Exemptions from copyright infringement play a pivotal role in the new digital economy. Tech companies rely heavily on fair use, fair dealing and other statutory exceptions, as well as on safe-harbour limitations of liability. For many businesses, the availability of a copyright exemption represents an asset that is as valuable as other intellectual property rights in their portfolio. This trend is also reflected at policy level worldwide, where so-called ‘fair use industries’ push for stronger exemptions by use of strategies and arguments that are very similar (albeit specular) to those applied by traditional copyright industries to lobby for stronger copyright protection. This changing role of copyright exemptions carries important policy and doctrinal implications, which form the subject of this chapter. The key point of discussion is that beneficiaries of exemptions are often in a position to create proprietary or quasi-proprietary entitlements around their copyright-exempted uses, thereby turning exemptions into de facto exclusive rights in reverse. I call this phenomenon ‘fair use exclusivity’. The chapter considers some paradigmatic examples of fair use exclusivity. It then discusses, from a normative perspective, possible approaches that legislators can adopt to ensure a fair, unbiased functioning of copyright exemptions in the new digital environment.
Maurizio Borghi and Stavroula Karapapa
With the advent of mass digitization projects, such as the Google Book Search, a peculiar shift has occurred in the way that copyright works are dealt with. Contrary to what has so far been the case, works are turned into machine-readable data to be automatically processed for various purposes without the expression of works being displayed to the public. In the Google Book Settlement Agreement, this new kind of usage is referred to as ‘non-display uses’ of digital works. The legitimacy of these uses has not yet been tested by Courts and does not comfortably fit in the current copyright doctrine, plainly because the works are not used as works but as something else, namely as data. Since non-display uses may prove to be a very lucrative market in the near future, with the potential to affect the way people use copyright works, we examine non-display uses under the prism of copyright principles to determine the boundaries of their legitimacy. Through this examination, we provide a categorization of the activities carried out under the heading of ‘non-display uses’, we examine their lawfulness under the current copyright doctrine and approach the phenomenon from the spectrum of data protection law that could apply, by analogy, to the use of copyright works as processable data.