Those who try to promote such a provision wrongly imply that the fair use system is not in accordance with (the correct interpretation of) the three-step test and suggest that the international norms be adapted to allow fair use also where it is allegedly in conflict with the (correct interpretation of the) test. There is no well-founded reason to allege that a well-established fair use or fair dealing/fair practice system would not be in accordance with the three-step test. The introduction of fair use (or fair dealing) in a country without relevant legal tradition and well-established case law may create conflicts with the three-step test. Such a provision would create a triple danger: (i) This kind of provision – according to which fair dealing/fair practice and fair use systems may be used to implement the exceptions foreseen in the would-be instrument/treaty – has never been necessary for the applicability of these systems where they are based on appropriate tradition and duly developed case law; at the same time, it would create a potential danger since it might suggest that now such systems may and should be introduced also in countries without such tradition and case law and, as a result, it could lead to conflicts with the international norms, in particular those on the three-step test. (ii)This potential danger would be aggravated and made more probable by the fact that those who insist on the inclusion of such a provision do so on the basis of the badly founded theory that a fair use or fair dealing/fair practice system would offer “more flexibility” and would make more and broader exceptions possible than what is allowed under the three-step test. (iii) Such a provision with the danger of undermining the adequate balance of interests guaranteed by the three-step test might have an impact on the application of other exceptions too; first, it might be presented as a standard for any new norm-setting activity in WIPO; and, second, it might be claimed that the “new interpretation” reflected in the proposed provision could and should serve also for the interpretation and application of any other exceptions allowed by the existing international norms.

The paper is based on the author’s keynote power-point presentation made in September 2013 at the ALAI Congress held in Cartagena, Colombia. First, it reviews the international norms that are relevant from the viewpoint of exhaustion of rights. Then, it discusses how the Kirstaeng decision of the U.S. Supreme Court – partly, but not consistently, based on its earlier Quality King decision – got in conflict with the Copyright Act and government policy of the U.S., and what kinds of legal-political consequences it may have. After this, the paper analyzes the reasons for which the preliminary ruling of the Court of Justice of the European Union (CJEU) in the UsedSoft case consisted in no less than de facto modification of the acquis communautaire (to which the Court’s competence does extend). The CJEU introduced “online exhaustion” of the right of distribution (but also of the right of reproduction) which is not allowed under the WIPO Copyright Treaty, the Information Society Directive – and equally not allowed under the Computer Programs Directive (into which the CJEU tried to include lex specialis elements that, in reality, are not part thereof in order to support the legal construction on which its ruling was based). Finally, the paper presents the key aspects of the ReDigi order adopted by the District Court of the Southern District of New York which rightly found that there is no such thing as “digital exhaustion.” The paper is closed by considerations on the possible role of the three-step test with respect to exhaustion as limitation of rights.

The Hungarian Copyright Association has responded in detail to all the 80 questions of the consultation document. The response to the last - 80th - question may also be used as a brief summary of the responses: "There is a fundamentally important matter. The system of adequate protection and enforcement of copyright has been eroded recently as a result of successful lobbying of certain special interests groups (ever more powerful IT industries, online intermediaries, entertainment equipment and material manufactures, etc.) and by neo-anarchist movements supported and aggressively promoted by them. There is a need for a serious reconsideration of the EU’s copyright policy in close connection with its cultural policy, with the objective of re-establishing an appropriate balance of interests seriously disrupted to the detriment of creators and producers of cultural goods and services. This Questionnaire seems to be better balanced than certain previous documents issued by the Commission but it still reflects a trend to prefer considerations trying to justify the weakening of copyright protection. We believe that this approach should be changed; this is not only a cultural interest of the EU, but also its weighty economic and social interest."

Although there were some suggestions to include a general exception for user-generated content (UGC) in Hong Kong's Copyright (Amendment) Bill 2014, this idea has been rejected. The Bill only contains new provisions on exceptions where it is truly needed for the freedom of expression of UGC creators; for parodies and quotations. This short article presents seven reasons for which the drafters have chosen that right solution that may guarantee harmony with the relavant international norms.

[This is a slightly corrected version of the article originally uploaded on 2014-05-05 without any real substantial change. Thus, the summary description below has not been modified either.] It is a widespread opinion that the CJEU’s Svensson judgment „has saved the Internet” (because it has maintained the possibility of using hyperlinks). The judgment might also offer chances for rightholders to exploit their works and objects of related rights in the online environment, since it has clarified that the use of “clickable links” qualifies as an act of making available to the public. Unfortunately, those chances are limited because the fundamental problem of the CJEU’s “established case law” on the right of communication to the public and the right of making available to the public – namely, that it is based on the „new public” and „specific technical means” theories – has not been eliminated. The “new public” theory – as outlined in the Court’s SGAE ruling – is in conflict with the international treaties and the EU directives. The theory was adopted because the CJEU – recognizing WIPO publications as a reliable source to clarify the concept of communication to the public – relied exclusively on an old 1978 WIPO Guide to the Berne Convention (and misinterpreted it) rather than (i) on the text of the relevant norms and of their “preparatory work”; (ii) on the thorough analysis made in authoritative copyright treatises; (iii) on the interpretation adopted by a series of competent WIPO committees of governmental experts; and (iv) on the new 2003 WIPO Guide reflecting that interpretation (refuting the “new public” theory). In the TVCatchup judgment, the Court tried to correct the “new public” theory by introducing the “specific technical means” theory (according to which the right of communication to the public applies where there is no new public but the communication is made by such new – different – means); but this theory is not in accordance with the international and EU norms either. In the Del Corso ruling, the CJEU got into an even more obvious conflict with these norms by subjecting the application of the right of communication to the public to the criterion of profit-making purposes. In Svensson, the Court made a further correction in the combined “new public” and “specific technical means” theories by ruling that the right of making available to the public through hyperlinks (clickable links) apply also where rightsholders restrict access and the restriction is circumvented. The chances of rightholders to use licensing methods facilitating due exploitation of their works and objects of related rights depend on how broadly the concepts of “restriction” and “circumvention” are interpreted. However, the criterion of “restriction of access” may also be regarded as a sort of formality to be fulfilled for obtaining protection of the right of making available. It would be desirable to establish an adequate balance by saving both the Internet and copyright on bases other than the legally defective concepts of “new public”, “specific technical means” and “restriction of access”. Alternatives might be the introduction of a new exception or limitation or the application of a duly developed and finely tuned implied licensing doctrine. Since the adoption of the “new public” theory was due to the fact that the CJEU had not been appropriately informed on the truly decisive sources of interpretation of the concepts and rights of communication to the public and making available the public, the chain of controversial judgments on these concepts and rights is a further proof that the preliminary ruling system requires revision and correction.