The European Union (EU) desperately wants to be digital. To achieve this aim, the European Commission has launched the Digital Agenda [1] in 2011, which is one of the seven flagship initiatives on the Europe 2020 Agenda. [2] One part of 'becoming digital' is to incentivize and maintain social interaction on the Internet in order to enable online creativity. A form of creativity that has evolved with the advent of affordable digital editing techniques is the music mashup.
Mashups probably do not fall in the narrow and rather traditional conception of culture that the EU had in mind when it adopted its motto "Unity in Diversity". [3] Yet, mashups are undeniably an aspect of modern musical culture that Europe shares with other non-European nations and societies; and, therefore, they should deserve special attention. From a legal perspective, support must come through a framework that enables this art form instead of hindering new musical creations. In this context, enabling can only mean to give mashup creators legal certainty. Since the EU legislator has, for quite some time now, taken an interest in shaping copyright law, the EU law dimension is worthwhile exploring.
The paper focuses on music mashups under the EU legal regime for copyright. In the absence of much relevant literature on mashups, relevant US law will be discussed briefly to provide for some guidance to approach the subject matter from an EU copyright law perspective.
The scope of this research is limited to music mashups. While other forms of visual and mixed mashups exist, an authoritative definition of the term is missing. [4] Mashups based solely on musical works are a mass-phenomenon that fuels social networks, and video and music platforms. Quantitatively, they are by far the most commonly found typology of mashups; at the same time, they have created fundamental challenges for (digital) copyright law. [5]
Music mashups constitute a new art form that relies on combining music from different artists in new arrangements. These works appear differently, sound differently, and, when combined, may convey other messages than the original works. Music mashups are often supplemented by different forms of visual support, either by simple photos of the artists whose songs were used to create the musical digital collage or, more elaborately, by parts of the corresponding music videos. Depending on the proficiency of the mashup artist, their works – although it still needs to be discussed if mashups in general, or only certain mashups, constitute original works within the legal meaning of the term ‘work’ under European copyright law – differ in quality.
Mashups can be critical, provocative, ironic, or they can just reveal a new side of a given work. Be it as it may in every individual case, mashups as an art genre are immensely popular. The most viewed mashups on YouTube have gained more than 58 million views, [6] with other mashups still going into the millions. Mashup artists do not only publish their works online but also perform them live. One of the most known mashup artist, Gregg Gillis, who releases under the pseudonym Girl Talk on the label Illegal Art, does not only offer his songs for download for free [7] but also tours the world and performs his mashups live on stage.
On his label website the artist does not use the word 'mashup' but refers to "samples" and "pop collages". The term 'mashup', as it is used in this paper, refers to a work that combines elements of other pre-existing works to form something new. This means that mashups rely exclusively on multiple pre-existing works and do not contain any original material. [8] In particular, the author of the new work does not contribute any element of the new work. DJ Danger Mouse became famous when he created an entire album of mashups that exclusively consist of lyrics of the US rapper Jay-Z's "The Black Album" and the ninth Beatles album, which became known as "The White Album". He called his new production "The Grey Album". Gillis re-used elements of immensely popular musical works to create something that has been praised by music critics and is still circulated on the Internet today. [9] One might therefore rightfully argue that mashups are recycled [10] works with the advantage that the original works of art continue to exist and have not been destroyed in the process of creating a new work.
As a legal definition, the term ‘mashup’ does not exist. This paper concentrates on a narrow working definition of music mashups which, unlike many other works referred to as mashups, [11] combine pre-existing works by way of reproduction, one-to-one-copying, and must be distinguished from other creations that merely incorporate parts of works from other authors into original creations. Music mashups can be distinguished from remixes which mainly re-arrange existing individual songs and, possibly, add new material, as well as cover songs, which take existing musical compositions that are then re-recorded and, possibly, altered. [12] What mashups per definition do not include is any sort of original or new material, but mashups rely exclusively on existing sound recordings to create new works. The process of reproducing small or larger parts of existing recordings is, therefore, essential to the concept of music mashup. The samples as the constituting elements of mashups, or if one will their inspiration, are usually sufficiently long to make the listener recognize the original work. When combined with visual support by parts of corresponding music videos, this effect is further enhanced. There are, however, several subcategories within the broader category of music mashups, which do not exclusively use pre-existing material. [13]
Mashup artists use pre-existing recordings instead of performing songs themselves. They arrange these songs not only horizontally or subsequently but also vertically and simultaneously. Accordingly, mashups consist of more than one song, as opposed to classic remixes, and the number of songs in one mashup can exceed 30 individual works. Finally, it has been observed that most mashups contain at least one popular song; [14] the majority of mashups found on the Internet are composed from songs that have almost exclusively been released in the recent past.
To summarize, music mashups display a number of criteria that distinguish them from other musical works that quote or cite other sources. For the purposes of a working definition, mashups are constructed exclusively from existing recordings (1) which they combine not only horizontally but also vertically (2), it also implies that more than one song is used (3) and the parts of the songs used make the source easily recognizable (4).
Other combinations of works exist for which the term 'mashup' is used as a description of the process of their creation, during which elements of distinct works are mixed or mashed together – cut in parts and re-arranged – to form a new composition. [15] Non-music mashups, at least the majority thereof, can be distinguished from music mashups as defined above in that they do not copy pre-existing works or combine them vertically and horizontally. [16] Instead, they tend to combine patterns and motives from preexisting works of art and create entirely new works. These works, however, similar to music mashups, often want their sources to be recognized.
Graphic mashups are vertical by nature, most commonly known are collages. Modern poster art combines different sujets, such as the unique styles of painters Dali and Van Gogh with the Marvel character Wolverine. [17] Other mashups combine the work of Picasso, Vermeer and Lichtenstein into one unique piece of work, by cutting and pasting elements of three works combining it into one. [18] The Huffington Post reported [19] on an artist that mashed Andy Warhol's Campbell Soup with Star Wars characters. [20] All of those works are not mashups in the stricter sense of this paper, but it becomes clear that mashing and mixing is an art phenomenon that is popular and widespread, and that transcends different media. This phenomenon oscillates between amateur creations that are made 'just for the fun of it' and professional productions that are sold for economic profit.
The excitement that these ‘mashups’ create is founded in their appeal to popular culture. They re-contextualize and create often ironic or sarcastic connections between artistic topics, themes and genres. Mashups are more than remixing. The process of creating a mashup involves copyright as much as file-sharing does, but the intention is much different. Mashing has established itself as a veritable art form, not only in classical art and music, although one should be careful with the terminology, but in contemporary, digital and pop-music culture, as well.
Technological developments and digitization have revolutionized the way we consume and interact with music. Affordable computers and inexpensive digital editing tools enable almost everyone to create new audio and visual works by making use of existing content. [21] Classical Hip-Hop 'remix-mashups' are live performances that combine songs by way of playing two vinyl records simultaneously and often simply mixing tracks with a cross-fader. Ever increasing bandwidth has enabled ‘bedroom artists’ to share their creations with their friends and everyone who has access to the Internet via social networking sites and other content platforms. This creativity for 'the small man’ and the extent to which amateur users embraced the phenomenon created new legal problems, for which the existing copyright systems were not prepared.
If classical sampling techniques already created certain tensions, the new digital environment has increased the problem exponentially. The trouble with mashups as a mass phenomenon is that it exposes strong tensions between authors and commercial artists whose interest is to commercialize their works and the general public which enjoys consuming music and visual works, and possibly engages in the occasional amateur mashup. Another dimension of this tension is the conflict between current artists, whose songs are used in modern mashups, and future artists, who use pre-existing works to create new works. [22]
The term 'mashup' does not appear very often in European Union documents. In fact, the more recent communications from the European Commission mention 'mashup' only twice. And when the term indeed has found its way into the vocabulary of the Commission it only features in brackets as a part of enumerations of other types of digital content. [23] The term is always used in relation to the bigger category of user-generated content, of which it is a part. The Commission does not address the commercial nature of mashups as a separate art form, which can be, and certainly is, a subject of commercial exploitation.
Instead, the policy approach for mashups is globally dealt with under the category of user-generated content, to which the Commission counts other types of content, such as blogs, podcasts, posts, wikis, mash-ups, file and video sharing. This is not surprising because individual approaches to all types of user-generated content would overburden legislators and not necessarily provide for a flexible, future-proof legal framework. However, the EU has identified user-generated content as an important aspect of the digital age and the digital common market, which is worth increased, though not overwhelming, attention.
In point 2(ii) in its 2012 Communication on "Content in the Digital Single Market", [24] the European Commission calls for greater clarity on legitimate and illegitimate uses for end-users and easy access to simple licensing solutions to enable small-scale uses at affordable costs, or potentially for free. The Communication announced a structured stakeholder dialogue “Licenses for Europe”. The stakeholder dialogue was concluded with a conference on January 7, 2014, and produced a document titled “Ten Pledges to Bring More Content Online”. [25] The third of the Ten Pledges reads: “Easier licensing for music: commitments by the music sector”. As Working Group 2 of the stakeholder dialogue, which dealt exclusively with user-generated content, could not agree on substantial issues, the result is rather meager. [26] The music industry under Pledge Three commits to make information available on licensing agreements with online platforms and how this can work to benefit creative users. It further commits to identify existing practices for licensing for small-scale uses, in particular in relation to website background music and images and small-scale web/podcasting. [27]
A public consultation on the review of the EU copyright rules dedicates a set of questions to user-generated content. It acknowledges the problems that technological developments have created in relation to the re-use of creative content in the sense that the re-use of copyrighted material is "no longer the preserve of a technically and artistically adept elite". [28]
Already in 2011 the Commission had realized the importance of user-generated content for social networking and social media sites. [29] The Commission supports a two-track approach, encouraging responsible use, on the one side, and enabling users to "enjoy the full benefits of new interactive online services," on the other. For the latter, an easy-to-use and quick permission system is necessary. In particular, “amateur” uses of third-party protected content for non-commercial purposes should be enabled under a legal framework that builds “on the strength of copyright to act as a broker between rightsholders and users of content in a responsible way". This can only be understood as to mean that certain uses of copyright-protected works should automatically be free to use, either for free or via an automated licensing system which would gather minimal fees for non-commercial purposes. This, however, is not what the stakeholder dialogue mentioned above produced.
The EU's policy approach to user-generated content is a soft one. Although missing licensing solutions for user-generated content is recognized as a problem, the EU does not seem to push towards a big solution. One reason could be that policy makers are aware that another remodeling of the EU copyright rules, even if it is only to accommodate user-generated content amidst the existing limitations and exceptions of the Copyright Directive, would be a troublesome endeavor. Other fields of EU copyright law, for example collective rights management [30] and private copying levies, [31] receive significantly more attention by the legislator, as well as the judiciary.
The processes of creation and dissemination of mashups open up several legal dimensions at the same time. This is, indeed, true for other forms of digital content, particularly user-generated content. However, mashups are extreme in one particular sense: they do not contain any original elements added by the author; originality, if at all, can only be found in the arrangement of bits and pieces of pre-existing works. And, their immense popularity has taken them from a more private sphere into the public spotlight, where they are consumed in millions, by millions. Therefore, a number of exclusive rights are concerned and potentially infringed by creating mashups and making them available over the Internet.
From an EU law perspective, the pertinent rights are the right of reproduction, as provided for in Article 2 of the Copyright Directive and the right of communication to the public and the right of making available under Article 3 of the same Directive. While mashups infringe these rights, at least prima facie, and, at the same time, attract great public interest, they find themselves in the middle of the traditional balancing exercise that sits at the heart of copyright. Copyright provides protection to authors in order to give incentives to create new works. On the other hand, copyright permits reproductions in certain cases, “borrowing” as Eble put it, to promote creativity and advance the arts. [32] It is the vital role of limitations and exceptions to copyright to balance the interests of rightsholders and the general public. In relation to mashups, the general public enjoys new combinations of existing music that form new and often (more) exciting arrangements of already-beloved tunes. Mashup artists, in order to provide the general public with new popular works, must be able to rely on limitations and exceptions to escape liability for copyright infringement.
