I´m sure everybody heard of European Copyright Code (ECC) being published last week. Exceptional European intellectual property scholars participated at this work. Hence the ECC is neat, precise and inspiring altogether. I would like to focus on the Limitations part of it in this post. More specifically on the Article 5.5 "Further Limitations".
Any other use that is comparable to the uses enumerated in art. 5.1 to 5.4(1)is permitted provided that the corresponding requirements of the relevantlimitation are met and the use does not conflict with the normal exploitationof the work and does not unreasonably prejudice the legitimate interests ofthe author or rightholder, taking account of the legitimate interests of thirdparties.
 See note 48. Note that art. 5.5 does not allow new limitations by blending the criteria ofarticles 5.1 to 5.3. For the sake of clarity, limitations have been brought together under several categories. The categories do not however prejudice as to the question, what interests do, or should, in a particular case or even in general, underlie the limitation. In practice, this might be a mixture of several of the interests indicated. The weakness in a particular case of the interest under which the applicable limitation has been categorized does not prejudice as to the (non-) applicability of the limitation. However, the concrete examples enumerated under those categories do have a normative effect, since art. 5.5 extends the scope of the specifically enumerated limitations by permitting other uses that are similar to any of the uses enumerated, subject to the operation of the three-step test. In this way, Chapter 5 reflects a combination of a common law style open-ended system of limitations and a civil law style exhaustive enumeration. On the one hand, the extension to similar uses provides the system with a flexibility which is indispensable in view of the fact that it is impossible to foresee all the situations in which a limitation could be justified. On the other hand, the possibility of flexibility is narrowed down in two ways. Firstly, the extension applies to uses ‘similar’ to the ones expressly enumerated. Thus, a certain normative effect is bestowed on these examples; the courts can only permit uses not expressly enumerated insofar as a certain analogy can be established with uses that are mentioned by the Code. Secondly, such similar uses may not conflict with the normal exploitation of the work and not unreasonably prejudice the legitimate interests of the author or rightholder, taking account of the legitimate interests of third parties.
Huťko assumes that it is really useful to enact such explicit permission of analogy in case of copyright law limitations. On the other hand, in my humble opinion there is a room for such interpretation even today. Let´s have a quick glance at the Slovak and Czech private law.
Section 853 of Czech or Slovak Civil Code states, that ...
Civil legal relationships that are explicitly regulated neither by this nor by another act shall be governed by the provisions of this Act regulating relationships that are closest to them in point of their content and purpose.Copyright law is a part of the civil law and civil code applies as lex generalis to the copyright law. So why is there that huge reluctance to apply analogy within the copyright limitations ? Till Infopaq C-5/08 decision, I was pretty sure that there is no justification for narrow interpretation whether in Slovak or Czech copyright acts, Civil codes or our Supreme Courts rulings. Then Infopaq came up with these lines...
 It must be borne in mind that those conditions [of transient copy licence] are cumulative in the sense that non-compliance with any one of them will lead to the act of reproduction not being exempted pursuant to Article 5(1) of Directive 2001/29 from the reproduction right provided for in Article 2 of that directive. For the interpretation of each of those conditions in turn, it should be borne in mind that, according to settled case-law, the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly (Case C-476/01 Kapper  ECR I-5205, paragraph 72, and Case C‑36/05 Commission v Spain  ECR I‑10313, paragraph 31).
The lines i don´t really like. Legal argument that each exception should be interpreted narrowly is tricky one. Consider provision of article 2 (3) of Slovak Constitution (or art. 2(4) of Czech one).
Everyone may do what is not forbidden by a law and no one may be forced to do what the law does not enjoin.
Copyright law as such and author´s economic rights are exceptions to this rule, aren´t they? So why don´t we interpret narrowly the economic rights of author? Moreover this legal argument is not the only one and definitely should not be the principal one.
But let´s get back to the article 5.5 of ECC. The analogy is permitted provided that it meets conditions of the three step test (the material test). Isn´t that true now ?
Section 38 of Slovak Copyright Act states..
Limitations of economic rights of author shall be permitted only in special cases provided in provisions of Section 24 to 37; disposal with a work pursuant to said provisions may not conflict with normal exploitation of the work and may not unreasonably prejudice the legitimate interests of author.
Section 29 of Czech Copyright Act states..
Copyright may be restricted only in certain special cases provided for by this Act; these may not however be interpreted in a manner that would conflict with a normal exercise of copyright and would unreasonably prejudice the legitimate interests of the author.
Do this provisions exclude analogy within the copyright restrictions? I don´t think so. To the contrary, I assume that this provision (and also respective provision in the information society directive) aims to restrict the use of e.g. quotation licence, private use licence etc., but also any analogy. So the three step test is the material test of analogy as well (restricts analogy).
I might be wrong. Maybe i have overlooked something, but till then i keep dreaming about Slovak case that applies analogy in the copyright dispute involving limitations to economic rights. I am really curious about details of what happened in Germany this week. Supreme Court held that image search doesn´t infringe copyright by providing the user with it´s thumbnails. I don´t have to have the knowledge of German Copyright Act (as knowledge of information society directive give us a clue), to state that there is no such provision that would explicitly cover image search. The reasoning isn´t available yet, but i expect some analogy to be applied.
Due to consistency, I just wonder whether analogy as a legal argument is being applied in the same way in all member states. Legislating 5.5 principle on the European level could be rewarding for smaller member states that don´t have that much case law (if any), so the European highest´s and other member state´s case law would be directly applicable.
In the end, please refer to this study which unveils how much money the fair use industry generates for US economy [piles of dollars..].