Copyright law provides for quite a few statutory exceptions in favour of freedom of information. There are for instance the exceptions in favour of quotation and parody. In the EU, it is commonly believed that the list of exceptions to copyright is exhaustive. In the US, however, there is a broad general exception in copyright law allowing any ‘fair use’. Many Dutch scholars advocate the establishment of such a fair use rule in Europe. Its flexibility would be particularly desirable in view of new technologies. On the whole, right holders are against a general fair use clause because they fear that copyright will become too weak. However, the debate about fair use in the EU has become much less important due to important recent Dutch and EU case law.
Apart from the exceptions within copyright law, defendants often appeal to the fundamental right of freedom of information laid down in various international instruments. Usually, this is rejected by the courts, with the simple statement that copyright constitutes a restriction provided by law on that freedom of information. But it is no longer as simple as that. According to the Dutch Supreme Court, courts need to examine whether, ‘in the specific case, the enforcement of an intellectual property right conflicts with another fundamental right. Even though, while creating regulations regarding intellectual property, a fair balance between the various fundamental rights has to be assured, that does not mean that the court should not also investigate whether, in the circumstances of the case, the granting of the requested measure, given the principle of proportionality, does not affect the fundamental right to which the party being sued invokes, too much.’ That fundamental right is usually the freedom of information.
A distinction has to be made between, on the one hand, expression contributing to a public debate, and on the other hand, commercial speech. Commercial speech does not enjoy as much protection as free speech contributing to a public debate. When it comes to commercial speech national authorities enjoy a particularly wide margin of appreciation. Consequently, there is no guarantee that future decisions will more often be against copyright. The debate about the need for a fair use provision within copyright has however become more academic. In light of Dutch and EU case law, courts always have to find a ‘fair balance' between copyright and freedom of information and cannot hide behind outdated or limited statutory exceptions within copyright law.
(The author would like to thank Lora Mourcous for her assistance).