Two Constitutional Cultures, Technological Enforcement and User Creativity: The Impending Collapse of the EU Copyright Regime?

In Pelham, the Court of Justice of the European Union and the German Federal Constitutional Court reached diametrically opposing conclusions on the relevance of freedom of art in copyright law. The different stances permit a speculative prediction – they can have immediate consequences for the predictable challenges against the new platform liability regime, and its associated dangers of widespread filtering and blocking. The article discusses the numerous constitutional implications, with specific attention given to the respective interests affected by the new regime (authors, exploiters, users, platforms) in light of the divergent approaches from the perspective of what appears to be two rather conflicting constitutional cultures: specific perceptions of fundamental rights and proportionality under German law versus an approach tending to emphasise market integration under the EU legal order. Recent assertions by the German Federal Constitutional Court redistributing the division of competences between national and EU law permit the prediction of a disturbing future collision course between the two systems, with potentially massive implications for EU copyright law by and large.

Multilevel Constitutionalism and the Propertisation of EU Copyright

This chapter examines the common mantra in contemporary scholarship that the constitutionalisation of copyright as property right has contributed to the reinforcement of its protection vis-à-vis other interests and rights, with distortive consequences on the already fragile copyright balance. In the EU, this fear has been reinforced by the language of Art 17(2) CFREU (‘intellectual property shall be protected’). However, the chapter argues that a more careful analysis proves this narrative wrong and simplistic because it ignores elements which could open the door to different interpretative results, where the classification of copyright under the umbrella of constitutional property may, instead, create internal limits to authors' exclusive rights and lead to their functionalisation to alternative goals chosen for the copyright system. It demonstrates how the property model stemming from the combination of common constitutional traditions and EU sources is not absolute, but carries the imprint of the social function doctrine, which limits property rights from inside their structure. The chapter then contends that a correct constitutional propertisation of EU copyright law would not tilt the balance between copyright and other fundamental rights, and that between copyright and the EU social and cultural policies but, rather, would but preserve and guide such balancing exercises.

Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?

This article queries whether and to what extent works produced with the aid of AI systems – AI-assisted output – are protected under EU copyright standards. We carry out a doctrinal legal analysis to scrutinise the concepts of “work”, “originality” and “creative freedom”, as well as the notion of authorship, as set forth in the EU copyright acquis and developed in the case-law of the Court of Justice. On this basis, we develop a four-step test to assess whether AI-assisted output qualifies as an original work of authorship under EU law, and how the existing rules on authorship may apply. Our conclusion is that current EU copyright rules are generally suitable and sufficiently flexible to deal with the challenges posed by AI-assisted output.

Machine Learning Models Under the Copyright Microscope: Is EU Copyright Fit for Purpose?

This paper is based on a presentation given in December 2019 at the Lund’s University conference ‘Artificial Intelligence (AI), Data Protection and Intellectual Property in a European context’. The purpose of this article is to analyse the suitability of the copyright system over Machine Learning (ML) models, the so-called ‘core components’ of ML systems. Computer programs protection has always caused certain difficulties for intellectual property law. Internationally, agreement was reached in the 1970s to protect computer programs as literary works of copyright. ML models have been called ‘learning algorithms’, ‘AI computer programs’, and ‘software 2.0’. Yet there is no unanimity about what they are technically. This is relevant from a copyright perspective, because the regime of protection granted by copyright will be different depending on whether the ML model qualifies as a computer program, as a mathematical method, or as another type of work. Additionally, all proprietary and open source software licensing relies on copyright protection. In most open licenses, the license is not triggered if it is applied to something that is not protected by copyright (or related rights). Thus, it seems pertinent to question whether EU copyright law provides adequate protection for the core components of machine learning systems, the ML models.

The Many Metamorphoses of Related Rights in EU Copyright Law: Unintended Consequences or Inevitable Developments?

Neighboring rights have always been neglected by copyright scholars, despite a steady increase of their economic relevance and market role across the decades. The situation has changed in the past two decades when, in response to the epochal shifts to which such rights have been subject, commentators have transferred their focus to the legislative and judicial evolution of neighboring rights. These changes, in fact, have had a substantial impact on the texture of EU copyright law and of the common core of EU Member States’ laws, which may – or may not – represent the beginning of a new era for the relationship between copyright and related rights. To understand the drivers and purpose of the various legislative reforms and the CJEU’s responses in the field, and the challenges they have posed to the consistency and internal balance of the EU copyright system, it is essential to analyze their roots and key features. To this end, this article will offer a brief overview of the legislative path that led from the Rome Convention to the debate preceding the Directive on Copyright in the Digital Single Market (CDSMD), with a focus on the introduction of sui generis rights and ancillary copyright (Section II). It will then comment on the nature and features of the new press publishers’ right under Art. 15 CDSMD, focusing on its strengths and pitfalls (Section III). The statutory analysis will be coupled with a comment on the four ‘waves’ of the CJEU’s judicial practice (Section IV), leading to a brief assessment and conclusions on the way forward (Section V).