The EU’s trouble with mashups: From disabling to enabling a digital art form

New tools for editing of digital images, music and films have opened up new possibilities to enable wider circles of society to engage in ’artistic’ activities of different qualities. User generated content (UGC), a term that already transmits a notion of amateur artists, has produced a plethora of new forms of artistic expression. One type of UGC are mashups, which are compositions that combine existing works (often) protected by copyright, and transform them into new original creations.
The European legislative framework has not yet reacted to the copyright problems provoked by mashups. Whereas the flexible US fair use doctrine has accommodated mashups rather easily, the strict corset of limitations and exceptions in Art 5 (2)-(3) of the InfoSoc Directive does not leave any, or only very lit-­‐ tle, room for this innovative and widely popular form of artistic expression for commercial or non-­commercial purposes. The paper analyzes the current Euro pean legal framework and identifies its insufficiencies with regard to enabling a legal mashup culture. By comparison with the US approach, an attempt is made to suggest solutions for the European legislator, based on the policy proposals of the EU Commission’s “Digital Agenda” and more recent policy documents (e.g. “On Content in the Digital Market”, “Licenses for Europe”). In this context a distinction is made between noncommercial mashup artists and the emerging commercial mashup scene.