Remix Allowed -Avenues for copyright reform inspired by Canada

Following our first paper discussing the maze of restrictive copyright rules that could apply to transformative uses of existing works, this paper discusses what is the most promising approach for reforming the European copyright regime to introduce more flexibility for transformative users. We will consider two reform proposals, both inspired by Canadian law: first, the introduction of a specific exception for user generated content, and second, a more ambitious transition to a semi-open “fair dealing” exception, striking a much better balance between flexibility and legal certainty than the current EU copyright regime. We will eventually argue in favor of this second proposal, which provides the additional advantage of not requiring a legislative reform but being achievable by the CJEU, if only it was willing to follow the footsteps of the Supreme Court of Canada in its ambitious new case law following the landmark CCH Canadian decision.


INTRODUCTION
In our previous paper (Remix prohibited: How rigid EU copyright laws inhibit creativity) 1 , we argued that in many respects, copyright law in the EU is overly restrictive, in particular regarding the possibilities of transformative reuses of protected works. To substantiate our claim, we provided a detailed overview of the numerous legal issues facing creators of derivative works under EU law as well as French and Belgian national laws. The combination of the broad interpretation of the various exclusive rights and doctrines as well as the strict interpretation of exception or limitations leave few breathing space for transformative uses, and therefore constitute an important hindrance to creativity.
One might hope that this excessive rigidity will be partially addressed by the increasing role of the fundamental rights paradigm in copyright law. Indeed, these last few years the two higher European courts have increasingly invoked fundamental rights, and freedom of expression in particular, as external limits to copyright law 2 . While this fundamental rights paradigm certainly acts as a useful corrective for the imbalances of copyright law, it is clearly insufficient. First, because it lacks legal certainty for aspiring transformative users. From their standpoint, the prospect of being granted protection under freedom of speech is highly uncertain, especially since the courts have yet to develop a coherent case law on the limits that fundamental rights impose on copyright law. Second, it is only a marginal solution, since the Courts will probably curtail the cases where free speech trumps copyright law to those where a particularly important speech interest is at stake. But there are many conceivable reuses practices that would not easily fit in the freedom of expression "trump" on copyright (e.g. because they do not constitute political speech, worthy of a higher level of protection) but that a reasonable copyright regime has no good reason to prohibit: these include subversive or playful cultural practices such as Appropriation Art, collage, remix, mashups, etc., that have become increasingly accessible and popular with the advent of digital technologies. Therefore, this external corrective brought by the fundamental rights paradigm should not exempt us of finding a structural solutions to improve the internal balance of copyright law. It is thus appropriate to consider what are the avenues of reform for limitations or exceptions to copyright law.
In this respect, two proposals have mainly been discussed in the European literature. The first, considered for some time by the European Commission, is the introduction of an exception for User Generated Content 3 . The second, advocated by certain European copyright scholars, is the introduction of an open norm for exceptions and limitations, similar to the US Fair Use exception 4 . Lots of inked have been spilled on both of these approaches, but we want to consider them in light of the recent developments in Canadian copyright law. This new perspective might prove particularly interesting for European lawyers, since it comes from a mixed system of civil and common law, which weakens the common objection that an open norm is too alien to EU civil law systems for such a "transplant" to work.
For each of our proposals, we will assess both their desirability and their degree of conformity with positive law (and thus the level of difficulty in implementing them).
Our first proposal is to extend the current closed list of exceptions that we have in EU law, either by enlarging existing ones, or by adding a new exception to the list, modeled on the new Canadian exception for non-commercial User Generated Content introduced in 2012.
Our second, more ambitious proposal attempts to draw a middle- Admittedly, none of these proposals constitute a panacea. In particular, none of these proposals addresses one of the problem we discuss in our earlier paper, which is the significant barrier to transformative uses resulting from the strong moral rights doctrines in some national laws such as Belgian and French law 6 . This issue would require extensive developments that clearly exceeds the scope of this article. However, a potential mitigating factor to this hurdle is the observation that strong findings of moral rights often involve commercial uses, broadly defined 7 . Therefore, as far as noncommercial transformative uses are concerned, the proposals that we put forward will probably not be substantially hindered by such strong moral rights regimes.

a. Extending the closed list of exceptions: quotation, parody, and the Canadian UGC exception
The first approach that we consider aims to introduce more flexibility for transformative uses inside the current EU framework for exceptions or limitations. At the national level, this goal can only be pursued by attempting to implement and interpret to their fullest extent the purposes of exception provided by the InfoSoc directive 8 ; at the EU level, however, more robust solutions are of course available, such as the introduction of a new exception altogether in a revision of the directive.  i. An extensive implementation of the quotation and parody exception?
National law. -In 2013, the "Lescure report" commissioned by the French Government 9 , called for securing and encouraging new practices of digital transformative creation, and suggested a number of ways to do so at the national level. Noting that the French implementation of the quotation exception is far more restrictive than what the directive allows 10 , the report suggests relying on the flexibility allowed by article 5.3(d) (providing that quotations shall be made "for purposes such as criticism or review" 11 ) to include another specific purpose in the French quotation exception for "creative or transformative purposes". In order to comply with the three-step test, the report adds, it might be preferable to limit that new purpose of the quotation exception to "non-commercial" uses 12 .