Very little literature on mashups as a separate field of study exists in Europe. [33] Therefore, it is instrumental to observe how mashups have been discussed under existing copyright laws in other jurisdictions. The US example lends itself because of its well-established copyright law. Any comparison between both legal systems should, however, be treated with caution due to the systematic differences between EU copyright law and US copyright law. Whereas the US system represents a comprehensive, national system of statutory and common law, the law applicable to copyright in the EU, by its very nature, does not constitute a system comparable to that of the US. EU copyright law is not, as a general rule, directly applicable to its subject, viz. the citizens of the EU Member States, but comes in forms of directives that harmonize certain aspects of copyright at EU level. Because of the legal nature of EU directives, these rules have to be implemented by national legislators who enjoy a certain margin of discretion in their transposition.
One crucial distinction that must be drawn is the one between commercial and non-commercial mashups. Especially with a view to enabling mashups by way of a favorable legal environment, each form requires different frameworks. Whereas mashups for non-commercial purposes, created by amateurs for the pure joy of engaging in artistic activities, require easy-to-use licensing mechanisms for no, or only marginal, fees, [34] commercial mashup-artists are more likely to afford licensing fees if they are economically successful. For both cases, however, facilitating multi-territorial licensing solutions are necessary.
On the one hand, US copyright law does not ab initio prohibit the creation and distribution, by any means, of mashups. On the other, it does not contain an exception to copyright or certain related rights that enables the creation and dissemination of mashup works. But, it offers an instrument, which, under certain circumstances, potentially permits the use of existing works to create a derivative work. [35]
Recent research has analyzed the fair use doctrine with a view to accommodating mashups under this general exception to copyright. The fair use exception provides sufficient room to accommodate mashups that meet certain criteria, however most mashups that are mainly created for entertainment purposes are most likely not jumping the four hurdles of the fair use defense. Another potential solution out of the dilemma is the de minimis defense. The latter is discussed only briefly, while fair use is analyzed in more detail.
The de minimis defense has been developed in the courts as part of judge-made law and only applies to the act of copying, whereas the statutory fair use defense applies to all exclusive rights under copyright. [36] However, the de minimis defense has often been invoked in relation to sampling. The defense permits the reproduction of small parts of a given work, [37] but no exact delineation exists as to how much exactly can be copied under the de minimis defense. This decision is left to the individual judge to make in every individual case. [38]
In several cases, US judges have come down on either side of the de minimis defense, which makes it difficult to predict with certainty what constitutes a de minimis use and what does not. In Newton v. Diamond, the 9th Circuit Court of Appeals ruled that the use of a three-note segment does constitute a de minimis use, [39] however, the US Court of Appeals for the 6th Circuit rejected the defense in Bridgeport v. Dimension for a four-note segment, because the segment constituted “the heart of the composition” [40]. In the same judgment, the court stated rather emphatically: “Get a license or do not sample” [41], but the judgment has been criticized for not taking into consideration a possible fair use defense. [42]
A further limitation of the defense is that it does not apply to sound recordings, which prevents the application of the doctrine to digital sampling, in general, and to mashups, in particular. [43] The doctrine only applies to musical compositions, [44] which would require the mashup artist to play the relevant notes himself and record the vocal track in addition. [45] This would make the ‘mashup’ fall out of the definition of ‘mashup’ for this paper and, moreover, probably result in a very displeasing experience for the listener, in most cases. However, as Lae noted, the strict interpretation of the US Copyright Code that per se prohibits sampling and mashing of original material under the de minimis doctrine is not followed by all US Courts. [46]
The fair use defense can save an author that has appropriated parts of the work of another author if the de minimis defense has failed. Under the defense, the appropriating author receives the fictitious implied consent to use the work in a reasonable and customary manner. [47] Codified in section 107 of the US Copyright Act, the defense required the consideration of inter alia ("shall include") (1) the purpose and character of the use, (2) the nature of the protected work, (3) the amount and substantiality of the part of the protected work that has been used and (4) the potential market effect. [48] These four factors, as the wording of the section suggests, are not cumulative, but have to be weighed against each other in a careful balancing exercise.
(a) Purpose and character of the use
The first element of the four-pronged fair use defense, as defined in section 107 of the Copyright Act, inquires into the purpose and character of the use, including its commercial or non-commercial nature. Accordingly, there are two aspects to be considered under the first point.
The first aspect asks, in essence, whether the use is transformative, which means whether the new work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." [49] The US Supreme Court has given this aspect the highest weight by stating that the higher the degree of transformation, the less important the other factors are. [50] It is not clear whether this relates to the two expressly stated factors under the first element of the defense or the entire set of elements. [51] At least within the first element the transformative nature of a secondary work, which is to say its purpose, should, indeed, be weighed more than the other factors. A multitude of arguments is brought forward in the literature to discuss whether music mashups or other types of mashups are, in fact, transformative when compared to the original works. One line of arguments that would, if at all, consider mashups to be transformative argues that mashups are only meant to entertain and offer little in the sense of critique, parody or commentary. [52] At least for parody, the Supreme Court grants a carte blanche under the fair use defense. [53] A ‘parody’ under this definition requires that the work that parodies directs its criticism at the work that is used for criticism. The latter work is used particularly because it is the object of parody and the reproduced part, the part that conjures up the memory of the work, is the "heart [of the work] at which the parody takes aim." [54] It is the distinguishing characteristic of mashups that they do not add anything original but exclusively rely on existing works. In this respect, it makes them vulnerable. Every argumentative construction that could bring mashups under a transformative defense by arguing that mashups are a general critique of mainstream music or in certain cases of the particular artist must rely on original elements. Without external comment, which means any original contribution, although the author of the mashup might have intended to criticize or parody an author or a certain work, this intention might not become apparent, and the fair use defense would fail. [55] In Campbell v. Acuff-Rose Music, the defendants prevailed because they used a sample of the original song's music track and further altered the lyrics, keeping significant parts of the overall arrangement intact. The court granted protection under the fair use defense arguing that the defendant's use of the original was transformative because it criticized the naive connection the original author made between romance and prostitution. [56] There is another line of reasoning that supports the transformative nature of mashups. It is argued that by combining different songs all songs are transformed simultaneously [57] and that mashups could be able to claim protection equal to that of parodies. [58] Eble suggests that mashups could be protected as parodies or “quasi parodies”, [59] or, even further, that the non-exhaustive list of section 107 USC could still embrace mashups as transformative [60] because they add a new purpose and create new expressions. [61]
Outside the parody defense, non-musical works have been found transformative although they did not criticize the original works when they used the original work as "raw material" to pursue "distinct creative or communicative objectives". [62] In this case, the artist Jeff Koons had reproduced a pair of legs from a picture of professional photographer Andrea Blanch. The photograph with the legs had been published in a beauty magazine and Koons used the reproduction in an altered form in a painting that also contained other reproduced elements. Koons did not criticize the work of Blanche but used parts of her photographic work "as fodder for his commentary on the social and aesthetic consequences of mass media" to create "new information, new aesthetics, new insights and understandings." [63] Instead of characterizing the work of Koons as a parody, the court employed the concept of satire but found, nevertheless, that the artist had a good justification for choosing to reproduce the particular part of Blanche's photograph. [64] The same court had taken a different view some 14 years earlier, and two years before Campbell v. Acuff-Rose Music arguing that in a similar work by Koons the artist could not rely on the parody defense and did not further extend fair use to other transformative works. [65]
Applying Campbell v. Acuff-Rose Music without reservations to non-parody cases would be daring and would be a gamble, considering the jurisprudence on music samples. The second Koons case suggests that transformative works should, probably under stricter conditions, be able to borrow from pre-existing material. However, Blanch v. Koons could be distinguished in relation to mashups: Koons intention was not to use that particular pair of legs he ultimately integrated into his work, but the legs were used as a symbol for materialism, consumerism and a critique of mass media. Any pair of beautiful, long female legs would have sufficed. For mashups, not any song, or part of a song will do, but it must be a particular, recognizable song. A US court could make a distinction here for two good reasons. First, a mashup remains a musical work, whereas in Blanch v. Koons a part of a photograph was integrated into a collage-style painting. And, second, Koons’ painting is very much unlikely to compete on the same market as the original photograph by Blanch, whereas, it could be argued, mashups could, under the fourth fair use criterion, compete with the original work.
The second aspect seeks to inquire whether or not the use of a new work has a commercial character. In favor of this criterion, it is argued that mashups are usually offered for free and that artists do not make any direct profit from mashups. [66] But, this defense would not hold up for artists that do, indeed, make direct profit from mashups by performing them live or selling mashup albums online. However, in Campbell v. Acuff-Rose Music the Supreme Court affirmed the commercial nature of the defendant's use of the original work but argued that the commercial nature of a use is not necessarily determinative to establish fair use. [67] Therefore, only mashups that do not create direct or indirect commercial benefits for the author are likely to profit from the fair use defense. But, not all is lost if authors do derive some benefit as the commercial nature of the use is only one part of the bigger balancing exercise.
(b) Nature of the copyrighted work
The nature of the copyrighted work is the object of scrutiny under the second element of the defense. It essentially assesses how much protection the original work deserves by distinguishing between works of fact and fiction. Works of fiction and expressive arts, such as musical compositions and their recording, receive higher protection under this element than news reports or newspaper articles. Because music mashups primarily use creative works, [68] most authors agree that this factor would slightly disfavor the finding of a fair use defense. [69]
(c) Amount and substantiality of the portion used
Under the third element, the question is, ‘how much of the original work did the appropriating author used for his new piece?’ The opinions differ in the literature, [70] but most commentators agree that different types of mashups must be distinguished. The purpose of a mashup is to build on existing musical works and make the listener recognize individual songs. Therefore, the use of a certain amount of the work is necessary to 'conjure up' the particular song in the memory of the listener. The 'conjure up' test originates from a parody case, [71] and parodies enjoy greater leeway in reproducing larger parts of original works to the extent necessary to recall the work that is subject to parody. [72] Mashups that use only a limited number of songs and therefore have to use more extensive parts, an extreme case are A vs. B mashups, [73] will find themselves at the other end of the spectrum. Somewhere in-between there are mashups that use a multitude of songs from which they only extract shorter snippets, but even the latter use substantial parts of songs because mashups artists want to make their listeners recognize the song they mash and typically select those parts that make the song unique and identifiable. [74]
(d) Potential market effect
The final element contained in section 107 USC asks a court to determine whether the newly created work harms the market for the original work. The landmark case in this regard is Harper v. Nation
[75] in which the publication of significant passages of an unpublished book harmed the market of the book, itself; a fair use defense was not granted. The question for mashups is, therefore, whether or not mashups harm the market for original works or other rights that the author of the original work might possess. One market that should be considered is the market for other derivative works. [76] But, the more transformative a work is, the less likely it is to create competition on the primary and even on most derivative markets. The effect on derivative market is sometimes considered detrimental for rightsholders [77] because it infringes the exclusive right under section 106 USC. [78]
(e) Good faith as fifth element?
Some authors add a good faith criterion either under the first element as an extension of the non-exhaustive list of criteria thereunder, [79] or as a "lurking fifth factor" as an extension of the non-exhaustive enumeration under section 107 USC. [80] Most commentary focuses on the situation in which artists – again, the relevant case law only refers to sampled music and parodies – [81] tried to acquire a license but the request was refused by the rightsholder. [82] After having been refused the grant of a license, the sampling artists then used the samples nevertheless. Good faith in these cases lies in the fact that sampling artists at least attempted to obtain a license for their transformative uses of samples.
(f) Is it, or is it not (fair use)?
