The right of adaptation has not been generally harmonised at the EU level: true or false?

Gigi is very adaptable
when it comes
to where to sleep,
but is this what the
adaptation right is about?

Calling all students who are revising for their spring exams! What is the right answer to this question? 

Until now most people - including a number of leading copyright academics - would have easily opted for 'true'. 

However, following a number of recent decisions of the Court of Justice of the European Union (CJEU) and the even more recent leaked text of the draft Impact Assessment (IA) of the Commission on the modernisation of the EU copyright acquis [here and here] this may no longer be the right answer.

First of all: what is the right of adaptation all about? 

As explained by leading UK copyright commentary Copinger and Skone James on Copyright, adaptation is usually understood as the transformation of a work into another form of expression that is not tantamount to a simple reproduction, eg making a film out of a novel, although “there is an unclear dividing line between what amounts to a reproduction of a work and what amounts to an adaptation of a work”. 

The problem lies indeed here.

At the international level, besides the right of reproduction within Article 9, Article 12 of the Berne Convention states that authors of literary or artistic works shall enjoy the exclusive right of authorising adaptations, arrangements and other alterations of their works. However, the systematic approach of the Berne Convention does not require Union countries to do the same. 

As a result, there have remained significant differences in national laws as to whether adaptations and other transformations are to be regarded as forms of reproductions (as is the case, for instance, in France and The Netherlands), or whether they are subject to a separate right (as is the case, for instance, in Italy, Germany and the UK).

As regards EU copyright, the InfoSoc Directive [which - among other things - intended to implement into the EU legal order the WIPO Copyright Treaty, which requires compliance with Articles 1-21 Berne] does not contain any reference to the right of adaptation, which has been instead expressly harmonised in relation to databases [Article 5(b) of Directive 96/9/EC] and computer programs [Article 4(1)(b) of Directive 2009/24/EC]. 

Therefore, the main question is whether Member States have retained their competence to define the right of adaptation in respect of literary and artistic works [these are the only works subject to Berne right of adaptation and, as such, are the only subject-matter for which possible EU constraints might subsist] other than databases and computer programs, as well as its related exception(s) and limitation(s). 

The part about exceptions and limitations is particularly topical. 

IPKat readers will remember the very interesting, imaginative and fascinating Modernising Copyright Report released in late 2013 by the Irish Review Committee [if you happen to be in London, do not miss next week's BLACA meeting starring one of the authors of the Report, ie Prof Eoin O'Dell].

This Report included innovative stances on copyright reform policy [this is something to welcome, as boldness and copyright policy have not been seen together very often in recent times], in particular as regards new exceptions and limitations that, while not expressly envisaged in the exhaustive list within Article 5 of the InfoSoc Directive, may be introduced at the level of individual Member States. 

Among other things, the Report recommended introducing an innovation exception [here] and also a fair use exception [here]. 

Speaking of fair use, one of the one of the Terms of Reference for the Review Committee was indeed to "[e]xamine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context."   

Seeking "to accommodate a range of apparently incompatible views", the Irish Report proposed "a possible draft of a tightly-drawn Irish [so not exactly US-style] fair use exception [according to the Report, this would be necessary to "enable context-sensitive accommodations to be developed as the occasion arises"]", that would be aimed at complementing existing exceptions. These should be exhausted before any claim of fair use could be considered, but also considered as examples of fair use so as to allow workable analogies to be developed.

According to the Report, "there is scope under EU law for member states to adopt a fair use doctrine as a matter of national law, and [the InfoSoc Directive] does not necessarily preclude it (not least because, in our view, [the InfoSoc Directive] has not harmonized the adaptation right [this is also the reason why the Report did not see any obstacles to the adoption of an innovation exception])."

Is this true?

How a Kat feels
when the Commission agrees

This Kat said 'Yes, but just in part' in a recent longer piece [which you can access and download here], and the Commission appears not to disagree [failed attempt to imitate typical British understatement].

At page 99 of its leaked draft IA, the Commission writes: 

"Contrary to the reproduction right and the communication to the public/making available right, there is no express rule with respect to adaptations in the InfoSoc Directive (unlike the Software and in the Database Directive). However, the broad manner in which the reproduction right in Article 2 of that Directive is formulated [yet not defined] and the CJEU's jurisprudence on the scope of the reproduction right notably in Infopaq and Eva-Marie Painer seem to cover adaptations which give rise to a further reproduction within the meaning of Article 2. The pending case Allposters [here; this Kat is confident in saying that this will be one of the most important recent copyright rulings] will shed further light on the scope of Article 2."

Here's George after a most engaging
3-hour discussion
on the adaptation right under EU law

From what the Commission said in its draft IA, it would seem that the room left for indipendent national initiatives - including the adoption of national fair use exceptions - is not that broad, and probably not as broad as submitted by the Irish Review Committee.

This is because any exceptions or limitations to the right of adaptation would have to comply not just with the three-step test [see the ACI Adam case for a recent CJEU application], but also be designed in a way that would not transform them into further – and, as such, forbidden – exceptions (in disguise) to other exclusive rights, notably the right of reproduction. 

This Kat believes that Member States are free to legislate in relation to exceptions or limitations to the right of adaptation, but these must be intended narrowly, ie as limited to what can be considered as pure adaptations, not transformative uses of a work that nonetheless also involve its simple reproduction.

For instance, while it is arguable that creating a play from a novel may fall exclusively 

within the scope of the right of adaptation, it may be more difficult to sustain that the same would happen in the case of an artist that – among other things – reproduced an artistic work in an altered form, eg by adding new elements, or changing the contrast and colour [as recent US fair use examples, see Cariou v Prince and Seltzer v Green Day].

So what is the answer to the initial question? Probably that adaptation has not been expressly and generally harmonised for subject-matter other than computer programs and databases. Nonetheless, Member States' freedom to legislate in respect of this right and related exceptions and limitations does not go as far as to cover activities that would fall within the (broad) scope of the right of reproduction.