Report: Quotation under Copyright Law and the textual paradigm-CREATe Lecture by Professor Lionel Bently

Reported by Selin Sancak (LLM Student in the Intellectual Property & The Digital Economy Programme at the University of Glasgow)

On the 12th of February 2020, CREATe and the University of Glasgow had the honour to welcome Professor Lionel Bently from the University of Cambridge for a greatly informative public lecture about ‘Copyright and Quotation’.

Prof. Bently is the Editor-in-Chief of the Cambridge Law Journal and part of many other associations concerning Intellectual Property and Copyright Law.

As the title highlights, the main subject in Prof. Bently’s lecture was about the Right of Quotation within Copyright Law with a view of the Textual Paradigm.

Prof. Benlty questioned the decisions of several CJEU Cases, such as Pelham and Spiegel Online, stating that the usage of the Textual Paradigm would be inappropriate as part of the quotation right.

Firstly, he illustrated the meaning of the right of quotation in accordance with the EU Information Society Directive, 2001/29/EC, Art 5(3)(d). In the light of the ‘harmonisation of certain aspects of copyright and related rights in the information society’ Article 5 of the Directive is specifying the Exceptions and Limitations in Copyright. Concerning the mentioned reproduction right in section 2 and 3, quotations are considered as exceptions if they are used for purposes such as criticism or review.

In addition to this exception, the Copyright, Designs and Patents Act from 1988 states that the Copyright is not infringed by the use of a quotation of a work, if it was been made available to the public and the use of the quotation is in accordance with fair dealing.

Professor Bently refers to the Textual Paradigm which the Courts are following in determining a ‘typical’ quotation. Therefore, a quotation is recognized as a short passage being reproduced from a longer text, where the passage is unaltered and presented distinct. Moreover, the quote should sustain a further argument which can be either supportive or critical.

In order to illustrate the meaning of the Textual Paradigm, Prof. Bently refers to two German cases, which interpret the theory as followed: The quotation must be used for the purposes of illustrating an assertion, having the intention of entering into a ‘dialogue’ with that work. CJEU, Pelham, [71]

Correspondingly, in Spiegel there must be a direct and close link between the quotation and the work it was cited in. The quotation must be unaltered as well as distinguishable, and the usage must be in relation to the assertions of that user.

According to Prof. Bently, the Textual Paradigm is inappropriate and unnecessary, since many other sources provide a different definition of the meaning of a quotation. He sees the Judgements as not consistent with other approaches of the European Intellectual Property Law. This can be seen in the case Nintendo v BigBen, where a quotation is permitted in order to explain or demonstrate that the use of the citation corresponds with the work it is used in.

In the light of this different understanding of a quotation, Prof. Bently mentions the ordinary meaning by referring to the Oxford English Dictionary on Historical Principles, where quotation is described as a passage or a remark, which was taken from one piece of work into another. To undermine the definition, he associates it with two architectural examples.

The firm AT&T sits in the skyscraper in 550 Madison Avenue New York, which has a remarkable resemblance with the well-known Chippendale furniture. They stated on their own Internet Website that using the same characteristics of Chippendale is a playful deployment of historical quotation. Regarding James Stirling’s ‘quotational tendency’, he was known for developing a reputation for his buildings which had the form of pre-existing ones. One of them has so many quotations that it was called ‘Das Zitatenmuseum’ by a German newspaper, by which means ‘The Citationmuseum’

Anyhow, the Textual Paradigm was not even required by the Berne Convention of Literary and Artistic Works, as Article 10 states that ‘it shall be permissible to make quotations’ and it is not limited to any specific works. Respectively, any further limitations concerning quotations were rejected by the Rome Revision 1928. The requirement of dialogue was in fact denied at the Revision of Berne 1967 with 27 votes to 10.

In conclusion, Prof. Bently describes the Textual Paradigm as needless and misplaced, since the ordinary meaning of quotations already appears as ‘re-use of identifiable material’ within another work. Coupled with Article 10 of the Berne Convention the only necessary limitation is the fair use of these quotations, which is also mentioned in the CDPA, explaining that copyright in a work is not infringed by the use of a quotation if the use is within fair dealing.

What has been surely stayed on our minds is the global mandatory fair use of quotations, since all the countries must follow the Berne Convention that urges the use of quotations just with the limitation of fair practise.

Professor Lionel Bently illustrated a key issue that has been not perceived by the CJEU yet, even though the limitations are interfering with the economic and moral rights of authors but may now be part of discussion.

CREATe and the University of Glasgow are treasuring this very interesting and educational lecture of Professor Lionel Bently and thanking for his arrival and work.

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