The beauty of its flexibility is fair use's conundrum, and academic commentary is divided. [83] Whereas some favor the protection of mashups under fair use, [84] some strongly oppose. [85] And, in any case, it is not certain that the case law in relation to sampling will apply to mashups without reservation. In particular, the fact that songs containing samples as well as original elements are more likely to be considered transformative, or even to be considered parody, could tilt the balance against mashups that are missing any obvious creative elements, in the sense of original contributions from the author.
Lae suggests treating different types of mashups differently. She believes that "collage-style mashups" that only incorporate small parts of other songs, but a great number thereof, should benefit from the fair use defense because they are transforming the original works sufficiently, almost making the originals unrecognizable. Creators of A v. B mashups should be required to obtain a license, and only if the request for a license is rejected should they be allowed to profit from the fair use defense. Mashups with the purpose to criticize or parody should always benefit from protection under the fair use defense. [86]
Mazzone is more pessimistic, fearing that licensing may win the battle over copyright. [87] He stresses that fair use is the justification for exclusive rights with long protection term and an overly strict stance against admitting fair use would give rightsholders the ability to stifle creativity and, in the long run, endanger free speech. Interestingly, the number of lawsuits against creative samplers increased with the availability of cheap sampling technology, which then, in turn, made the position of rightsholders stronger. At the peak of its creative potential, sampling and mashing are put into a legal straightjacket. [88]
Under US copyright law the legality of mashups is not entirely clear, but jurisprudence has given some orientation. Under the fair use doctrine, a mashup artist who uses only small parts of a certain song (that has already been released) and distributes an immensely creative and possibly parodying mashup for free over the Internet and does, in addition, not derive any secondary commercial benefit, might be able to dodge infringement claims (and yet might sit on top of huge legal bills). In the absence of relevant case law, all that artists can do is wait until somebody sues them.
Therefore, neither fair use nor de minimis offer reliable and satisfactory solutions and a significant degree of legal uncertainty remains. [89] Fair use or de minimis, and this is the crux of most exceptions to copyright, were not written for sampling, remixing or mashing; in short, for most forms of expression enabled by modern digital reproduction techniques. [90]
EU Law does not exist in a legal vacuum but by virtue of national law, and national law is, in many areas, heavily influenced by EU law. This is particularly true for copyright, which is a field of law that is not entirely subjected to the control of the European legislator, though it has experienced significant legislative interventions. But, important aspects of copyright remain within the competence of the Member States – most importantly, moral rights.
The history of EU copyright begins with the conflict between the free movement of goods provisions of the Treaties and the exclusive and territorial nature of copyright (and other intellectual property rights). In a number of decisions, the Court of Justice of the European Union (CJEU) has confirmed the existence of (now) 28 different copyright titles in the EU, however it has limited the exercise of national copyrights by rightsholders to safeguard the free movement of goods and services. [91]
Following the jurisprudence of the CJEU and its influence on intellectual property rights, the EU has begun harmonizing certain aspects of intellectual property law. For copyright, this meant fragmented, vertical harmonization directives from the beginning until in 2001, when the Information Society Directive (or Copyright Directive) was passed, which harmonized certain aspects of copyright. [92]
The Directive provides for the right to basic reproduction, [93] the right of communication to the public, [94] the right to make available to the public, [95] and the right to distribute. [96] The four rights guaranteed by the Copyright Directive are the rights relevant when mashups are created and published on the Internet. The usual evolution of a mashup looks like this: first, the mashup artists identify the songs they want to combine to create a new song; from these songs they isolate by way of reproduction the vocal and instrumental parts they wish to be the parts of the mashup and arrange them. Then, the fresh mashup is uploaded to either a streaming website, maybe even a private online radio station, shared via peer-to-peer services, or uploaded to other sites that enable the download of the mashup. These actions that enable Internet users to access the mashup concern rights of communication to the public and making available. Without limitations and exceptions to copyright, which either exclude certain acts from copyright protection or permit certain prima facie violations of copyright for reasons of public policy, mashup artists would commit multiple copyright and related rights infringements each time they create and publish their works. This is because hardly any amateur mashup artist can afford to pay licensing fees, which is why artists often refrain from obtaining licenses for all works they use to create mashups.
The Copyright Directive harmonizes substantive copyright in the EU horizontally. The Directive is of particular importance for mashups because it defines the reproduction right, which grants certain categories of rightsholders "the exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part". [97] The reproduction right is enjoyed by authors as copyright proper but also by performers for their performances, phonogram producers for their phonograms and other classes of rightsholders of related rights. [98] Article 3 introduced the communication to the public right and the making available right. Under the former, the author of a work enjoys the exclusive right to communicate his work to the public "by wire or wireless means"; the latter grants authors the exclusive rights to make their works available so "that members of the public may access them from a place and at a time individually chosen by them". Both rights are to be understood to cover any transmission of their works communicated to an audience that is not present at the place where the communication takes place. [99] The making available right is further extended by virtue of Article 3(2) to other rightsholders, such as phonogram producers and broadcasting organizations for their respective works. Article 4 further provides for a distribution right, which is, however, not very important for mashups because the right only applies to the distribution of physical objects that embody copyrighted works. [100] Mashups are, in the overwhelming number of cases, distributed digitally, not on physical media.
EU law provides for exceptions to the exclusive rights granted to rightsholders. Limitations and exceptions to exclusive rights serve the purpose to strike a balance between the interests of the rightsholder to protect his intellectual creations, and the interest of the public to have access to these works. Historically, this balance between a high degree of protection and certain exceptions should promote creativity, and, since recently, the protection afforded to copyrighted works should result in creating economic growth, employment and investment. [101] The majority of these exceptions are contained in Article 5 of the Copyright Directive.
(a) Exhaustive list of limitations and exceptions
Directive 2001/29/EC was passed in 2001 to implement, in part, the WIPO Internet Treaties. The EU legislator was faced with the situation that the 15 Member States at that time all had existing systems for copyright limitations and exceptions, which differed significantly. Minimum harmonization had already taken place to specific limitations and exceptions provided by vertical harmonization directives. However, the bigger part of copyright still remained unharmonized and international treaties had not approximated this culturally very sensitive area of copyright law. [102]
Negotiating a set of binding exceptions for all Member States was, therefore, almost impossible. The solution adopted by the EU was to find a compromise that would leave all Members States content. The compromise that was found reflects this struggle for an acceptable solution.
Article 5 of the Copyright Directive sets up a very diverse landscape of exceptions to the exclusive rights defined in Article 2 and 3. It provides for only one mandatory exception, which has to be implemented in every Member State. Paragraph 1 exempts temporary reproductions from the exclusive reproduction right, as defined in Article 2. This very limited exception for reproductions that are “transient and incidental” is generally assumed to apply to cases of caching and browsing. [103] The reproductions referred to are those without which digital communication, and even the most simple and essential computer processes, could not work without constantly violating copyright rules.
A set of five optional limitations to the reproduction right contained in Article 5(2) includes limitations for non-commercial private uses (b) and for ephemeral recordings by broadcasting organizations (d). Article 5(3) gives a longer list of optional limitations that Member Stares can implement with respect to the reproduction, the communication, and the making available to the public right. However, these limitations include only two exceptions that could be interesting in relation to mashups, which are the exceptions "for purposes such as criticism or review" [104] (d) and "for the purpose of caricature, parody or pastiche" (k). Both are exceptions that would, in comparable situations, most likely fall under the US fair use defense.
National legislators are limited by the exhaustive list of exceptions in Article 5 but may maintain some limitations that already existed before the Copyright Directive entered into force. [105] It is particularly prohibited to introduce new limitations and exceptions that are not expressly included in the exhaustive lists of limitations and exceptions to the reproduction, communication to the public, and making available rights under Article 5 of the Copyright Directive. [106] Therefore, there is only little leeway to extend limitations and exceptions to copyright beyond the EU copyright regime. [107] However, some scholars have argued that further limitations could be introduced by an extensive interpretation of the three-step test of Article 5(5). [108] The three-step test would grant national legislators the competence to introduce exceptions that are inconformity with the test beyond the exhaustive list of Article 5(1-4).
Case law on the interpretation of Art 5 is still rather limited, in so far as Art 5(1) has received the biggest share of attention by the CJEU. [109] A number of exceptions and limitations under Article 5(2) and (3) have been discussed in proceedings in front of the CJEU. Of particular interest for mashups is the exception for parody, caricature and pastiche in Article 5(3)(k), not least because this exception comes closest to the safe parody defense under the US fair use doctrine.
Only in April 2013 was a case was referred to the CJEU by a Belgian court asking for interpretation on the nature and the content of one of the more relevant exceptions for mashups. In Case C-201/13 Deckmyn v. Vandersteen, the Court was asked to decide if the concept of parody in Article 5(3)(k) of Directive 2001/29/EC is an independent concept under EU law and, if so, what criteria must be fulfilled by a work in order to fall under this exception. The referring court suggested four distinct criteria, and asked the Court, in addition, whether further conditions must be fulfilled. The criteria suggested were (1) whether the new work must "display an original character of its own" to such an extent (2) "that the parody cannot be reasonably ascribed to the author of the original work", whether (3) the new work must "be designed to provoke humor or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else" and whether (4) the new work must mention the parodied work. The outcome of this case was eagerly anticipated. After the Advocate General had delivered his Opinion on May 22, 2014, almost two months later than originally announced, the Court rendered its judgment on September 3, 2014.
(b) Strict and uniform interpretation of limitations and exceptions
The exceptions of Article 5 of Directive 2001/29/EC, as repeatedly confirmed by the CJEU, must be interpreted narrowly as derogations from the exclusive rights granted under the directives. [110] This goes against a more popular view in the literature that these exceptions are primarily a tool to strike the balance between the interests of the public and the interests of rightsholders. [111] More recently the CJEU has interpreted limitations and exceptions to enable their effectiveness.
[112]
Under the corresponding international framework, it is agreed that limitations should prevent the commercial exploitation against the will of the rightsholder and should be construed narrowly as exceptions to the exclusive rights. [113]
After the Infopaq I case, it is clear now that the exceptions to the exclusive rights of the Copyright Directive must be interpreted narrowly, [114] but this does not automatically mean that limitations have an independent meaning under EU law. However, it would make the situation even worse from a common market perspective if exceptions and limitations had different scopes in all 28 Members States, and if these concepts, in addition, would be construed narrowly. This would safeguard Member States’ autonomy and sovereignty for the cost of legal uncertainty and high transaction costs. Therefore, exceptions and limitations should have a uniform meaning in all EU Member States, even if some of those notions, particularly the notion of parody, might be appreciated differently in different Member States with diverse traditions of freedom of speech. In Padawan, the CJEU ruled that the concept of 'fair compensation' under Article 5(2)(b) of the Copyright Directive is an autonomous concept of EU Law. [115] This argument is supported by recital 32 of the Copyright Directive, which states that while the "list [of limitations and exceptions in Article 5 of the Copyright Directive] takes due account of the different legal traditions in Member States [...] Member States should arrive at a coherent application of these exceptions and limitations". This wording, together with the ruling in Padawan, leaves little room to argue that Article 5(3)(k) should not have a uniform meaning if Article 5(2)(b) does. The only reason imaginable is that the notion of parody is more culturally loaded than the rather technical notion of 'fair compensation'. But, on the other side, especially when parodies are made available online, artists would want to be sure that they can rely on a harmonious concept of parody throughout the EU. In his opinion, AG Cruz Villalón likewise suggested that the Court should answer the question whether parody is an autonomous concept under EU law in the affirmative, [116] adding, however, that, in that autonomous and uniform interpretation, Member States, in the absence of a definition in the Directive, still have a wide margin of discretion to have regard for their national cultural peculiarities. [117] The CJEU largely followed the Opinion of the AG, confirming that the concept of parody has an autonomous meaning once implemented by a Member State. This autonomous interpretation, the judgment seems to imply, leaves little room for national peculiarities as this “would be incompatible with the objective of [the Copyright Directive]”. [118]
It is only one of many exceptions, but likely the most important when it comes to bringing mashups under the umbrella of Article 5 of the Copyright Directive. If a parody under Article 5(3)(k) were to allow artists a certain degree of freedom regarding the target of their criticism or mockery, at least some mashups would be granted protection under this exception. In the US, the concept is still very restricted, but it might relax in the near future. After the CJEU’s judgment in Deckmyn, the concept of parody in the EU has taken shape.
