Criticism in Serbian copyright law

Most national copyright laws permit the use of quotes from copyrighted work for the purpose of criticism. This limitation on copyright protection was introduced more than a century ago through the courts’ practice (U.S.) or statutes (United Kingdom). Today, the copyright laws of France, Italy, the Netherlands, Spain, Croatia, Russia, Israel, Brazil, Japan, and many other countries, as well as the Directive 2001/29/EC, say that, other conditions being met, the consent of the copyright holder is not required for the use of quotations for purposes such as criticism or review.

Serbia is one of the exceptions, in Europe at least, in that the relevant provision in the copyright law does not list criticism, polemics, review/analysis, teaching, and/or research, as purposes justifying the use of quotes as a limitation on copyright. Instead, the Serbian 2009 Copyright Act, as amended in 2011, refers to “illustration, verification, or reference” as the purposes justifying the use of a quotation. Article 49 of the law permits

reproduction and other forms of public communication of short extracts of a work of authorship (the right of quotation), or of short works of authorship, provided that

(1) the work has been published;

(2) the relevant parts, i.e. short works, are integrated into another work without alterations if required for the purposeof illustration, verification, or reference, with a clear indication that a quotation is involved and in accordance with fair practice; and,

(3) the name of the author, the title of the work, and the time and place of the first publication are indicated in a suitable place, if that information is known.

Illustration, verification and reference do not seem to belong to the same category as the exonerating purposes stated in other copyright laws. Society considers criticism, polemics, review/analysis, teaching, and research as desirable activities, and these are therefore considered in themselves purposes for using a quotation. Illustration, verification, and reference, in contrast, are instruments helping the achievement of these – or other – purposes. The Serbian law does not convey which ultimate purposes legitimize the use of quotes. In this regard, the Serbian Copyright Act resembles the German Urheberrechtsgesetz (the 2008 law on copyright and related rights).

Another feature which makes the provision on quotation in the Serbian copyright legislation atypical is its requirement that the extracts should be “short”. Among the copyright laws of the countries referred to in the preceding paragraphs, only the French Code de la propriété intellectuelle restrictsuse by requiring that quotes from the original work should be short. Other laws, as a rule, state that the extent of quotations should be “justified by the purpose”. Directive 2001/29/EC also uses this flexible benchmark.

How significant is it, then, that Article 49 the Serbian Copyright Act contains a rather unique combination of the requirement of brevity of a quote, on the one hand, and the absence of expressly enumerated purposes, on the other?Given the dearth of the jurisprudence and legal writing on the matter, there is no clear answer to this question. The discussion below points at risks inherent in Article 49 as it is currently worded.

It could be argued that Article 49 of the Serbian Copyright Act does not really hamper the fulfillment of criticism’s useful role.When, in compliance with Article 49, the author of a secondary work uses quotes from a copyrighted work to “illustrate”, “verify”, or “refer to”, the ultimate purpose may well be to criticize the original work or its author’s views. In a rare Serbian court case on this point, in which the director of the State-owned Television, Aleksandar Tijanić sued the Serbian nongovernmental organization Lawyers Committee for Human Rights (JUKOM) for breach of copyright, two appellate instances left intact the trial court’s finding that JUKOM quoted from Tijanić’s writings in order to criticize him and to show that Tijanić should not occupy the influential public position. The courts found nothing impermissible in that purpose.

Even with regard to the explicit requirement in Article 49 that the quotes should be “short”, it could be argued that it does not doom criticism to the point of ineffectiveness. The copyright statute that was in force in Serbia before 1998 set the limit of the length of a quote to one-fourth of the original work; the subsequent removal of that provision from the law has been taken to mean that one-fourth is not a cap. Accordingly, post 1998, there is no fixed cap, in the meaning of a specific number or ratio. Presumably then, more than one-fourth of the original work can be taken in the secondary work, so long as it is done in accordance with fair practice.

However, the welcome removal of a cap on quotation does not mean that the risk of criticism’s ineffectiveness due to the law’s constraints is not a serious one. The Copyright Act’s requirement of brevity of quotation does not sell a reassuring message to those who believe that criticism should be highly valued as a purpose justifying quotation from someone else’s work.

