Collateral Damage: Reuse in the Arts and the New Role of Quotation Provisions in Countries with Free Use Provisions After the ECJ’s Pelham, Funke Medien and Spiegel Online Judgments

Abstract

This article examines the impact of the European Court of Justice’s Pelham decision (C-476/17) on reuse, including appropriation art, borrowing and plagiarism in the arts, especially in music. Insofar, the focus lies on countries that have operated before with broad free use provisions. Specifically, we consider the extent to which EU law permits quotation provisions to fill the gap left by free use limitations, which have been curtailed by the Pelham decision. As we explain, Pelham creates a more restrictive approach to certain unlicensed use of copyright materials in new works of artistic expression, including music appropriation. We present our research in four sections. First, we compare existing national free use and quotation provisions in four states subject to EU law regarding their respective wiggle room for unlicensed yet lawful reuse in the arts. Second, we explore how the ECJ’s interpretation of the InfoSoc quotation exception, particularly in the Pelham, Funke Medien and Spiegel Online judgments, minimises the leeway for reuse in the arts provided by these national quotation provisions, in comparison to free use provisions. (Information Society Directive, 2001/29/EC.) Third, we address possible objections to our position and explain why we believe the consequences of the ECJ decisions cannot be bypassed. (Copyright in the Digital Single Market Directive, (EU) 2019/790.) Finally, in the conclusion, we explore the consequences, including the need for legislative reform.