In his opinion, AG Cruz Villalón first recalled that exceptions to the general rule that rightsholders must consent to reproductions of their works must be construed narrowly [119], and that, in interpreting the exceptions, regard must be given to the special characteristics of each exception, for which a wide margin of discretion exists. [120] Contrary to the position of the Commission, which suggested that the concept of parody should be defined in strict delineation to the other two categories – pastiches and caricatures, the AG argued that all of those categories have the same purpose, which is to derogate from an exclusive right. [121] In fact, some pastiches can be caricatures or parodies; in many cases, these categories can overlap. Therefore, an interpretation that would isolate each category would be rather artificial.
From a literal analysis of the respective terms in different languages, AG Cruz Villalón went on to identify common characteristics of a parody that seem to be common to most jurisdictions. In attempting to define the concept of parody, Cruz Villalón distinguished between structural characteristics and the functional dimension of a parody. The Court, itself, did not follow this categorization to determine the constituent elements of parody, but the distinction provides a nice framework for analysis.
(a) Structural characteristics
The AG argued that parodies are always both, a copy and a new creation. [122] A parody relies on an element of recognition, which is not incidental but essential and indispensable for the new creation. [123] By borrowing large or small parts from existing works and, at the same time, creating a new meaning, parodies are always ambivalent, drawn between the original and its transformation. Although parodies borrow significant parts from other works, it is always that new element that distinguishes them from the original, and that makes the creator of the parody desire recognition. It is especially the creator of the parody’s intention not to be confused with the author of the original work that is the basis of a parody. The creative element is a product of the genius of the author of a parody. [124] This argumentation could imply that a parody must be original, or is by definition original, although the majority of the work is copied.
[125]
Indeed, a parody should be original because it must be the author’s own intellectual creation, by addition or distortion, that adds the mocking element; this originality can be achieved by minor alteration or transformations, which distinguish parodies from (unintentional) bad copies.
The referring court had suggested a number of elements that could constitute the elements of a uniform interpretation under EU law. The AG, however, suggested that the optional character of the exception would not support such a strict corset of criteria and only the core characteristics mentioned would be indispensable. [126] This does not mean that there can be no other elements, but it would be for the national courts, taking advantage of their wide margin of discretion, to decide in each case whether a certain creation constitutes a parody. [127]
The Court limited the position of the AG, applying a literal interpretation of the term parody. There are only two criteria that are relevant and that a parody must display: a parody must (a) “evoke an existing work while being noticeably different from it”, and (b) it must constitute “an expression of humor or mockery.” [128] For the sake of effectiveness and in the absence of any other indication in the Directive, the Court refused any and all of the suggested additional criteria the referring court had enumerated. [129] The judgment seems to suggest that parodies must not display an original character that goes beyond humor or mockery.
(b) The functional dimension
In what the AG called the “functional dimension”, Cruz Villalón distinguished between the object of the parody, its intention and effect, and its content. The referring court had asked whether it is necessary that a parody directs its mockery at the original work, or whether the original work can be used to criticize, mock, or humor another subject. The AG saw a wider definition of parody, which includes, on the one side, 'traditional' parodies that refer back to the original work ('parody of'). [130] On the other side, he argues that a type of parody that employs an original work to comment on another subject ('parody with the help of') is sufficiently established in our modern communication culture, and that the scope of the parody exception cannot be limited to 'parodies of'. [131]
A second functional dimension is opened by the effects of parody. AG Cruz Villalón stressed that the effects of parody are a necessary consequence of the transformation. Again, arguing with a literal interpretation, he acknowledged that critical, humorous, or mocking remarks – and this is the essential quality of parody – can transport serious and tragic-comedic notions. [132] He settled on the term ‘mockery’ (“Verspottung’ or “burlesque”) as a description of the effects of a parody and suggests granting Member States a wide margin of discretion. [133]
Finally, he engaged in an analysis of the relation between parody and freedom of expression. Based on the facts of the proceedings that resulted in this preliminary reference, the AG discussed whether or not a rightsholder could object to a parody defense if the message transported through the parody runs fundamentally against his own convictions. Cruz Villalón suggested, because the freedom of expression occupies an outstanding position in a democratic society, [134] that a rightsholder cannot, as a general rule, object to a parody based on his work only because he does not share the opinions expressed through the parody, even if these opinions are opposed by a large number of the population. [135] However, in cases in which the expressed opinion is fundamentally opposed to the core values of the (European) society, rightsholders can invoke their rights against such an adaption, which would not be considered to be a parody in such a case. [136] Whether or not this is the case, AG Cruz Villalón suggested leaving it to the referring court to decide in this particular case. [137]
Again, the Court was much more brief regarding what it called the ‘objective’ of a parody. It acknowledged, basing it on the argumentation in recital 31 and Articles 2 and 3 of the Copyright Directive, the necessity to strike a balance between rightsholders and users of protected subject matter. [138] This balance must be considered when applying the parody exception in every particular case. On the one side of the scale, the Court puts the interests of “persons referred to in Articles 2 and 3” of the Copyright Directive, and, on the other side, the right to freedom of expression of users of protected works. [139] In a case such as the one in front of the referring court, where a discriminatory message is transported through the parody, the Court ruled that rightsholders “have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with such a message.” [140]
The Court limited the scope of the parody, which the AG had opened significantly, leaving national courts little room for interpretation. However, the standard it sets for striking the balance between the interests of rightsholders and users of protected works tilts more in favor of rightsholders. Whereas the AG had seen the limitation in cases in which the message of the parody is fundamentally opposed to the core values of society, the Courts finds it sufficient if the rightsholders have an interest to be disassociated with the work.
An interest to be disassociated with the work must, however, remain an objective standard in the interest of foreseeability and legal certainty. Of course, no author is very interested in being mocked, besides those with a good sense of humor. But, authors should accept that their works are decontextualized and transformed to transport critical messages. This means that mashups do have a chance if they can establish that they mock, even if their target is not the reproduced work, itself, but something or someone else.
In the absence of an explicit exception for mashups or sample-based music in Article 5 of the Copyright Directive, or a clear indication that the three-step test can be extended beyond the exhaustive list of exceptions and limitations, [141] it seems that EU copyright law neither provides room for legal mashups without paying licensing fees, nor are Member States in a position to enable mashups in their respective jurisdictions independent of EU law. [142]
First, national legislators are bound by EU law, and a narrow construction of limitations and exceptions under EU law automatically restricts their scope under national law. [143] Recital 32 of Directive 2001/29 states explicitly that Article 5 "provides for an exhaustive enumeration of exceptions and limitations to the reproduction right and the right of communication to the public". [144] The introduction of additional limitations or exceptions into national law, which would go beyond the catalogue of exceptions in the Directive that constitutes the maximum ceiling of permitted derogations, [145] would bring a Member State in violation of EU law. In addition to this condition, Member States cannot stretch the scope of Art 5 but may only adopt limitations and exceptions that are exactly within the scope or stricter than the limitations enumerated in Article 5 of the Copyright Directive. [146]
Second, national initiatives within the framework of Article 5 of the Copyright Directive can improve the current situation only minimally. Given the normal ways of distribution of mashups over the Internet, which makes the works instantaneously available in all Member States, authors would want to be able to rely on the same exceptions and limitations in all Member State to avoid infringing acts. Without this legal certainty that enables the creation and dissemination of mashups, creativity could be significantly stifled.
Third, the provisions of Article 5 provide anything but legal certainty, not only for mashup artists. The system of limitations and exceptions is already complicated, with some exceptions – potentially, after implementation – applying to the reproduction right, and also to the rights of communication to the public and making available, and to different classes of rightsholders. Further, the "extra legislative layer" [147] that stems from the requirement of legal interpretation of the rules of limitations and exceptions complicates the matter and makes the application of limitations and exceptions more uncertain than necessary. As in the case for parody in the Deckmyn case, even after the judgment of the Court, many of the concepts that Article 5 of the Copyright Directive relies on are unclear and will only be clarified when a case is brought in front of the CJEU for interpretation. [148]
In general, the harmonizing effect, which is necessary in a borderless information society more than ever, has been strongly criticized. Hugenholtz states that the "actual harmonizing effect must seriously be called into doubt" [149] due to the ability for Member States to "pick and mix" from a "shopping list" of broadly-phrased, wide categories of limitations and exceptions. [150] Janssens described the results of copyright harmonization under the Copyright Directive as "disappointing", regarding limitations and exceptions. [151] More drastic are Geiger and Schönherr; in their opinion, "harmonization in the field of limitations and exceptions has been a failure". [152] The current situation has created a lack of coherence among a very limited number of limitations and exceptions.
Finally, the limitations and exceptions under Article 5 of the EU Copyright Directive do not reflect an understanding of copyright as a mediator between rightsholders and third parties but one that gives primacy, as a principle, to rightsholders of exclusive rights and their economic interests. [153] What the current legal framework is missing is weight on the other side of the scale – support for developing and maintaining creativity. Especially for user-generated content, this means that there is little content available for re-use, which significantly hampers creativity based on pre-existing material. With little exceptions for user-generated content, which are, further, very much unclear, and the long duration of copyright and related rights, [154] mashup artists have very little material at their disposal to work with legally.
The European Union does not provide for a legal environment that enables individuals to create mashups. [155] The exceptions of the Copyright Directive fail to provide room for transformative uses outside the narrow corset of the concept of parody. Authors of mashups are, therefore, required to ask rightsholders for permission to use musical compositions and sound recordings. But, with mashups mainly published digitally on the Internet, the rights clearing process is burdensome, cost-intensive and, considering the little economic significance of most mashups, often impossible. For example, the German GEMA, the collecting society for reproduction and performance rights, offers simple-to-use licenses for certain uses. However, such licenses are only available as repertoire licenses for web-radios, podcasts, and for certain uses of members of the collecting society. [156] Other quick licenses are not available through GEMA's website. Neither do the relevant French collecting societies [157] provide for such licenses nor the PPL and PRS in the United Kingdom. The UK Copyright Hub, [158] which was established following the 2011 Hargreaves review, currently only provides for information on who to contact to acquire licenses for different uses. Concrete advice is still missing on how to obtain licenses for non-commercial, small-scale uses.
With the current system of collective rights management, mashups continue to suffer from the flaw of legal uncertainty. The new Collective Rights Management Directive [159] that was passed in late February 2014 does not help to illuminate the legal grey area. Although it provides for the possibility to grant multi-territorial licenses, it does not explicitly refer to licenses for small-scale uses. This step must be taken by collecting societies, themselves, in offering one-stop shop licensing mechanisms for amateur users against small fees. Currently, it seems unrealistic that this option will be available in the near future.
But, even if mashup artists, in the absence of practical licensing services by collecting societies, were to approach every rightsholder in every relevant country individually, it is hard to imagine that all their inquiries would be answered, and, in many cases, an answer would probably not be positive or unconditional. Not every author or record company is happy to see their songs mutilated on the Internet, be that mutilation for commercial or non-commercial purposes, which is to say that the commercial nature of a use is not necessarily the biggest problem for authors, but rather the fact that their works are significantly altered. And, casting aside any moral rights considerations, most artists and record companies will not agree to waive their remuneration rights for mashups that are or can be commercialized, although some musicians have encouraged the use of their songs for mashups.
In order to enable a vivid mashup culture that provides amateur artists the opportunity to express themselves and that makes the commercial exploitation of professional mashups with worldwide dissemination possible, a parallel system built on limitations and exceptions for non-commercial mashups and compulsory licensing for commercial mashups could be one imaginable solution. Realistically, a system just for mashups cannot be expected, but an approach with a wider scope, including all sorts of user-generated content, could help to boost creativity as imagined by the European Commission.