Such a solution is astute, but requires quite a stretch from the ordinary meaning of the words used by the exception. A quotation, in the ordinary meaning of the term, is an exact excerpt of an original work. Introducing apparent contradiction in terms such as a notion of "creative or transformative quotation" does not seem like a good legislative practice.
However, in order to substantially increase the flexibility of French law with regard to the reuse of (excerpts of) existing works, the national legislator could of course remove the additional restrictions in the French implementation of the quotation exception compared to EU law (such as the requirement that the quotation be "short"), or reverse the judicial interpretation that restricts the quotation exception to literary works (apparently excluding sounds 13 and 9 P. Lescure, Mission "Acte II de l'exception culturelle" -Contribution aux politiques culturelles à l'ère numérique, pictures 14 ).
With regard to transformative uses, the parody exception appears as a more acceptable umbrella, as the notion of parody clearly denotes a transformative use. However, the wording of the parody exception in the directive is somewhat less flexible than the quotation exception, as the former does not contains the terms "such as" ("for purposes such as criticism or review")15. While the recent CJEU decision in the Deckmyn case considerably relaxed the application of the parody exception, by dismissing a number of restrictive conditions imposed by national courts, and including the finding of parody in the freedom of expression framework, it also constrained its application by determining a number of essential characteristics of parody, including that it must "constitute an expression of humour or mockery"16. Granted, national courts will enjoy a certain margin in determining what constitute an expression of humour or mockery. But seeing that courts have often used this humour criterion to dismiss findings of parody, it is likely that the parody exception post-Deckmyn will continue to be of little use in many cases of "serious" transformative uses 17 . Moreover, in the current state of the law, the strict interpretation doctrine will probably stand in the way of an extensive interpretation of the parody exception 18 .
14 Some European courts have already allowed the use of thumbnails by search engines, but on quite obscure grounds, absent sufficient flexibility in national law. However this strict interpretation doctrine is not unchallengeable, as we will see below when discussing the new developments of the Canadian fair dealing exception: cf. infra, b).
ii. Introducing a specific exception to cover User Generated Content?
Proposals at the EU level. -At the EU level, a more straightforward approach to introduce more flexibility for transformative uses would consist of introducing a new exception in article 5 of the InfoSoc directive 19 . In the context of emergent creative practices in the digital environment, the idea of introducing an exception for "user created content" has been around at least since 2008, when it was suggested by Green Paper by the European Commission on "Copyright in the Knowledge Economy" 20 . Drawing conclusions from the subsequent public consultation, the Commission decided not to decide at this point. It however maintained its intent "to further investigate the specific needs of non-professionals that rely on protected works to create their own works" 21 . After that, the Barroso Commission has mainly focused on promoting voluntary stakeholder dialogue with its "Licenses for Europe" initiative 22 , with rather underwhelming results 23 . Since then, the new Juncker Commission has promised to deliver an overhaul of the InfoSoc directive, but as of today there has been scant details concerning the content of such reform, notably with regards to exceptions or limitations on copyright. Recently, a draft report for the European Parliament prepared by rapporteur Julia Reda initially featured a few ambitious proposals such as the introduction of an "open norm introducing flexibility in the interpretation of exceptions and limitations" 24 exception or a broadening of the interpretation of the parody exception. However, after having been met with a strong resistance from other MEPs, the final version of the report was considerably watered down 25 . Indeed, the "Ten pledges to bring more content online" on which the participants agreed consist of rather weak commitments (stakeholders "will continue to work towards", "continue promoting", "find solutions to", …) on rather marginal issues, as far as user generated content is concerned. The Canadian UGC exception. -The Commission's investigations on its awaited copyright reform could probably be nourished by an analysis of the implementation of the new Canadian exception for "non-commercial user generated content" (hereafter "UGC exception"), introduced by the Canadian Copyright Modernization Act of 2012. The text of the Canadian UGC exception is quite long 26 . Essentially, the exception provides that it is not an infringement of copyright for an individual "to use an existing work (...) in the creation of a new work", and to disseminate it (or to authorize an intermediary to disseminate), provided that four conditions are met : (a) it is made for non-commercial purposes (b) proper attribution is given, "if it is reasonable in the circumstances to do so" (c) the original work can be reasonably taken to come from a lawful source (d) the use respects a condition of "non substantial adverse effect" on the "exploitation or potential exploitation" of the work, which recalls the third condition of the three-step test provided by international copyright law.
The conditions of the Canadian UGC exception. -Here is not the place for a detailed discussion of this interesting but somewhat puzzling provision 27 . We will limit ourselves to a few comments. Broadly speaking, the text of the exception seems mainly concerned with guaranteeing certain legitimate interests of the right-holders: first, the moral interest that proper recognition is given to the creator/performer, and second, the economic interest that the copyright holder still has an opportunity to enjoy the proper level of reward he could legitimately expect and that incentivized him to create the work 28 . Indeed, this is a fundamental concern in copyright law, one that the Canadian Supreme Court acknowledged in the Gervais, "User-Generated Content and Music File-Sharing" in M. Geist (ed), From "radical extremism" to "balanced copyright": Canadian copyright and the digital agenda, Toronto: Irwin Law, p. 447. 28 Indeed, copyright law does not entitle to a guaranteed reward for creators, but merely an opportunity to be rewarded by the successful exploitation of one's work. For simplicity purposes, we will refer to this interest as the interest of the author "to have a legitimate opportunity for reward".
