Fair use in USA copyright v. EU Infosoc Directive closed list of exceptions and limitations

Anglo-American Copyright and Continental Copyright are two great systems that though having a common origin, with the evolution, mainly because of the French Revolution, became very different from one another. Anglo-American Copyright being considered positivist, and pragmatic, without a philosophical foundation, and Continental Copyright having a strong philosophical foundation, considered a natural right of the human being. Nevertheless, things are not so black and white because Copyright issues, namely in the Information Society are global and demand similar answers. Because of International Treaties, and EU Directives, the two systems are converging in many aspects. In this article we want to address a subject in which USA and EU still have different approaches, which is Fair Use v. the closed list of limitations and exceptions contained in Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, usually named InfoSoc Directive. There is much discussion about copyright wars, but regardless of our position defending closed list of exceptions and limitations, a general clause of Fair Use, or a mixed system, we must point out that InfoSoc Directive is total error, in the way the exceptions and limitations were legislated. There are very few exceptions and limitations regarding Information Society, there is no harmonization, there is also no certainty, and the technological protection measures and rights management information, which cannot be circumvented for free uses, further limit the interest of the Directive and create a disequilibrium harmful for users. The limits and exceptions are also subject to the three step rule, which, in interpreted in a strict sense, as the Directive seems to contemplate, is not adequate to the digital environment. The ultimate decision is of the courts, that don’t have the same interpretations of the exceptions and limitations, some times the interpretation goes to far, sometimes it is to narrow. It is true that in USA, with Fair Use, as in EU, with the closed list of limitations and exceptions, courts have the last word. But while in USA there is the precedent principle, that doesn’t happen in Continental Copyight. The problem in EU is that the InfoSoc. Directive is a total error, which creates much greater level of uncertainty. We can observe that certain court decisions that openly go against InfoSoc Directive. Because of this lack of security, and because of the way InfoSoc exceptions and limitations were ruled, we think that in the EU InfoSoc Directive should be revoked a solution closer to the fair use USA solution would be better. Europe could adopt a general clause like the Fair Use one, solution that we believe is the best, or establish an equilibrate interpretation of the three step rule, it could also allow analogy when the same interests meet and the situation is not in a list of limits and exceptions. It is important to approach the court decisions from the law, which will not happen if this issue is not properly addressed.