A strong case should be made for the free use of copyrighted material for amateur creativity. [160] Considering the relative economic insignificance of amateur mashups, a solution that would enable user-generated content to rely on exceptions that cover copyright and all relevant related rights would seem appropriate. A special exception could be inserted for transformative uses that are not commercially exploited. Such an exception is included in the “European Copyright Code”, which has been drafted by a number of distinguished copyright scholars. [161] The interests of users could be safeguarded by balancing rightsholder interests against the right to freedom of expression, as the Court in Deckmyn has demonstrated. More guidance on the interest to be disassociated with another work would, however, be necessary. Because mashups are an international phenomenon, this exception, ideally, would be mandatory and therefore available to mashup artists throughout the entire EU. With such a solution, legal certainty would be provided, and creativity encouraged. [162]
Opening one particular exception would surely provoke demands from other interest groups to introduce further exceptions with a rather narrow scope, and this is, therefore, very unlikely to happen in the near future. It has been suggested to give Member States the possibility to introduce further limitations and exceptions by deleting recital 32 of the Copyright Directive. [163] But, this would again result in a fragmented patchwork of limitations and exceptions in the EU to the detriment of legal certainty, which is so direly needed in an online environment that affects copyright and related rights in all 28 Member States. Therefore, a flexible exception that can accommodate uses that have not been foreseen in an enumerative list should be introduced to function as a ‘catch-all’ exception. Such an exception would not question the legitimacy of the other exceptions contained in Article 5 of the Copyright Directive and would be less likely to provoke demands by other stakeholders. It could take the form as suggested by the Wittem Group or even draw inspiration from the three-step test. What is more important is that it should function to react efficiently to developments that collide with the inflexible framework of limitations and exceptions under the Copyright Directive.
Mashup artists, who use pre-existing works to compose mashups and earn money with their compositions, either by selling them online or by performing their mashups in front of audiences, should indeed be required to obtain licenses for all songs they integrate. The process of obtaining licenses can, as described above, be burdensome and, potentially, prohibitively expensive, especially if artists or phonogram producers refuse to grant licenses. In the interest of promoting creativity and creating an environment that encourages and enables artists to rely on pre-existing works for their artistic output, there could be a 'right' to use works of other artists against remuneration, albeit within certain limits.
A solution to enable mashups and to compensate rightsholders at the same time could be a system of compulsory licensing, which would make it easier to obtain licenses and provide mashup artists with legal certainty as to the legality of their activities. [164] Such a system would require an information system that provides all necessary information on whom to address to obtain licenses and the extent of licenses granted. It could be imagined that this task can be taken over by collecting societies, which are now able to offer pan-European licenses. These licensing mechanisms must be easy and quick to use and preempt objections based on moral rights as much as possible.
The concerns of rightsholders with respect to economic exploitations of their works could be dispensed by offering compensation for certain uses of works that do not run the danger of creating confusion over authorship. At the same time, they would receive another source of income, which could be attractive, especially for artists with older repertoires. A positive side effect could be that songs included in mashups can gain new popularity by bringing them back to public attention. There is, however, no empirical proof that mashups have such an effect, yet.
The problem with a system that distinguishes between commercial and non-commercial mashups is to find the thin red line that marks the distinction between the two types of activities. At some point, individual mashup artists began to profit from their amateur activity by making economic gains. The mashup phenomenon has evolved from amateurs using sample-based music to worldwide popularity with artists that can live from the revenue their productions create. These gains may not always enable an artist to sustain himself completely, but it can be argued that composers, artists and record producers on whose works and efforts mashup artists rely should be allowed to partake in the success of mashup culture. But, when does an artist cross the line between non-commercial activities, or even activities of marginal significance? And, a commercial activity must somehow be determined. Whether this should be assessed quantitatively by the number of downloads or video- and audio-streams, remains a matter open to discussion.
US fair use offers little certainty for mashup artists, but still a bit more than the inflexible system of EU limitations and exceptions. Moreover, it has the potential to open up to new uses if the four factors are applied liberally and generously. The introduction of fair use in Europe has been discussed in academic literature with varying results either as a replacement of the catalogue of limitations and exceptions, or as an addition in the form of an open-ended, catch-all provision. [165]
It is certainly possible – in theory – to adopt a fair use provision and integrate it in some way into the existing copyright acquis. It is also desirable to include such a provision to give the EU copyright system a higher degree of flexibility in order to accommodate technological, cultural and artistic developments that imply reproductions, adaptations and alterations – in other words, the re-use of copyright protected works. Whether or not this is politically feasible is a question that does not need to be answered here.
Assuming that a fair use-style provision would find its way into the Copyright Directive; or in a broader, more comprehensive copyright regulation; or any other piece of EU legislation on copyright, the key to its effectiveness would be its interpretation and application. The current position of the EU judiciary concerning limitations and exceptions is that they must be interpreted restrictively as exception to exclusive rights. This approach would most likely deprive a European fair use exception of many of its potential benefits. Such a situation can be avoided by abandoning the principle of strict interpretation for a purposive approach that aims at striking a ‘new’ balance between the interest of rightsholders, and those of users of protected works. This approach should take into consideration the enabling function of copyright and underline its function as a motor for creativity. Elements of fair use can already be found in the jurisprudence of the CJEU and, if supplemented with a more flexible and integrated three-step test, [166] an open exception could foster creativity for mashup artists and other re-users of protected works.
Moral rights are not harmonized in the EU, yet they can play an important role in enabling and, in particular, disabling mashups. National moral rights, such as the right of integrity, [167] could be used to prevent mashup artists to use parts of works and include them in a bigger composition. Although moral rights were identified as important in the information society already in 1995, [168] today, the Copyright Directive states in recital 18 that “[t]he moral rights of rightsholders should be exercised according to the legislation of the Member States and the provisions of the Berne Convention for the Protection of Literary and Artistic Works, of the WIPO Copyright Treaty, and of the WIPO Performances and Phonograms Treaty. Such moral rights remain outside the scope of this Directive.” [169]
Therefore, mashup artists are confronted with 28 different moral rights systems with the common law Member States providing a lower degree of protection. [170] Whether any of the 28 jurisdictions in their respective formulations of the right of integrity prohibit sampling or the creation of mashups is currently not conclusively explored. It is, however, unlikely that any mashup artist, professional or amateur, is prepared to check whether a new creation would violate the right of integrity in all Member States.
Authors could (ab)use the right of integrity to prevent mashups based on their works, even if, in principle, a copyright exception permitted the use. Ultimately, it would be left to the courts to decide whether certain mashups constitute violations of the right of integrity as a part of the wider notion of moral rights and how moral rights must be reconciled with limitations and exceptions. Harmonization efforts in relation to moral rights could improve legal certainty for mashup artists, but this is not likely to happen anytime soon. None of the recent Green Papers or Commission Communications mentions moral rights in any way, and recital 18 of the Copyright Directive, it seems, has been the last word on this issue. [171] It has been argued that the ruling in Deckmyn could constitute a shift in the direction of moral rights harmonization at EU level. [172] But, the decision would grant an author only a very limited right to object to the re-use of a work, namely only in such cases in which the author has a genuine interest to be disassociated with the new creation. When a new work transports a discriminatory message or one that promotes xenophobia, racism, and comparable sentiments, the balance would probably be struck in favor of the author in most, if not all cases. It is unlikely that a court would refuse the re-use of a work if the author of the original merely dislikes the new work for aesthetic reasons, moderate political views or the like – for parodies or any other transformative works.
Ideally, moral rights should already be considered when formulating limitations and exceptions. Whether this is in the context of a closed list of exceptions, as currently under the Copyright Directive, or by an open exception for non-commercial uses, is of little relevance. The three-step test, still the yardstick for limitations and exceptions under the international and European framework, leaves room for such considerations under the third element (“does not unreasonably prejudice the legitimate interests of the author”). A flexible fair-use style provision in the copyright acquis is more likely to achieve this balance already on the legislative level, even if it is only by instructing the judicature to take the ‘moral’ interests of authors and related rightsholders into consideration.
Although the Commission has repeatedly expressed its intention to facilitate the legal environment for user-generated content (including mashups), little has happened so far to alleviate the situation for ‘recycling artists’ and amateur users.
Under the current legal framework, mainly the exceptions of Article 5 of the Copyright Directive, creators of mashups must be careful in designing their works and have regard to the relevant national laws to find loopholes that permit for the lawful re-use of musical compositions and sound recordings.
In the US, although the situation is far from clear, it seems that an author whose work has elements of a parody (PPar), is mainly distributed privately (DPriv) and has a non-commercial character (CN) is likely to succeed in claiming the fair use defense. Conversely, an artist that produces a mashup solely for entertainment purposes (PEnt), and then distributes the mashup to a wider public (DPub) for economic gain (CC), would fall short of the defense. [173] In a situation where an author parodies another work, and makes the parody available for the public for a slight economical gain, e.g. through advertisements on a homepage, all factors need to be weighed against each other. [174] As this is left to the courts in every individual case, any prediction is flawed with uncertainty. Other transformative works, including mashups, are not disabled, but must climb the higher hurdles of non-parody transformativeness.
Given the wording of the current limitations and exceptions regime in the EU, it is unlikely that a European judge, viz. a judge that applies national law as harmonized by the EU directives on copyright and related rights, would have as much latitude in assessing the legality of mashups as his or her US colleagues have. [175] Further judgments of the CJEU must be awaited. The Deckmyn case has given mashup artists some hope that the freedom of expression venue is worth exploring in the future to further extend the scope of limitations and exceptions.
In comparison to the parody defense under the US fair use doctrine, the CJEU has widened the scope of Article 5(3)(k) by recognizing parodies that comment on the original work, as well as parodies that use an original work to comment on another work. A mashup with more than 30 songs will have its difficulties to display targeted criticism to one particular work, but it is more likely to convey a general critical message. The original contribution must then be sought in the added meaning, the expression of an opinion or mockery. As such, it is at least one hurdle that the US fair use doctrine puts up that must not be overcome by artists under the EU parody exception. This could make room for the argument – which would be difficult to make under US law – that mashups do not directly criticize the songs they are composed of, but a music genre, altogether. Whether or not music mashups that contain no original contribution aside from the arrangement of song snippets will face more difficulties in passing the test for critique and parody, which seems to be the only available limitation that could be a fix for mashups, is still unclear. It is also unclear what ‘mockery’ or ‘humor’ are defined as, with regards to European concepts [176] , and whether mashups that are primarily entertaining and leave room for critical interpretations can be captured by the EU parody exception.
The CJEU also eliminated uncertainty created by the AG in Deckmyn by rejecting the wide margin of discretion for national courts to supplement the indispensable structural elements in the functional dimension of a parody. The Court also refused the strict standard the AG had suggested to balance freedom of expression against rightsholder interests. An interest to be disassociated with a parody is more likely to be applied uniformly in the EU than a standard that is based on opinions which are fundamentally opposed to the core values of the society; such standard might differ from Member State to Member State. [177] What the AG and the Court in Deckmyn both completely ignored, which is part of the US fair use defense, is the potential economic impact of a parody. [178] But, as the AG did not even include these considerations in his section on ‘questions I was not asked’, [179] it is unlikely to play an important role under EU law.
However, the interpretation of existing exceptions and limitations as part of case-by-case decisions is not sufficient to enable mashups in the EU. After Deckmyn, legal certainty for mashups, as well as user-generated content in general, exists only within the limited scope of the parody exception. Enabling mashups in the EU would require a widening of limitations and exceptions to accommodate user-generated content for at least non-commercial purposes, and compulsory licensing schemes for commercial mashups and other types of sample-based music must be considered in order to unleash the creative potential that is slumbering in mashups.