Théberge case 29 . Arguably, this can also be considered as capturing the core concern of the three-step test 30 .
The moral interest is explicitly guaranteed by condition b) of the UGC exception, to the extent that "it is reasonable to do so" 31 .
But to ensure the protection of the economic interest, the Canadian legislator has followed a more tortuous way, combining two different approaches, which causes some redundancy. Indeed, to guarantee the protection this economic interest, we can conceive two approaches: a result-oriented criterion, or a process-oriented criterion.
The first approach, including a result-oriented criterion, implies providing for a direct legal requirement that the economic interest of the author or rightholder be respected. This is the approach adopted by the second step of the three-step test, requiring that the use "does not conflict with a normal exploitation of the work" 32 . Such phrasing directly requires that the use does not harm the interest of the author to have the opportunity to enjoy the level of reward that copyright law enables. The Canadian exception provides such result-oriented criterion, with the requirement that the use does not have "substantial adverse effect" on the "exploitation or potential exploitation" of the work. This condition however falls prey to the same objections than the second step of the three-step test, which has been harshly criticized as unclear and potentially over-reaching 33 . 29 Cf. Supreme Court of Canada, "Théberge v. Galerie d'Art du Petit Champlain inc.", 2002, 2 S.C.R. 336 : "The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated)" Admittedly, this level of requirement appears weaker than the requirement provided by the European quotation exception in art. 5, d), of the InfoSoc directive : "unless this turns out to be impossible, the source, including the author's name, is indicated" (our emphasis) ; Compare with the Canadian wording of art. 29.21 (1) b) : " the source -and, if given in the source, the name of the author, performer, maker or broadcaster -of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so" (our emphasis Another conceivable approach is to use proxies, i.e. indirect, processoriented criteria. Such an approach does not directly focus on the desired result, which is that the interest of the author to enjoy an opportunity for a proper reward be respected. Instead, it uses a range of substitute criteria, which guarantees that in effect, that interest will almost always be respected. In a sense, this is what most traditional European exceptions do, by spelling out a set of conditions for the authorized use of the work, approximating for the desired result. The Canadian UGC exception also exhibits certain process-oriented criteria, notably the requirement that the authorized use is made for "non-commercial purposes". The Canadian legislator did not feel the need to provide a definition of such "non-commercial purposes" 34 , even though the notion is central to other parts of the Bill 35 . Tentative definitions have been proposed elsewhere: the Lescure Report defines non-commercial use as uses "whose dissemination does not provide any direct or indirect revenue to their authors"; Creative Commons' popular "NC" license defines it as "not primarily intended for or directed towards commercial advantage or monetary compensation" 36 . Admittedly, we The preparatory works also lacks any comprehensive definition. At most, one can find a few illustrations, such as Canadian Industry Minister Paradis : "It will also be legal to integrate protected works into a work generated by a user for non-commercial purposes. That would include recording a home video of a child dancing to a song, or creating original mixes of songs and videos" (referring to the "dancing baby" case Lenz v. Notably the interesting reform of Canadian statutory damages, limited to a maximum of $5,000 "if the infringements are for non-commercial purposes" (rather than the $20,000 maximum for "commercial" infringement). Cf. Canadian Copyright Act, art. 38.1 (1). 36 http://creativecommons.org/licenses/by-nc/4.0/legalcode See also the discussion by the Copyright Office of the meaning of "noncommercial" in the context of an exemptions of anti-circumventions provisions (where the Copyright Office recognizes that the category might includes certain works created "pursuant to a paid commission", but dismisses the distinction between "primarily noncommercial" and "noncommercial"). Copyright Office, Library of Congress, "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies", Federal Register, Vol. 77, No. 208, October 26, 2012, available on: http://www.copyright.gov/1201/ are still far from a unanimous agreement on the meaning of "noncommercial", and interpreting that notion will probably be quite challenging. But it does not seem by any means impossible. Indeed, most copyright regimes already rely on similar criteria, such as the assessment of the "commercial nature" of the use in the fair use doctrine37, or the requirement made by certain national courts that a use is not primarily driven by commercial purpose in order to be covered by the parody exception 38 .
But the problem with the Canadian UGC exception is that it tries to follow both approaches at the same time. Not only does it resort to two indirect, process-oriented proxies: first, the condition that the use can only be made by an individual (which limits the potential reach of the derivative works) and second, the requirement of a noncommercial purpose (which limits the risk of an effect on the author's market); but it also resort to a direct, result-oriented criterion, which is the "substantial adverse effect" condition, that largely overlaps with the two aforementioned proxies. While the advantage of combining both types of criteria is unclear, it undoubtedly has the disadvantage of damaging the exception's clarity and flexibility.
Moreover, as already mentioned, another issue with the "no substantial adverse effect" condition is that it closely resembles to the second step of the three-step test, but in an even stronger language, apparently inspired by the (in)famous WTO panel report 39 . Indeed, art. 29.21 d) of the Canadian Copyright Act provides the condition that: "(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter -or copy of it -or on an existing or potential market for it, including that the new work or 37 Cf. the first factor listed in the fair use exception : "The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes". Admittedly, the interpretation of this criterion is no less controversial in American law, some authors the blame on the Supreme Court's inconsistent opinions in cases like Sony or Harper v? Row for enhancing that ambiguity. cf. W. Fisher, "Reconstructing the Fair Use Doctrine", Harvard Law Review, 1988, p. 1673.
other subject-matter is not a substitute for the existing one" 40 As with the second step of the three-step test, it is questionable whether the law should protect any commercial exploitation that the copyright holder could cover, or rather what the copyright holder should cover. If copyright law is not an absolute property right but rather a right justified by the need to incentivize creation, we should only protect the copyright holder against uses that would substantially impair the incentive to create new works, and not any potential market that it could develop 41 .
