Destereotyping the Copyright Wars: The 'Fair Use vs. Closed List' Debate in the EU

Abstract

The paper critically addresses the alleged lack of flexibility of the closed list of limitations to copyright. It calls into question the established idea that the closed catalogue of Article 5 of the Information Society Directive has been preventing European courts from accommodating new technology-enabled uses of copyrighted works. Particularly, it analyses the judicial approach on both sides of the Atlantic to three of these uses: thumbnails, caching and downloading. The conclusion reached in the paper is twofold: (i) European courts frequently interpret limitations in an ample fashion, rendering emerging unauthorized uses non-infringing, despite the absence of a limitation whose letter expressly harbors them; (ii) the outcomes courts reach in Europe and in the U.S. are largely convergent, in spite of the doctrinal differences. The analysis suggests that the main problem with closed lists of limitations is the legal uncertainty they generate – the opposite of what is commonly touted as being their main advantage.