Whether the ongoing review of the EU copyright framework will bring a solution for amateur uses and whether collecting societies or other actors will provide for easy licensing mechanisms remains to be seen. [180] After the disappointing outcome of "Licenses for Europe", it seems unlikely that much more will come from the Commission except for half-hearted commitments from the industry. And, the CJEU does not have much on its docket that could shed light on the effect of limitations and exceptions on user-generated content. Moral rights, as the ‘wild horse’, are still waiting for a place on the European copyright stage, and they are even more likely to disable non-critical mashups.
This means for the moment that mashups are more likely to be found illegal under the EU copyright law regime, which positions European mashup artists slightly worse than their US counterparts. The US fair use doctrine offers more room for flexibility and creativity, certainly under the parody defense, but also for other transformative works. Recent US jurisprudence could denote a change to the effect that the re-use of protected works, under certain conditions, is permitted as transformative without the intention to criticize the borrowed work. In the EU options for transformative works of art beyond the parody exception are still rather limited. The US fair use doctrine should, at least, be considered as an inspiration. A European version of the defense could be constructed based on the three-step test and a wider interpretation of such an exception in comparison to the current interpretational regime.
Currently, neither the US nor the EU copyright system offer legal certainty and, therefore, are likely to strangle (legal) creativity in both markets. With an active mashup scene on the continent and across the pond, it seems only a matter of time until a ‘pure’ mashup-case is brought in front of either court, but it might be, as well, that we have to wait because record companies are afraid that a mashup-favoring ruling might unleash the full potential of this popular art form.
[1] COM(2010) 245 final/2, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A Digital Agenda for Europe, Brussels, 26.08.2010.
[2] COM(2010) 2020 final, European Commission Communication from the Commission. EUROPE 2020. A strategy for smart, sustainable and inclusive growth, Brussels, 3.3.2010.
[3] Declaration (no 52) by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia and the Slovak Republic on the symbols of the European Union, [2007] OJ C306, 267.
[4] Modern dictionaries define the term as "something created by combining elements from two or more sources" and provide examples from the field of music (a piece of music created by digitally overlaying an instrumental track with a vocal track from a different recording"), visual arts ("a movie or video having characters or situations from other sources") and computer software ("a Web service or application that integrates data and functionalities from various online sources") (Merriam Webster online: http://www.merriam-webster.com/dictionary/mash-up); or "A mixture or fusion of disparate elements" (Oxford Dictionaries: http://www.oxforddictionaries.com/definition/english/mash-up?q=mashup).
[5] This is no to say that other forms of mashups do not create legal problems: mashups of audiovisual material create similar problems in terms of reproductions of works or parts of works and their communication to the public, the same is true for mashups of images.
[6] The Pop Danthology 2012 (http://www.youtube.com/watch?v=If5MF4wm1T8, accessed 14 October 2014) has over 58 million views since published on 2 December 2012, DJ Earworm's United State of Pop 2009 (Blame it on the Pop) (http://www.youtube.com/watch?v=iNzrwh2Z2hQ, accessed 14 October 2014) has been viewed more than 44 million times, this does not come close to the Youtube success of popular music songs such as Gangnam Style by the South Korean artist PSY (more than 2,1 billion hits), or other well-known pop artists such as Justin Bieber (slightly more than a billion views), Jennifer Lopez and Eminem. The only video that can break the phalanx of pop-music songs in the Youtube Charts is a video of a small boy biting another boys finger (http://www.youtube.com/watch?v=_OBlgSz8sSM, accessed 14 October 2014) with over 750 million views.
[7] On http://illegal-art.net/girltalk/ (accessed 14 October 2014) Girl Talk's five albums are available as individual mp3s for free, the seamless version cost 5,00 $, CDs and vinyl discs of the albums are available for purchase at higher prices.
[8] Cf. M. A. Pote, Mashed-Up in Between: The Delicate Balance of Artists’ Interests Lost Amidst the War on Copyright, 88 N.C. L. Rev. 639, 646 (2010), see also A. Power, The Mouse That Roared: addressing the Post-Modern Quandary of Mash-ups through Traditional Fair Use Analysis, 8 Vand. J. Ent. & Tech 531, 532 (2006), who for his analysis adds three other criteria: (1) to the pre-existing works that are exclusively used to create a new work he adds (2) that the works must be immediately recognizable, (3) adding further, which significantly narrows his approach, that the new work must criticize or comment on prior recordings, and finally (4) that the now work must be made available for free. Power’s analysis is, therefore, very narrow in scope because it excludes any commercial exploitation in constructing his definition of a ‘mashup’. In relation to his third point, that the new work must “comment or criticize”, Power applies a very generous standard for parody. One element of the parody analysis is the transformative nature of the new work; here he argues that for a mashup both works, in the most elemental form of a mashup, are transformed simultaneously (see p. 537.). Lee takes an even broader view of mashups, expressly including video mashups that incorporate any third-party material, E. Lee, Remixing Lessig, 6 I/S: J.L. & Pol'y for Info. Soc'y 41, 54 (2010).
[9] Initially, Gillis distributed "The Grey Album" by giving out for free a limited number of 3000 CDs, due to its popularity the album was soon circulating on the Internet as downloads and later in p2p networks.
[10] Pote even refers to recycled art, see M. A. Pote, 88 N.C.L.Rev. 639, 640 (2010); further Boone from a music theory perspective in her title: C. Boone, Mashing: Towards a Typology of Recycled Music, 19 Music Theory Online 1 (2013).
[11] Gelke makes the fundamental distinction between four different types of mashups: audio mashups, video mashups, photo mashups and so-called web mashups; web mashups mainly refer to participatory open-source software applications but further encompass geographic novels and HTML5 videos, see E. Gelke, Mashups im Urheberrecht, Nomos, Baden-Baden, 2013, p 168. The term ‘web-mashup’ does not relate in any way to the distribution form of the work, but it is used to distinguish between ‘artistic mashups’ and mashups that integrate other material for purposes of ‘utility’, E. Gelke, (2013), p. 180.
[12] The distinction is often not very clear and at times both terms are used interchangeably, and third-party remixes create similar legal problems as mshups do.
[13] C. Boone, 19 Music Theory Online 1 (2013), 'mashup' as used for the scope of this paper Boone has titled “Basic Mashups"(para 4 et seq.), she distinguishes these from "Cover Mashups"(para 5 et seq.), which do not rely on existing recordings; within the narrower category of 'mashups' she distinguishes 'ordinary' mashups, that include two or slightly more songs from "Paint Palette Mashups" (para 8 et seq) that use small snippets of songs and make them difficult to be recognized, the metaphor is taken from Lessig who commented on a Girl Talk Album: "This is not simply copying. Sounds are being used like paint on a palette. But all the paint has been scratched off of other paintings." (L. Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy, Bloomsbury Academic, London, 2008, p. 70), note that Boone erroneously connects this quote with the Grey Album; another distinction drawn by Boone are "Megamix Mashups" that combine a greater number of songs (para 10 et seq.).
[14] C. Boone, 19 Music Theory Online (2013), para [12.1].
[15] Lessig expresses his difficulties to explain why sound recordings and films on the one side and books and other forms of written copyrighted works are treated differently, see Lessig (2008), pp. 53-54; in 2013 U.D. Bauer published a book that was entirely composed of quotations from other books, even the preface consists exclusively of sentences borrowed from other authors (U.D. Bauer, O.T. - sowie ein Gespräch mit Max Dax, Die Andere Bibliothek, Berlin, 2013).
[16] Indeed, other non-music mashups exist that use parts of existing images and combine them to form a new work of art.
[17] http://2penniesworth.com/2009/12/27/wolverine-comic-covers-homage-to-dali-van-gogh-and-gorey/ (accessed 14 October 2014).
[18] http://www.artsology.com/mashup_1.php (accessed 14 October 2014).
[19] http://www.huffingtonpost.com/2013/12/15/star-warhols_n_4413528.html (accessed 14 October 2014).
[20] See http://www.chungkong.nl (accessed 14 October 2014).
[21] From a legal perspective this is extremely relevant as it increases content that relies on acts of reproduction, which is protected by copyright, as Lessig has put it: "remixing without technology does not copy", L. Lessig, Free(ing) Culture for Remix, 2004 Utah L. Rev 961, 964 (2004).
[22] See M. A. Pote, 88 N.C.L.Rev 639, 642 (2010).
[23] COM(2011) 427 final, Green Paper on the online distribution of audiovisual works in the European Union: opportunities and challenges towards a single market, Brussels, 13.07.2011, p. 14; COM(2011) 287 final, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A Single Market for Intellectual Property Rights. Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe, Brussels, 24.05.2011 under chapter 3.3.3. User-generated content.
[24] COM(2012) 789 final, Communication from the Commission. On content in the Digital Single Market, Brussels, 18.12.2012.
[25] http://ec.europa.eu/internal_market/copyright/docs/licences-for-europe/131113_ten-pledges_en.pdf (accessed 14 October 2014).
[26] See Consultation on copyright p. 29, available at: http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/docs/consultation-document_en.pdf (accessed 14 October 2014).
[27] COM(2011) 287 final, para. 3.3.3.
[28] Public Consultation on the review of the EU copyright rules, p. 29.
[29] COM(2011) 287 final, para. 3.3.3.
[30] Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, OJ L 84, 20.03.2014, p. 72-98.
[31] J Poort/J.P. Quintais, The Levy Runs Dry: A Legal and Economic Analysis of EU Private Copying Levies, JIPITEC 2013.
[32] M. A. Pote, 88 N.C.L.Rev 639, 683 (2010).
[33] One notable exception is a dissertation published only in 2013: E. Gelke (2013). However this is an analysis that focuses on mashups under German copyright law, albeit it does touch, out of necessity on a number of aspects in relation to EU copyright law.
[34] Power has argued that licensing per se endangers a vivid mashup culture as the imposition of licensing fees could deter amateur users to create mashups in the first place, see. A.Power, 8 Vand. J. Ent. & Tech 531, 534 (2006).
[35] Section 107 complements a number of exceptions and limitations contained in sections 108-112.
[36] J. Mazzone, Copyfraud and Other Abuses of Intellectual Property Law, Stanford University Press, Stanford, 2011, p. 59.
[37] Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004).
[38] J. Mazzone (2011), p. 59.
[39] Newton v. Diamond, 388 F.3d 1189(9th Cir. 2004).
[40] Elsmere Music Inc. v. Nat'l Broad. Co., Inc., 482 F. Supp. 741, 743-44 (S.D.N.Y. 1980), aff'd sub nom. 623 F.2d 252 (2nd Cir.1980).
[41] Bridgeport Music, Inc v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).
[42] J. Mazzone (2011), pp. 58-59.
[43] E. Harper, Music Mashups: Testing the Limits of Copyright Law as Remix Culture Takes Society by Storm, 39 Hofstra L.Rev 405, 420 (2010); see E. Lae, Mashups, A Protected Form of Appropriation Art or a Blatant Copyright Infringement? (December 2011), pp. 21-22,; available at SSRN: http://ssrn.com/abstract=2003854, with further references.
[44] In Newton v. Diamond the defendants had failed to acquire a license for the musical composition underlying the sound recording, but the sample taken from the original song was deemed to be insubstantial in relation to the entire work and therefore the claimant could not establish a prima facie case of copyright violation for the musical composition, see E. Lae (SSRN: December 2011), pp. 8-9.
[45] 17 U.S.C. §114(b) provides that the exclusive rights in sound recordings “do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.”
[46] See E. Lae (SSRN: December 2011), p. 8; Saregama India Ltd. v. Mosley, 687 f. Supp. 2nd 1325 (S.D. Fla 2009).
[47] Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539 (1985).
[48] 17 U.S.C. § 107 reads: "[T]he fair use of a copyrighted work [...] for purposes such as criticism, comment, news reporting, teaching [...] scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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.
[49] Campbell v. Acuff-Rose Music, Inc., 510, 579 U.S. 569 (1994).
[50] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994), and further: "[Transformative works] lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright".
[51] Harper reads Campbell as implying that first element, the purpose and character of the use, is the most important, the reading of the Supreme Court judgment, does not necessarily support this reading, E. Harper, 39 Hofstra L.Rev 405, 422 (2010).