In any case, while it is already questionable whether compliance with the three-step test requires implementing it in national law itself 42 , it appears clearly overzealous for the Canadian legislator to use its most stringent interpretation as a template, especially when it is strongly disputed by a wide range of copyright scholars 43 . It might also prove self-defeating to adopt such an overly-stringent approach in an exception that aims to introduce more flexibility in copyright law.
Compatibility with international law. -With or without the redundant "no substantial adverse effect" condition, it seems the Canadian UGC exception would satisfy the three-step test, even in the stringent interpretation advocated by the WTO panel.
First, it constitutes almost certainly a "special case", a requirement interpreted (in an overtly stringent manner, in our opinion) as "clearly defined" and "narrow in its scope and reach" 44 : arguably, user generated content is as clearly defined and narrowly limited as the parody exception, or only slightly larger. The expression "user generated content" 45 does not encompass a general case for any transformative uses but usually refers to specific genres, such as remix, mash-ups 46 , memes 47 , or machinima 48 , just as the parody exception, refers to the (not so clearly defined) sub-genres of "caricature, parody or pastiche" 49 .
Second, the indirect conditions that a) the user be an individual and b) the use be made for non-commercial purposes seems sufficient to satisfy the economic dimensions embodied by the second and threestep of the test (no conflict with the normal exploitation of the work, and no unreasonable prejudice to the legitimate interests of the author/right holder). Whether the requirement of attribution is sufficient, or even necessary, to comply with the three-step test 50 , depends on the (rather confusing) issue of the strength of the moral interests covered by the three-step test 51 . In any case, the Canadian The Oxford Dictonnary defines a meme as "An element of a culture or system of behaviour passed from one individual to another by imitation or other non-genetic means" (cf. http://www.oxforddictionaries.com/definition/english/meme). These "meme" practices are often realized in the form of pictures or videos, which constitutes variations on a common theme, and can itself constitute a remix, a mashup, or an original work (when it does not borrow existing expressions but merely imitates them). 48 Reynolds defines Machinima as "an art form broadly defined as the creation of films within video games" ; G. Reynolds, "All the Game's UGC exception seems to constitute no more a violation of the stringent interpretation of the three-step test than the parody exception. And if the UGC exception satisfies the stringent interpretation of the three-step test, then a fortiori it will satisfy a more balanced interpretation of the test 52 .
Desirability. -Having considered the compatibility of such an exception with international law, what can we say about its desirability? Does it provide enough breathing space for transformative use practices? It would certainly be a welcome addition, allowing for some emergent digital practices that are gaining social acceptance. Moreover, to the extent that they are noncommercial, these practices seems hardly objectionable from the author's point of view, at least with regards to his economic interests.
However, it has been argued that the far-reaching anti-circumvention rules introduced in the 2012 reform constituted a major blow to the effectiveness of the new UGC exception 53 . For any exception to be effective, it is clear that anti-circumvention rules should provide for sufficient exemptions, allowing the user to circumvent technical protection measures for the purpose of benefiting from the exceptions to copyright 54 .
Moreover, it is unclear whether the exception applies to other, more "traditional" types of transformative uses, such as Appropriation Art in the context of visual arts 55 . When these uses are part of a professional artistic practice, the determination of their (non-)commercial character can be quite thorny. Would a conceptual art 52 Cf. supra note 32, for such proposal of a more balanced interpretations of the three-step test.  These types of transformative uses would probably be more appropriately covered by an exception that displayed a greater flexibility toward commercial use, such as the parody exception. But as we have seen, this solution is not without its own problems 60 . To cover a broader range of transformative uses, we probably need to consider a more ambitious approach, which questions the principles underlying the European model of a closed-list of exceptions.  copyrighted work").
The most remarkable feature of a fair use exception, which distinguishes it from European-style exceptions as well as traditional fair use exception, is that the list of authorized purposes is open. The wording of the American fair use exception makes clear that the enumerated list of purposes is illustrative, not comprehensive: "the fair use of a copyrighted work (…) for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research". This is why fair use is often described as an "open" exception. The first move was to declare fair dealing as a user's right: "the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defense. Any act falling within the fair dealing exception will not be an infringement of copyright. the Court added that "Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation" 80 . Furthermore, proceeding to the application of this reasoning to the circumstances of the case, the Court noted that the word "research" in the fair dealing exception "must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained" 81 .
The reasoning of the Court is quite straightforward: if copyright exceptions are not mere defenses, but constitute legitimate user's rights, their interpretation should not be anymore restrictive than the copyright owner's prerogative. They must even be given a "large and liberal interpretation", to preserve user's rights.
