework and identifies its insufficiencies with regard to enabling a legal mashup culture. By comparison with the US approach, an attempt is made to suggest solutions for the European legislator, based on the policy proposals of the EU Commission’s “Digital Agenda” and more recent policy documents (e.g. “On Content in the Digital Market”, “Licenses for Europe”). In this context a dis-‐ tinction is made between non-‐commercial mashup artists and the emerging commercial mashup scene.
“Europe needs to push ahead with the creation, production and distribution (on all platforms) of digital content.” (source). Bernd starts us with some entertaining art examples of mashups, and then directs us to the Pop Danthology 2012 – Mashup of 50+ Pop Songs.
He notes that this video uses exclusively existing material, horizontal and vertical combination, more than one song, recognizable sources. The legal implications are of reproduction, making the material available, communicating to the public, and the musical composition and sound recording.
Mashups under US Law allows for a De Minimis defence (which is very limited) and a Fair Use defence. De minimis defence is often avoided – Bernd implies that it would open the flood gates so many courts do not touch it. The Fair Use defence is very flexible. It has four conditions – the purpose and character of use, the nature of the protected work, the amount and substantiality of parts used, and the potential market effect (the latter argument being that the new work destroys the market for the old one).
As regards the first category – purpose and character, we can ask ‘is the use transformative?’. Does it ‘[add] something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative’.’ (source). The other categories are dealt with more briefly, with a short commentary on the ways in market effect can be subcategorised.
He now focuses on the Fair Use Doctrine, and cites Lessig‘s 2008 work ‘Remix’, and moves onto a discussion of mashups under EU law. Can parody or caricature live without an element of originality?
Can mashups be enabled (though parody law) and can it be achieved throughout every EU state? Can commercial maships have compulsory licensive and a one-stop shop? [JB comment – this would be a powerful enabler, similar to the right to ‘first use’ currently available in various international legal frameworks, including US]. The question is of course where do we draw the line between commercial and non-commercial use.
- Licensing costs are prohibitive (of creativity)
- There is no obvious solution at EU level
- What of Moral rights?