[52] E. Harper, 39 Hofstra L.Rev 405, 423 (2010).
[53] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994): "We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107."
[54] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), p. 570
[55] In particular because the court in Dr Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997), argued that parodies must be distinguished from satirical works; whereas the latter generally comment or criticize society and is therefore not transformative, the former comment or criticize a particular work. Mashups, if only two tracks are combined, can hardly claim to be a parody of one or the other song. The situation gets even worse for fair use defendants when multiple songs are mashed and the work that is supposed to be subject to parody becomes even harder to identify. See also M. A. Pote, 88 N.C.L.Rev 639, 671 (2010).
[56] "[The song] reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences.", Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994).
[57] However, Pote argues, that it is unclear what two songs in a mashup, in his example a drum beat from Nirvana and the chorus of Elton John's "Tiny Dancer" could have to say about each other, put differently, what would be the element of critique or parody in the absence of original input of the author, M. A. Pote, 88 N.C.L.Rev 639, 673 (2010).
[58] A. Power, 8 Vand. J. Ent. & Tech 531, 537 (2006).
[59] K. Eble, This is a Remix: Remixing Music Copyright to Better Protect Mashup Artists, 2013 U. Ill. L. Rev. 661, 677 (2013).
[60] See K. Eble, 2013 U. Ill. L. Rev. 661, 677 (2013), see also E. Lae (SSRN: December 2011), p. 11.
[61] V. Elman/A. Middleton, Girl Talk on Trial: Could Fair Use Prevail?, 2009 Cardozo L. Rev. 149, 153-154 (2009); it can further be argued that mashups, which combine a greater number of songs criticize entire genres, the monotony of popular music, the consumer society etc.
[62] Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006).
[63] It is unlikely here that Koons wanted his audience to recognize the legs as a part of Blanche's work, in his affidavit he stated that he wanted to "comment on the ways in which some of our most basic appetites - for food, play, and sex - are mediated by popular images." (Blanch v. Koons, 467 F.3d 244, 247 (2d Cir. 2006)).
[64] Blanch v. Koons, 467 F.3d 244, 254 (2d Cir. 2006); the court confirmed the ruling in Campbell v. Acuff Rose Music, but maintained the distinction between parody and satire, adding that "the broad principles of Campbell are not limited to cases involving parody."
[65] Rogers v. Koons, 960 F.2d 301, (2d Cir. 1992).
[66] A. Power, 8 Vand. J. Ent. & Tech 531, 537 (2006).
[67] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584-585 (1994).
[68] Other types of mashups that use news videos or other works of facts would be treated differently.
[69] E. Harper, 39 Hofstra L.Rev 405, 430-432 (2010), adds that published works receive less protection than unpublished works, coming, however, to the same conclusion; E. Lae (SSRN: December 2011), pp. 14-15; A .Power, 8 Vand. J. Ent. & Tech 531, 538 (2006); K. Eble, 2013 U. Ill. L. Rev. 661, 678 (2013),
[70] Advocating for a defense of parodies: E. Lae (SSRN: December 2011), against a detrimental effect of this element A. Power, 8 Vand. J. Ent. & Tech 531 (2006). undecided, leaving the matter to a case-by-case decision E. Harper, 39 Hofstra L.Rev 405 (2010).
[71] Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).
[72] The Court in Fisher v. Dees identified three factors whether the amount of appropriated content of a song is excessive: "the degree of public recognition of the original work, the ease of conjuring up the original work in the chosen medium, and the focus of the parody.", Fisher v. Dees, 794 F.2d 432, 438 (9th Cir. 1986); see also with further references E. Lae (SSRN: December 2011), p. 15.
[73] So called A vs. B mashups combine only two songs by contrasting the vocal track of song A with the audio track of song B. Often the speed of either track, or both is adjusted to synchronize the length of both tracks.
[74] K. Eble, 2013 U. Ill. L. Rev. 661, 679 (2013),
[75] Harper & Row Publishers, Inc., v. Nation Enter., 471 U.S. 539 (1985).
[76] E. Lae (SSRN: December 2011), p. 16.
[77] E. Harper, 39 Hofstra L.Rev 405, 423 (2010): the author argues that although mashups do not affect the primary market for the original works as mashups do not compete with these works, the secondary market for derivative works would face competition from mashups; although no statistical data for this scenario is available it is rather unusual that authors of original works engage in mashing their own songs with songs of other authors, or even with their own songs, unless they publish medley albums, which, this author believes, and hopes, are things of the past.
[78] 17 U.S.C. § 106 reads: "[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
[...]
(2) to prepare derivative works based upon the copyrighted work;".
[79] See e.g. E. Harper, 39 Hofstra L.Rev 405, 428-429.
[80] See e.g. E. Lae (SSRN: December 2011), p. 17.
[81] Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986) and Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
[82] Understandably so, because which author would willingly agree to grant a license to enable his work to be ridiculed in public!
[83] Interesting, arguing both sides in a fictitious court opinion see V. Elman/A. Middleton, 2009 Cardozo L. Rev. 149, (2009).
[84] Rather positive A. Power, 8 Vand. J. Ent. & Tech 531 (2006), also affirmative M. A. Pote, 88 N.C.L.Rev 639 (2010).
[85] Strongly opposed, rather favoring an effective licensing system based on the idea of fair compensation for rightsholders E. Harper, 39 Hofstra L.Rev 405 (2010).
[86] E. Lae (SSRN: December 2011), as a short-term solution, for the future suggests compulsory licensing system for sound recordings.
[87] J. Mazzone (2011), p. 50.
[88] Cf. J. Mazzone (2011), p. 68.
[89] R.M. Vrana, The Remix Artist’s Catch-22: A Proposal for Compulsory Licensing for Transformative Sampling-Based Music, 68 Wash. & Lee L. Rev. 811, 832 (2011).
[90] Cf. R.M. Vrana, 68 Wash. & Lee L. Rev. 811, 837 (2011).
[91] See Case 78/70, Deutsche Grammophon Gesellschaft mbH v Metro-SB-Großmärkte GmbH & Co. KG, EU:C:1971:59; Joined Cases 55/80 and 57/80, Musik-Vertrieb membran GmbH et K-tel International v GEMA - Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte, EU:C:1981:10; Case 262/81; Coditel SA, Compagnie générale pour la diffusion de la télévision, and others v Ciné-Vog Films SA and others, EU:C:1982:334; Case 158/86, Warner Brothers Inc. and Metronome Video ApS v Erik Viuff Christiansen, EU:C:1988:242; Case 341/87, EMI Electrola GmbH v Patricia Im- und Export and others, EU:C:1989:30; Case C-200/96, Metronome Musik GmbH v Music Point Hokamp GmbH, EU:C:1998:172; Case C-128/11, UsedSoft GmbH v Oracle International Corp., EU:C:2012:407; in particular a recent case (Case C-128/11) has extended the so-called exhaustion principle, under which the right to control the marketing and resale of copyrighted material is exhausted once it has been legally marketed with the consent of the rightsholder anywhere in the EU, to software that is distributed through a website and simply downloaded by the customer.
[92] Not least the Directives serves to implement many obligations arising under the WIPO Internet Treaties, the WIPO Copyright Treaty (1996) and the WIPO Performances and Phonograms Treaty (1996).
[93] Article 2 of Directive 2001/29/EC.
[94] Article 3(1) of Directive 2001/29/EC.
[95] Article 3(2) of Directive 2001/29/EC.
[96] Article 4 of Directive 2001/29/EC.
[97] Emphasis added.
[98] Article 2(b) and (c) Directive 2001/29/EC.
[99] Cf. recital 23 of the Copyright Directive, see further T. Shapiro, “Part II Directive 2001/20/EC on copyright in the information society”, in: B. Lindner/T. Shapiro, Copyright in the Information Society: A Guide to National Implementation of the European Directive, Edward Elgar, Cheltenham/Northampton, 2011, p. 32.
[100] I. Stamatoudi/P. Torremans, „The Information Society Directive“, in: I. Stamatoudi/P. Torremans, EU Copyright Law. A Commentary, Edward Elgar, Cheltenham/Northampton, 2011, para 11.36.
[101] M.-C. Janssens in: E. Derclaye (2009), .p. 324, see also recitals 4, 9 and 11 of Directive 2001/29/EC, also COM(2008) 466 final, p. 4.
[102] See M.-C. Janssens, The issue of exceptions: reshaping the keys to the gates in the territory of literary, musical and artistic creation, in: E. Derclaye, Research Handbook on the Future of EU Copyright (Research Handbooks in Intellectual Property), Edward Elgar, Cheltenham/Northampton, 2009, p. 324.
[103] See recital 32 Copyright Directive, further T. Shapiro in: B. Lindner/T. Shapiro (2011), p. 40 and CJEU Order of the Court in Case C-302/10, Infopaq International A/S v Danske Dagblades Forening (Infopaq II), EU:C:2012:16, Judgment in Joined cases C-403/08 and C-429/08, Football Association Premier League Ltd and Others v QC Leisure and Other (FAPL), EU:C:2011:631.
[104] Although implemented in almost all Member States and covered by similar defenses (e.g. fair dealing in the UK), the quotation exception, as the wording suggests, related to works that incorporate other works to make reference to that work. A mashup, which commenting or criticizing function is difficult to assess, would more likely not fall under this defense. Cf. Queen Mary Intellectual Property Research Institute: Study on the Implementation and Effect in Member States' Laws of Directive 2001/29/EC on the Harmonization of Certain Aspects of Copyright and related Rights in the Information Society. Final Report. Part II. The Implementation of Directive 2001/29/EC in the Member States. Study commissioned by the European Commission, February 2007 2006, pp. 44-45, available at: http://ec.europa.eu/internal_market/copyright/docs/studies/infosoc-study-annex_en.pdf.pdf (accessed 14 October 2014).
[105] Article 5(3)(o) of Directive 2001/29/EC.
[106] J.-L. Piotraut, Limitations and Exceptions: Towards a European “Fair Use” Doctrine?”, in: A. Ohly, Common Principles of European Intellectual Property Law, Mohr Siebeck, Tübingen, 2012, p. 156 and p. 164 and Recital 32 of Directive 2001/29/EC.
[107] It has been argued that Member States do have some room for flexibility under the current regime, see C. Geiger/F. Schönherr, Defining the Scope of Protection of Copyright in the EU: The Need to Reconsider the Acquis regarding Limitations and Exceptions, in T.-E. Synodinou, Codification of European Copyright Law. Challenges and Perspectives, Kluwer Law International, Alphen aan den Rijn, 2012), pp. 143 et seq.
[108] C. Geiger/F. Schönherr, in T.-E. Synodinou (2012), pp. 145-147, further: C. Geiger, The Three-Step Test, a Threat to a Balanced Copyright Law, IIC 2006, pp. 683-698; A. Lucas, For a reasonable interpretation of the three step test, EIPR 2010, pp. 277-282; and M. Senftleben, The International Three-Step-Test. A Model Provision for EC Fair Use Legislation, JIPITEC 2010, pp. 67-82, however, Advocate General Sharpston in para. 40 of her Opinion in CJEU Case C-351/12, OSA - Ochranný svaz autorský pro práva k dílům hudebním o.s. v Léčebné lázně Mariánské Lázně a.s, EU:C:2014:110 stated that the three-step test of the Copyright Directive does not entitle Member States to create new exceptions but "merely states the scope of the exceptions and limitations provided for in the paragraphs preceding Article 5(5)". The Court confirmed this in para. 35 of the judgment.
[109] Transient copying under Article 5(1) without the authorization of the rightsholder is only permitted for lawful uses and the profit generated by may not go beyond that of a lawful use (Judgment in Infopaq II EU:C:2012:16), temporary reproduction in satellite decoders or on a TV screen are within the scope of Article 5(1) (Judgment in FAPL EU:C:2011:631).