Until recently, it wasn't clear whether CCH would prove a radical shift in the Canadian Supreme Court's case law, or a mere anomaly. But this new interpretation of fair dealing has been clearly reasserted by the Court in a series of landmark decisions from 2012 on copyright law (which some have dubbed "the copyright pentalogy" 82 ). Although some have tried to argue that under this new reading, Canadian fair dealing "appears to be inching closer to fair use" 83 , it is still significantly different from an open exception: the list of purposes provided by Canadian law is still considered exhaustive. However, while the list remains exhaustive, its constraints have been clearly relaxed by the "large and liberal interpretation" supported by the Canadian Supreme Court. Thus although a particular use must still be connected to one of the purposes enumerated by the fair dealing exception (eight, as of today), these enumerated purposes are not restrictive boundaries but rather flexible templates, that could be applied to other related or analogous cases. The new Canadian fair dealing post-CCH can therefore be described as a "semi-open" exception. will focus on the purpose of the dealing (subject to the Court's "large interpretation" doctrine), it should be noted that this is only the first of the six factors that the Court examines to assess the fairness of the dealing 84 .

How a semi-open fair dealing increases flexibility. -
In CCH, the Court relied on its "large and liberal interpretation" of the purpose of "research" provided by the fair dealing exception, to conclude that the Law Society of Upper Canada did not breach copyright by maintaining self-service copiers available to its members, nor by providing them with a service of copy-on-demand 85 : "Although the retrieval and photocopying of legal works are not research in and of themselves, they are necessary conditions of research and thus part of the research process. (...) Put simply, its custom photocopy service helps to ensure that legal professionals in Ontario can access the materials necessary to conduct the research required to carry on the practice of law".
In SOCAN v. Bell 86 , the Court considered that the practice of offering short previews to consumers of online music services was to be considered a fair dealing for the purpose of "research" 87 , as "consumers used the previews for the purpose of conducting research to identify which music to purchase" 88 . The Canadian Copyright Board is "an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collectiveadministration society". Cf. Copyright Board of Canada, "Our mandate", cf. http://www.cbcda.gc.ca/about-apropos/mandate-mandat-e.html amount to private study but "instruction"). The Court criticized the Copyright Board's distinction by considering it drove "an artificial wedge" into the unified purpose of "research/private" study in the school context91, and added : "the word "private" in "private study" should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers' instruction from the students' studying." 92 On the basis of that large interpretation of the purpose of "private studying", the court therefore overturned the Copyright Board decision.
Admittedly, in all of these cases, the Supreme Court's application of the fair dealing exception tends to rely heavily on the expression "research or private study". Let us note however that before the 2012 copyright reform (introducing the purposes of "education, parody or satire"), the available purposes in the fair dealing exception were rather scarce, as the law only allowed fair dealing for purposes of "research or private study", "criticism or review", and "news reporting" (the two latter purposes having only been introduced in 1997). It is therefore not surprising that the Court used the legal ground available to it. Of course, in the hypothesis of a transposition of such a semi-open exception regime in EU law, with up to 21 possible exceptions available for interpretation, such an over-emphasis on one particular purpose appears implausible.
We However, this consideration by the court seems misguided 94 . It would certainly undermine legal certainty if the courts did not address whether any specific exceptions applies before considering a large interpretation of the fair dealing purposes. Therefore a clear limit of such semi-open exception should be that the courts should only resort to large interpretation of the fair dealing exception if the use at stake is not covered by another, specific exception 95 . This is the approach taken by the Irish Copyright Review Committee in its report advocating for a fair use provision, recommending that "existing exceptions be regarded as examples of fair use" and "that they must be exhausted before analysis reaches the question of fair use" 96 Similar proposals. -It is interesting that this semi-open exception exhibited by the Canadian approach shares many similarities with a number of legislative proposals made over the years by European scholars. For example, the "Wittem Code" proposal 97 , contains a similar mechanism, aiming at combining the advantages of a common law style open-ended system and a civil law style exhaustive enumeration 98 . This semi-open clause allows for "Any other use that is comparable" to the uses enumerated in the text, provided that it complies with the conditions of the exception as well as with the three step test 99 .
According to its authors, this provision reflects "a combination of a common law style open-ended system of limitations and a civil law style exhaustive enumeration" 100 . It also features a reversal of the three-step test as an instrument of flexibility, as some have advocated 101 .

94
However, for an interpretation of that statement as underlying a hierarchy of exceptions in Canadian law, see D. A similar proposal has also been made by Martin Senftleben, who suggested to rewrite the beginning of article 5.5 of the InfoSoc directive (that provides the EU version of the three-step test) to allow for "certain special cases comparable to those reflected by the limitations provided for in paragraphs 1,2, 3 and 4" of article 5 102 However, many of these legislative proposals rely on the assumption that a such a semi-open exception system requires a legislative reform. But as we shall see, an important lesson from the Canadian approach is that this need not be the case.
ii. Transposing the Canadian approach in EU law An interesting feature with the Canadian approach is that transposing it in EU law would require only a minimal number of steps, all of which could be taken by the CJEU, if it was willing to re-examine some of its long held assumptions. This is what the Canadian Supreme Court did, proceeding in two moves: first, by characterizing the exceptions and limitations as user's rights, and second, by rejecting the restrictive interpretation doctrine.

