Fairness As A Legal Concept - A Guiding Principle For IP? Presented by: Annette Kur, affiliated fellow, MPI for Innovation and Competition, Munich Date: 6th May 2021 Alarm - German Artists Are Outraged - Heise News: • Copyright reform: artists are outraged about free content snippets • Online version:  Pirates in the ministry - do German artists lose their copyright in the internet?  "Of course, we all felt trivialized"; quoting authors of an open letter sent to members of the Bundestag Background - Keeping promises made during the protests concerning art. 13 (later: Art. 17) of the DSM Directive - while - Trying to close or narrow the 'value gap' Act To Adapt Copyright Law To The Requirement The Digital Single Market - Section 9 Communication to the public of uses presumably authorized by law 1. In order to avoid disproportionate blocking by automated procedures, uses presumably authorized by law must be communicated to the public up until the conclusion of a complaint’s procedure (section 14), 2. It is rebuttably presumed in respect of user-generated content which • Contains less than half of a work or several works by third parties, • Combines the part or parts of a work referred to in no. 1 with other content, and • Uses the works of third parties only to a minor extent (section 10) or is flagged as legally authorized (section 11), - That its use is authorized by law in accordance with section 5 (uses presumably authorized by law). Images may be used in their entirety in accordance with sections 10 and 11. (3) Service providers must immediately inform the right holder of the communication to the public and must advise the right holder of the right to lodge a complaint in accordance with section 14 in order to have the presumption under subsection (2) reviewed Why This Example? - Complexity of the issue - Specificity of legal reaction and risks implied therein - Fairness - from whose perspective? No Mission Impossible - Why? - How? - When (which situations)? - Examples Why? - A 'middle route' - An autonomous legal term (also: honest business practices) How? - Steps to be taken • Investigating the meaning of 'fairness', 'honest commercial practices' and similar terms  In EU law o Secondary law (marketing; IP) o Primary law  International law • Investigating fairness as procedure  Accessibility of proceedings  Fairness as built-in element of (automated) systems - A tentative structure • Suggestion: A tripartite structure of what is not fair (in a commercial context)  Misleading practices  Taking of (unfair) advantage  Impairment  Presenting set as an imitation - Proportionality • - The solution must ultimately be sought in a proportionality assessment What about other fields of IP? • Honest commercial practices = fairness • Formula (Aplin & Bently): to be drawn from  The rationales of copyright (or: the IP right at stake in a given case)  Freedom of expression  Distributive justice When (which situations)? - No complete replacement of classical paradigms - Leeway needed - consequence for legislation Further Suggestions and Examples - A wealth of suggestions in the literature - Trade Secrets directive - Jurisprudence (EU)