[110] A. Kur/T. Dreier, European Intellectual Property Law: Text, Cases and Materials, Edward Elgar, Cheltenham, Northampton, 2013, p. 302, see Judgment in C-5/08, Infopaq International A/S v Danske Dagblades Forening (Infopaq I), EU:C:2009:465, paras. 56-57 and Judgment in FAPL EU:C:2011:631, para 162.
[111] See e.g. A. Kur/T. Dreier (2013), p. 302; even further: C. Geiger/E .Izyumenko, Copyright on the Human Rights’ Trial: Redefining the Boundaries of Exclusivity Through Freedom of Expression, IIC 2014, the authors argue for an external counterweight to copyright in the form of the right to freedom of expression, based on the jurisprudence of the ECtHR, which in its analysis employs aspects of the US fair use defense.
[112] Judgment in C-201/13, Deckmyn v Vandersteen (Deckmyn), EU:C:2014:2132, para 23, and before also in FAPL EU:C:2011:631, paras 162-163; see also ; M. Leistner, Europe's Copyright Law Decade: Recent Case Law of the European Court of Justice and Policy Perspectives, CMLRev 2014, pp. 585-586. With a limitation to technical processes, Judgment in C-360/13, Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd, EU:C:2014:1195, para 24.
[113] Cf. M.-C. Janssens in: E. Derclaye (2009).p. 323.
[114] Judgment in Infopaq I EU:C:2009:465, para. 56, see further J. Griffiths, Unsticking the centre-piece - the liberation of European copyright law?, JIPITEC 2010, p. 88.
[115] Judgment in C-467/08, Padawan SL v Sociedad General de Autores y Editores de España (SGAE), EU:C:2011:798, paras. 35-37; the Court specified that the optional nature of the exception, which leaves Member States free to adopt it, does not mean that Member States are free to interpret it "in an inconsistent and un-harmonised manner which may vary from one Member State to another".
[116] Opinion of AG Cruz Villalón in C-201/13, Deckmyn v Vandersteen (Deckmyn), EU:C:2014:458, paras. 32-37.
[117] Ibid. para 38.
[118] Judgment in Deckmyn EU:C:2014:2132, para 16.
[119] Opinion of AG Cruz Villalón in Deckmyn EU:C:2014:458, para 43.
[120] Ibid. para 44.
[121] Ibid. para 46.
[122] Ibid. para 49.
[123] Ibid. para 50.
[124] Ibid. para 51.
[125] The notion of originality has been discussed more recently in Painer (Judgment in C-145/10, Eva-Maria Painer v Standard VerlagsGmbH and Others (Painer), EU:C:2013:138.) In this case the Court stated, reiterating its finding in Infopaq I, that "copyright is liable to apply only in relation to a subject-matter [...] which is original in the sense that it is its author’s own intellectual creation." (Judgment in Infopaq II EU:C:2012:16, para 37, see also Judgment in Painer EU:C:2013:138, para 87.) When discussing the notion of parody in relation to mashups it is critical whether a work that is entirely composed of pre-existing material is original. However, the use of copyrighted material under the parody defense must not necessarily meet the originality requirement, because the latter is only relevant when considering whether a given work enjoys copyright protection itself. The consequence would be that the work that parodies would itself not be protected under copyright. In how far the original works used to produce the parody enjoy continuing protection as parts of the parody is another question. However, it can be argued that even transformative works can be original if they only make use of pre-existing material. It is in fact argued, that Article 5(3)(k) only applies to transformative uses. (M. Borghi/S. Karapapa, Copyright and Mass Digitization, Oxford University Press, Oxford, New York et al, 2013, p. 35).
[126] Ibid. para 58.
[127] Ibid. paras 54, 56; therefore the AG did not address the question asked by the referring court whether a parody must explicitly mention the original work it is based on.
[128] Judgment in Deckmyn EU:C:2014:2132, para 20.
[129] Ibid. paras 21-24.
[130] Ibid. para 61.
[131] Ibid. para 65.
[132] Ibid. paras 67-68.
[133] Ibid. para 69.
[134] Ibid. para 80.
[135] Ibid. para 85.
[136] Ibid. para 85.
[137] Ibid. para 87.
[138] Judgment in Deckmyn EU:C:2014:2132, paras 25-26.
[139] Ibid, para 27; this does not only include the interests of authors but also record producers, and other related-rightsholders.
[140] Ibid, para 31.
[141] The AG in Deckmyn had explicitly referred to the three-step test as an issue he would not address, as the referring court had not referred a question in that regards. see ibid. para 29; the AG further did not address the issue of moral rights, which he seems to consider relevant, but was prevented from elaborating on the matter for the same reasons, para 28.
[142] However, the grandfather clause in Article 5(3)(o) could preserve applicable exceptions in Members States before the Copyright Directive came into force, it is however limited to "cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community".
[143] Cf. M. Kleinemenke, Fair Use im deutschen und europäischen Urheberrecht?: Eine rechtsvergleichende Untersuchung zur Flexibilisierung des urheberrechtlichen. der US-amerikanischen Fair Use-Doktrin, Nomos, Baden-Baden, 2013, p. 566.
[144] See also C. Seville, “EU Intellectual Property Law and Policy, Edward Elgar, Cheltenham/Northampton, 2009, p. 53.
[145] M. Kleinemenke (2013), p. 567.
[146] C. Geiger/F. Schönherr, in T.-E. Synodinou (2012), p. 136.
[147] M. v. Eechoud/B. Hugenholtz et al., Harmonizing European Copyright Law: The Challenges of Better Lawmaking, Kluwer Law International, Alphen aan den Rijn, 2009, p. 300.
[148] Cf. B. Hugenholtz, Harmonization or Unification of EU Copyright Law, in: J. Axhamn, Copyright in a borderless online environment, Norstedts Juridik, Stockholm, 2012, p. 193.
[149] Ibid, p. 193.
[150] Ibid.
[151] M.-C. Janssens in: E. Derclaye (2009), p. 327.
[152] C. Geiger/F. Schönherr, in T.-E. Synodinou (2012), p. 136; similar also Institute for Information Law, University of Amsterdam: The Recasting of Copyright & Related Rights for the Knowledge Economy. Study commissioned by the European Commission, November 2006, p. 74, available at: http://ec.europa.eu/internal_market/copyright/docs/studies/etd2005imd195recast_report_2006.pdf, accessed 14 October 2014.
[153] A. Kur/T. Dreier (2013), p. 302.
[154] Directive 2006/115/EC, musical compositions enjoy a term of protection of 70 years after the death of the any of the authors (Article 1(7)), phonograms are protected for 70 years after their first fixation (Article 3(2)).
[155] The big music labels might be able to shoulder the licensing burden.
[156] https://online.gema.de/lipo/index.hsp, accessed 14 October 2014.
[157] SACEM, SCPP, SPPF.
[158] http://www.copyrighthub.co.uk (accessed 14 October 2014).
[159] Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, OJ L 84, 20.03.2014, p. 72-98.
[160] L. Lessig (2008), pp. 254 et seq.
[161] The Wittem Project, “European copyright code” (April 2010), available at http://www.copyrightcode.eu (accessed 14 October 2014); Article 5.2(1)(e) in connection with 5(5).
[162] Arguing even further: M.-C. Janssens in: E. Derclaye (2009), p. 339.
[163] Institute for Information Law, University of Amsterdam: The Recasting of Copyright & Related Rights for the Knowledge Economy. Study commissioned by the European Commission, November 2006, p. 75, available at: http://ec.europa.eu/internal_market/copyright/docs/studies/etd2005imd195recast_report_2006.pdf, accessed 14 October 2014; M. Senftleben and B. Hugenholtz already see room for flexibility in the current system of the Copyright Directive, cf. Fair Use in Europe. In Search of Flexibilities. Study funded by Google, November 2011, p. 13 et seq., available at: http://www.ivir.nl/publications/hugenholtz/Fair%20Use%20Report%20PUB.pdf (accessed 14 October 2014).
[164] A similar system is suggested for the US by R.M. Vrana, 68 Wash. & Lee L. Rev. 811, 850 et seq. (2011).
[165] J. Griffiths, JIPITEC 2010, pp. 91 et seq; see also the suggestion made by the Wittem Group.
[166] Cf. M. Senftleben/B. Hugenholtz, Fair Use in Europe (2011), pp. 18 et seq. and 29-30.
[167] Specifically on the right to integrity in the EU and related problems: J. de Werra, The moral right of integrity, in: E. Derclaye (2009), in particular pp. 281 et seq.
[168] In a 1995 Green Paper the importance of moral rights against the background of technological development was stressed and with reference to the case law of the CJEU moral rights were included in the specific subject matter of copyright, COM(95) 382 final, Copyright and Related Rights in the Information Society, Brussels, 19.07.1995, Section VII pp. 65-68; the Green Paper expressly states the importance of moral rights for transformative uses with new technologies: "One aspect of the information society is that total digitization of works and other protected matter combined with interactivity over networks means that it is becoming easier and easier to transform works, to colourize them, to reduce them and so on." p. 65.
[169] See also W. Grosheide, Moral Rights” Research Handbooks in Intellectual Property, in E. Derclaye (2009), pp. 256 et seq.
[170] Cf. P. Goldstein/B. Hugenholtz, International Copyright: Principles, Law, and Practice, Oxford University Press, Oxford, New York et al., 3rd ed., 2012, p. 364.
[171] Academics, however, argue that European copyright, especially if harmonization is further advanced, can hardly afford to leave moral rights out of the picture, see.e.g. I. Kikkis, Moral Rights, in: T.-E. Synodinou (2012), in particular pp. 234 et seq.
[172] Cf. http://ipkitten.blogspot.com/2014/09/has-cjeu-in-deckmyn-de-facto-harmonised.html (accessed 14 October 2014).
[173] See, for similar solution: K. Eble, 2013 U. Ill. L. Rev. 661, 688 (2013).
[174] If one were to put this balancing exercise into an arithmetical formula it would probably look like this: PPar + DPriv + CN > PEnt + DPub + CC. The equation, in a more advanced model, would have to include the political position of the judge as well, whether he or she is a supporter of string exclusive rights of rightsholders, or whether he or she is in support of a healthy balance between exclusive rights and public uses.
[175] A recent French report on transformative works by Valérie Laure Benabou assessed the accommodation of transformative works under French copyright law, coming to the conclusion that not only is French law (as harmonized by EU law) unfit to accommodate transformative works, but that in particular moral rights will pose a barrier to an enabling legal environment for transformative creations: cf. rapport de la mission du CSPLA sur les “œuvres transformatives”, available at: http://static.pcinpact.com/medias/rappport-oeuvres-transformatives.pdf (accessed 14 October 2014).
[176] In the same way that the fundamental values of the society are different in every Member States, the perception of humor, at least the author has experienced this, differs from country to country, region to region, between persons of different ages, genders, professions etc.
[177] See e.g. Judgment in Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn, EU:C:2004:614, in which the Court allowed for a derogation from the free movement of services on public policy grounds, the same argument could be permitted to prohibit the (online) distribution of a parody in some Member States, whereas the work could be communicated to the public or made available via download in other Member States.
[178] Although economic considerations have recently played a role in the case-law of the CJEU, compare Judgment in Case C-306/05, Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA, EU:C:2006:764, Judgment in Case C-135/10, Società Consortile Fonografici (SCF) v Marco Del Corso, EU:C:2012:140, and Judgment in Case C-351/12, OSA – Ochranný svaz autorský pro práva k dílům hudebním o.s. v Léčebné lázně Mariánské Lázně a.s., EU:C:2014:110.
[179] Opinion of AG Cruz Villalón in Deckmyn EU:C:2014:458, paras. 27-29.
[180] A high degree of uncertainty is reflected in the “Report on the responses to the Public Consultation on the Review of the EU Copyright Rules”, European Commission, July 2014, pp. 67-68, available at: http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/docs/contributions/consultation-report_en.pdf (accessed 14 October 2014).