The first move: a protected status for exceptions and limitations
If we wanted to transpose the Canadian approach in EU law, the first move would be to recognize a protected status for exceptions and limitations. The exact status of exceptions and limitations under EU law as well as under French or Belgian copyright law, has always been rather unclear. For a major part of the doctrine, their status is quite precarious: exceptions and limitations are often considered as mere legal forbearances, or at most as an affirmative defense 103 . While others defend the idea that exceptions and limitations should be Arguments for a protected status for exceptions and limitations. -There are at least two arguments to support that limitations and exceptions should be awarded a protected status, rather than being treated as mere forbearances upon which exclusive rights always take precedence.
The first argument stems from the relationship between copyright and fundamental rights. If the function of exceptions and limitations is to strike a balance between copyright and fundamental rights, then it is hard to see how they could have an inferior status. If they stem from the duty of states to protect, promote and implement fundamental rights, then surely exceptions and limitations should enjoy a certain level of protection. Admittedly, this argument would only hold for those exceptions and limitations that do have a basis in fundamental rights, which could be only a subset of existing exceptions and limitations, depending on their interpretation 106 .
The second argument follows the reasoning of the Supreme Court of Canada in its CCH ruling 107 . Indeed, the Court draws a strong link between the necessity of a "proper balance between the rights of a copyright owner and users' interests" and the recognition of In Belgium, the question remains open, since in the only case that touches on this question, the Court of Appeal is concerned by another, specific question (whether the private copying exception can itself be defined as an "author's right" -to which the answer was, unsurprisingly, no), but does not address the issue of whether it can be defined as a user's right. Cour d'appel de Bruxelles (9 th ch.), September 9, 2005, For an elaboration of that argument, see E. Wéry, "La copie privée au centre de toutes les attentions : la cour d'appel et le Parlement se penchent sur la question", Droit & Technologies, available on: http://www.droit.be/actuality-904/doc/commission_consultative_copie_privee.pdf. 106 For such a limitative view on which exception appear to derive from fundamental rights, see for example T. Léonard, "Mulholland Drive chute sur l'épine du droit subjectif", Revue du Droit des Technologies de l'Information, 29/2007, p. 356 exceptions as users' rights. This relies on the Court statement in the Théberge case 108 that the Copyright Act was "a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator" 109 .
A gap between legal traditions? -Certain European scholars might object that this reasoning relies (at least partially) on an instrumental justification specific to an Anglo-American tradition, and fundamentally at odds with the purely "natural rights" justification of a continental European tradition. However, the alleged gap between these two traditions is often exaggerated. At their origins, both traditions result from a compromise between natural law and instrumental rationales, between the private and public interest. Ginsburg suggests that this private versus public interest tension was resolved by the French legislator "by casting copyright as an aid to the advancement of public instruction" 110 . The "personalist doctrines" usually invoked as the foundations of French or Belgian copyright law emerged much later, at the end of the 19th century 111 .
Broadly speaking, not only has the opposition between these two tradition been overestimated 112 , but today they are largely converging under the pressure from international and European harmonization. This observation also applies to the justifications for copyright law, which sees the erosion of the influence of the "personalist" justification, and the rising influence of the instrumental justification 113 . Moreover, today even in countries like Belgium and France the idea that the legal system is driven by a purely authorcentric view, is increasingly giving way to a framing in terms of a "fair balance" between rights and interests between users and right-holders, Cf. also the restatement in Supreme Court of Canada, "CCH Canadian Ltd", op. cit., para 23 : "As mentioned, in Théberge, supra, this Court stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator" as provided by the recital 31 of the InfoSoc directive 114 , or stressing "the need to maintain a balance between the rights of authors and the larger public interest" as the WIPO Copyright Treaty preamble puts it 115 .
Therefore, if we admit that copyright law must strike a balance between protection and limitations, between the interest of rightholders and the interest of users (a conclusion that even the Lockean natural law justification must concede, as some have argued 116 ), then this balance cannot be precluded by assigning an inferior status to the user's claims. WIPO Copyright Treaty, adopted in Geneva, December 20, 1996. Cf. also article 7 of the TRIPS treaty, adopted in Marrakesh, 15 april 1994, that provides : "The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations." 116 Cf. W. Gordon, "A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property", Yale Law Journal, 1993, p. 1535: "Natural rights theory, however, is necessarily concerned with the rights of the public as well as with the rights of those whose labors create intellectual products"; and p. 1539: "the very arguments that proponents of intellectual property use to defend more extensive owner control (...) fairly understood, (...) lead instead to limited property rights for individual proprietors-and to significant property rights for the public".

The second move: exceptions and limitations should not be interpreted restrictively
Challenging the strict interpretation doctrine. -This conclusion that author's and user's right have an equal status has an important implication, embodied in the Court's second and final move towards a semi-open exception: since exceptions and limitations must be considered as user's rights, "[b]oth owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation" 119 , and exceptions "must not be interpreted restrictively" 120 . If we admit, following the Canadian Supreme Court, that the purpose of copyright is to strike a fair balance between authors' rights and users' rights, we must therefore reject the strict interpretation doctrine.
The CJEU's justification of the strict interpretation doctrine. -In EU law, the strict interpretation doctrine has been notoriously endorsed by the CJEU in its Infopaq I decision 121 . The Court invokes two arguments to support the idea that exceptions and limitations must be interpreted strictly: the first argument relies on a formal principle of interpretation; the second is based on the threestep test.
Exceptio est strictissimae interpretationis. -The first argument relies on the premise 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". According to the Court, this principle is applicable to the exception at stake (article 5(1), exception for transient or incidental copy of a work), because it is "a derogation from the general principle established by that directive, namely the requirement of authorization from the rightholder for any reproduction of a protected work" 122 .