In one of the most illuminating writings on criticism as a fair use defense – the opinion of the U.S. Court of Appeals for the 7th Circuit in Chicago Board of Education v. Substance, Inc., 354 F.3d 624 (2003) – Judge Posner first emphasized that copyright law should enable the critic “to make his criticisms intelligible”, i.e. “comprehensible”, but then ventured to say that the reason judges must not police criticism with a heavy hand is that critics should be able to criticize the copyrighted work “effectively”. To make oneself intelligible and to be effective is not necessarily the same thing: the latter may require a more liberal (hefty) use of quotation.

The problem with the Serbian Copyright Act is that, even if it does not preclude the use of quotes for the purpose of intelligible/effective criticism, it does not assist it either. If Article 49 expressly invoked criticism as a defense to the charge of copyright infringement, it would conceivably enhance the significance of criticism in the eyes of judges. It would also serve as an incentive to the potential creators of secondary works to use quotes without fearing the Act’s chilling effect. Article 49, however, does not promote criticism as a useful human activity in the way Judge Posner and most national legislations do.

Consider, by way of a comparison, the Copyright Act (2003) of neighboring Croatia. Article 90 of the law is a standard statutory provision on quotation:

It shall be permitted to make quotations of excerpts from a copyright work, which has already been lawfully made available to the public for purposes of scientific research, teaching, criticism, polemics, revision, review to the extent justified by the purpose to be achieved and in accordance with fair practice, provided that the source and the name of the author are indicated

The provision expressly refers to criticism and other permissible purposes, and it does not require the quotes to be short. Instead, quotations may be made “to the extent justified by the purpose to be achieved”.

The requirement in the Serbian Copyright Act, that the extracts should be short, dilutes the importance of criticism and over-emphasizes the importance of the original work. The Act’s message about the importance of the purpose behind a quotation would be different if the statute used the phrase “to the extent justified by the purpose to be achieved”, instead of using the word “short”. Even though the Act does not set the specific upper limit – one-quarter, or other – for the use of quotes, the very presence of the word “short” induces judges to police criticism with a heavy hand (to quote Judge Posner).

A better approach would be for the Serbian law and jurisprudence to focus on a different issue: whether the use of extracts competes with economic utilization, actual or potential, of the original work. The rationale behind the protection of copyright is the encouragement of creativity. The assessment of permissibility of a quotation should depend on whether the use of extracts undermines this role of copyright. If that is not the case, there is no reason of principle to insist that the quotes from the copyrighted work must be short – even to the detriment of the effectiveness of criticism.

In several landmark cases in the United Kingdom the courts have stated that the most important factor to consider is assessing whether the dealing with a copyright work is fair is whether it is in fact commercially competing with, and attempting to profit from, another’s work (Associated Newspapers Group v. News Group Newspapers [1986] RPC 515, 518 (Chancery); Time Warner v. Channel Four, [1994] EMLR 1, 14 (Court of Appeal); Ashdown v. Telegraph Group LTD, [2001] EWCA Civ 1142, para. 70 (Court of Appeal); Fraser-Woodward v. BBC, [2005] EWHC 472 (Chancery), paras. 59-63). In the United States, courts have also attached great significance to the motive behind the secondary use of an original work. A secondary work may have commercial aspects, but they need not outweigh the critical, polemical, educational, etc., ones. The courts have been unlikely to find fair use if the secondary use of an original work was intended to substitutethe original, i.e. to fill a market niche that the original work would develop (see, e.g., Castle Rock Entertainment v. Carol Publishing Group, 150 F.3d 132 (2nd Cir., 1998)). In a similar vein, but in an Italian context, Professors Musso and Fabiani find “most notable” the aspect of the Legislative Decree no. 68 (2003), Article 70 (1), which posits the requirement of non-competition between a work using quotes and the original work.

The Serbian law could be interpreted to cover this ground, at least in part, with the inclusion of the terms “in accordance with fair practice” in Article 49. But it is far from certain that the courts would interpret the “fairness” as pertaining to the motive behind the quotation and to the effect on the holder’s exploitation of the copyright work. The continued presence of the requirement of brevity is an invitation to the judges to forego the policy analysis and to focus on quantitative criteria which, in truth, should be of secondary importance.