The strict interpretation doctrine for limitations and exceptions is well-known in many copyright law regimes. deriving from a more general principle in EU law 123 , which could be considered a variant of the Roman law maxim exceptio est strictissimae interpretationis 124 . However, in the legal literature, this interpretation principle is increasingly disputed, as some argue that legal methodology does not generally prescribe that exceptions be interpreted strictly merely because of their status as exceptions 125 . A more radical critique would point out that such a principle of interpretation reflects the tendency to privilege syntax over the meaning and purpose of the law which is a major shortcoming of legal formalism, that will often lead to contradictions 126 .
In our opinion, this issue is not a mere question of formalistic interpretative niceties, but a matter of normative choice: between exclusive rights and exceptions and limitations, which of the two (if any) must bear the burden of strict judicial interpretation in case of lack of clarity?
Traditionally, the answer to this question has been that the legislator, by introducing author's rights has decided that the interpretation must favor the author, not the users.
But if exceptions or limitations are not mere forbearances or loopholes in the law, but are actually embedding a concern for fundamental rights in copyright law, or if exceptions or limitations actually result from the necessary balance between the public and the private interests, it seems unlikely that they should be restricted. Indeed, it appears that exceptions and limitations are a rather central part of the definition of the general principle of copyright law: they define the scope of the exclusive rights of the author, and of the correlative rights of the public. If copyright law is defined by a balance of 123 interest, shouldn't we abandon the idea of deciding ex ante which interest will prevail ? 127 Another possible answer stems from the reasoning of the ECHR in its recent Ashby Donald v. France decision, where the Court considers that copyright law can itself be an exception to freedom of expression. This parallels the traditional holding by doctrine and jurisprudence that copyright law is an exception to a more general principle of freedom, an "island of property in an ocean of liberty" 128 . Framed in that way, the issue of the strict interpretation doctrine would lead to surprising conclusions. Indeed, if copyright is the exception and freedom to use works the rule, shouldn't strict interpretation apply to the former rather than the latter ?
The strict interpretation doctrine is required by the three step test. -The second justification advanced by the CJEU for the strict interpretation doctrine takes the form of an a fortiori argument: "This is all the more so given that the exemption must be interpreted in the light of Article 5(5) of Directive 2001/29, under which that exemption is to be applied only in certain special cases (...)" 129 . The inference is that since the exceptions and limitations must respect the three-step test, then a fortiori they must be interpreted strictly.
This argument is highly questionable. First, it relies once again on the most stringent interpretation possible of positive law. It assumes a restrictive interpretation of the three-step test, where "special cases" is taken in a quantitative interpretation, as "clearly defined" and "narrow in its scope and reach"130, and not in a qualitative 127 interpretation advocated by some 131 , according to whom it should be understood as "justified by some clear reason of public policy or some other exceptional circumstance" 132 . Moreover, it condones a reading where article 5(5) also binds the judge, and not only the legislator.
Although the peculiar wording of the test in the EU directive gives some weight to that interpretation, it is not clear whether such a departure from the standard three-step test in copyright treaties was intended by the EU legislator absent any explicit mention in preparatory works of the directive 133 . Moreover, member-states are divided on that issue: while certain member-states, including France, have included it in their national legislation, it has been rejected by a number of EU member-states, including Belgium, which have decided that only the national legislator shall be bound by the test of article 5(5) 134 .
Moreover, even if we admitted this particularly strict reading of article 5(5), it would still not follow that the (alleged) application of the three-step test by the judge requires a strict interpretation of the exception at stake. Admittedly, an overly broad interpretation, that extends the scope of a well defined exception to a larger set of cases, might contradict the strict requirement of a special case that is "narrow in scope and in reach" (e.g. extending the private copying exception to allow any type of copying). But even if the three-step test would prohibit such an overly broad interpretation, it does not follow that it requires a strict interpretation. Indeed, the three-step test does not itself address which interpretation technique should be used, but rather focuses on the result of the interpretation of exceptions: is it such that does not cover certain special cases, or that it would conflict with the normal exploitation of the work, etc. Therefore, strictly speaking, the strict interpretation doctrine is not even required by the most stringent interpretation of the three-step test.
Subsequent CJEU case law. -Fortunately, the Court itself seems to be backing off from the radical position put out in Infopaq I. In two ulterior cases, although formally reasserting its strict interpretation doctrine, the CJEU has invoked the requirement of a "fair balance" between the right and interests of right-holders and those of users provided by recital 31 to relax considerably the interpretation of the exceptions at stake. In Premier League, the CJEU stated that it resulted from recital 31 that the interpretation of the exception "must enable the effectiveness of the exception (...) to be safeguarded and permit observance of the exception's purpose", calling in effect for a teleological interpretation of the exceptions 135 .
In Painer, the Court supplemented the resort to recital 31 with the reinforcement of the right to freedom of expression, stating that the quotation "intended to strike a fair balance between the right to freedom of expression of users of a work or other protected subjectmatter and the reproduction right conferred on authors" 136 . It further decided that the balance was struck, in that case, "by favouring the exercise of the users' right to freedom of expression over the interest of the author in being able to prevent the reproduction of extracts from his work" 137  Along the same lines, see notably E. Rosati, "Just a laughing matter? Why the decision in Deckmyn is broader than parody", Common Market Law Review, 52 (2015), p. 522-523, noting that "the Deckmyn decision might have also signalled the start of somehow a different, more liberal, approach towards exceptions and limitations on the side of the CJEU" which "appears to mark a departure from earlier, narrower, interpretations of Article 5 exceptions and limitations".
hand the Court, unwilling to appear to retract from its ruling in Infopaq I, reasserts the principle that exceptions must be interpreted strictly. On the other hand, it uses overarching principles, such as the "fair balance" requirement or the right to freedom of expression, to neutralize that strict interpretation doctrine, and relax the interpretation of the exception at hand. While the Court seems formally committed to the orthodoxy of the strict interpretation doctrine, it is in fact alternatively invoking it and neutralizing it, depending on the cases. It is as if the Court realized that the strict interpretation doctrine, applied as a general rule of interpretation, was imposing an unreasonable straitjacket on the exceptions and limitations to copyright law. One might argue that the Court should stop its ambivalent attitude towards the strict interpretation doctrine, and finally recognize it as both unjustified and untenable.
Considering this complicated but still maturing jurisprudence, it is by no means excluded that the CJEU ends up adopting a more flexible framework of exceptions. In so doing, it could walk in the footsteps of the Canadian Supreme Court. In fact the first move in that direction, is only in continuity with the CJEU's requirement of striking a fair balance between the rights and interests of users and copyrightholders: from there, it would not be a stretch to recognize a protected status to exceptions and limitations (possibly as user's rights) by acknowledging their function as protecting fundamental rights. And then the Court could easily make the second move and reject the strict interpretation doctrine, and affirm, as the Canadian Supreme Court did, that a fair balance of interests implies taking users' rights seriously, which requires, if not "a large and liberal interpretation", at least an interpretation broad enough to allow for interpretation by analogy of the cases of exception provided by the directive.
To be clear, the point is by no means a prediction that the Court will inevitably follow that course. Rather, we simply argue that the current state of EU positive law is not as unequivocally determinate as is generally assumed, and actually gives the Court more than enough leeway to introduce more flexibility in EU copyright law.
Would such course of action constitute a case of illegitimate judicial activism on the part of the CJEU? We think not. Legislation itself does not specifically require that the exceptions or limitations should have a subordinate status, nor that they should be interpreted strictly: these are all (mostly) the result of the courts' doings. And what the courts have done, they could also undo. Moreover, with the prevalence of such open-ended principles as the proportionality test or the balancing of rights and interests of users and right-holders, the CJEU is entirely in position to contribute in the definition of the equilibrium that a reasonable copyright system should strike.
Of course, such evolution could also be implemented by the EU lawmakers. They could for example decide to amend article 5 of the directive, by taking inspiration from the legislative proposals mentioned above 140 . A legislative action would also allow a (much needed) comprehensive overhaul and rationalization of the disparate existing categories of exceptions, in order to provide more legal certainty for users and to increase the practicability of the exception framework (with or without an open exception). It is not impossible that the momentum created by the adoption of open or fair use provisions in other countries will at some point generate the impulse for such a legislative initiative. However, until now the EU legislators have generally displayed a lack of interest and willingness to initiate a substantial revision of the EU exceptions framework, let alone to consider introducing an open exception. Besides, has others have noted, copyright lawmaking at the EU level is a very slow process, with the length of the legislative cycle possibly exceeding ten years 141 .

CONCLUSION
European copyright law is mostly inhospitable to transformative uses, as a review of positive law at the EU level and in national jurisdictions easily demonstrates. In our previous paper 142 , we saw the multitude of broadly defined exclusive rights constitutes a tremendous hurdles for creators of transformative works, as they can most of the time be found to infringe at least some of them. We also saw that the EU framework of limitatively enumerated and strictly interpreted exceptions and limitations was way too narrow to compensate for the far-reach of exclusive rights. 140 Cf. supra, text accompanying notes 94 to 99. The issue of transformative uses has largely been a neglected issue in copyright law. Not only does it appear that the spaces for many emerging practices are lacking, but even the more traditional practices of quotation or parodies are often excessively difficult to exercise without incurring legal hazards. This critical situation cannot be left unchanged. Imposing all the burden of legal uncertainty on authors of transformative works and confining them in a legal grey area hardly seems like a satisfying solution.
A semi-open exception appears the most promising way forward for EU copyright law. Admittedly, it does not go all the way towards an American-style fair use exception.
A semi-open exception would still be constrained by the template cases provided by law: the judge could only apply the exception to cases analogous to those provided by law, not entirely new ones. This allows for a reasonable division of labor between the judge and the legislator in adapting the law to the technological evolution and emergent social and cultural practices. It also allows for a compromise between the legal certainty of a closed system of exception and the flexibility of an open exception, a solution that might be more appealing for European lawyers. If such a compromise is indeed possible, then it could no longer be argued that introducing more flexibility in the EU exception framework would be fundamentally incompatible with European copyright traditions.
After the harmonization process initiated by the InfoSoc directive, European copyright law is only a decade old. Too young to rust, it has no good excuse to ignore the pleas for more flexibility and legal certainty for transformative users. In an era of legitimacy crisis, it is particularly crucial for copyright law to prove that it can evolve, and accommodate the evolution of social and cultural practices regarding intellectual creation.