Relevance of EU Copyright Law to (Future) Non-EU Member States

This chapter discusses the impact of CJEU copyright case law on national copyright regimes, even beyond the wording of EU directives as transposed into national legal systems. To this end, it focuses on the UK and, following a discussion of what immediate changes the departure from the EU and the EEA (Brexit) would have (also with regard to issues of exhaustion), it explores to what extent case law of the Court of Justice of the European Union (CJEU) has changed UK copyright law. EU decisions have had an impact in areas such as: copyright subsistence, subject matter categorization, primary/accessory liability, standard of infringement, exceptions and limitations, and enforcement (with particular regard to website blocking jurisprudence). Overall, this chapter shows the legacy of CJEU case law, and how pervasive the impact of such case law is.

The Construction of Economic Rights in the InfoSoc Directive

Turning specifically to the discussion of economic rights, this chapter shows how the Court’s application of certain standards discussed in Chapter 2 has resulted in common approaches—and overall broad scope—of the economic rights harmonized by the InfoSoc Directive, these being the rights of reproduction, communication/making available to the public, and distribution. This chapter also contains a discussion of the de facto harmonization of the originality requirement at the EU level and the understanding of ‘work’ under the InfoSoc Directive. With regard to the right of distribution, its exhaustion—especially following the first lawful sale copies in digital format (digital exhaustion)—is also discussed.

Towards Less Flexibility

This chapter maps a trend that, with increasing clarity, has been emerging at the level of case law of the Court of Justice of the European Union: on the one hand, the harmonizing force of EU copyright law—especially as interpreted by the Court—is greater than what individual EU Member States’ practices have suggested; on the other hand, and as a result of this, the freedom left to the various national legislatures (and courts) in areas harmonized by EU legislation is more limited than what has been believed to be the case in the past. A discussion and application of the emerging doctrine of EU preemption is provided in relation to selected areas (economic rights and exceptions and limitations).

Introduction

Compared to other areas of intervention at the European Union (EU) level, copyright harmonization is a relatively recent phenomenon. Compared to other areas of intellectual property law, copyright harmonization has not been as complete as with other rights. Yet, two phenomena may be observed: one the one hand, copyright policy and legislative initiatives have intensified over the past few years; on the other hand, the large number of references to the Court of Justice of the European Union (CJEU) has substantially shaped the EU copyright framework and, with it, also the copyright framework of individual EU Member States....

CJEU Case Law and the Interplay with Policy and Legislative Action in the DSM

The final chapter tackles recent initiatives for a reform of the EU copyright acquis. In particular, it focuses on a number of selected areas in the proposed Directive on copyright in the Digital Single Market (DSM), which require to be considered in light, not just of existing legislation, but also—and perhaps most importantly—existing case law. These areas are: the ‘value gap’ (‘transfer of value’) proposal, the press publishers’ right, fair compensation for private copying, and licensing of out-of-commerce works. The chapter discusses whether and to what extent the EU copyright reform may be regarded as a ‘codification’ of existing CJEU case law, or rather as a departure from it. Either way, the centrality of judicial interpretation of existing legislation is apparent also in the context of policy discourse.

Enforcement of Copyright

This chapter considers enforcement, showing how the legislative framework alone has limited relevance. What has been key to the creation an EU enforcement framework has been—instead—the role of the Court, which is particularly visible in respect of injunctions against intermediaries, costs and damages, and certain private international law aspects (applicable law and, more significantly, jurisdiction). The analysis focuses, first, on CJEU case law in relation to Article 8(3) of the InfoSoc Directive, and extracts a number of key standards for intermediary injunctions (including blocking and filtering, and general monitoring obligations) under EU law. Then, attention shifts to the technical aspects of copyright enforcement initiatives, notably costs and damages. Finally, the chapter considers online copyright infringement cases, with a special emphasis on determination of applicable law and jurisdictions in cases with an international dimension. Again, reliance on certain of the standards discussed in Chapter 2 has been decisive in shaping the resulting framework.

The Construction of Exceptions and Limitations in the InfoSoc Directive

The analysis moves on to consider exceptions and limitations under the InfoSoc Directive. In particular, attention focuses on three areas—parody, quotation, and private copying—which serve to outline how the application of certain key standards, notably (1) the one according to which concepts in EU directives that make no reference to the laws of individual EU Member States should be intended as autonomous concepts of EU law that must be given uniform application throughout the EU, (2) strict interpretation of exceptions and limitations, but also (3) effectiveness of exceptions and limitations and (4) achieving a fair balance in the protection of contrasting rights, have allowed the creation of an EU system of exceptions and limitations. In this sense, the role of the Court has been pivotal in strengthening, at least in part, the admittedly weak harmonizing force of the InfoSoc Directive. This chapter also discusses the nature and function of the three-step test as found in Article 5(5) of that directive.

Standards Applied in Relevant Copyright Rulings

This chapter discusses the nature and content of eleven key standards that the Court has consistently employed in its copyright case law. They are: high level of protection, autonomous concepts of EU law, effectiveness, proportionality, fair balance of different rights and interests, interpretation in light of international instruments, interpretation in light of wording and context of provisions, interpretation in light of objectives pursued by legislation at issue, interpretation in light of fundamental rights as granted by the Charter of Fundamental Rights of the European Union, preventive nature of economic rights, and strict interpretation of exceptions and limitations. This chapter also conducts a statistical analysis of the selected rulings, to identify relationships between these standards (considered in pairs), both in general and with particular regard to selected areas (economic rights, exceptions and limitations, and enforcement). The goal is to facilitate the understanding of how different standards interact with each other.

Summary and Conclusion—Copyright and the CJEU: Role, Action, Legacy

The role of the CJEU in shaping the EU copyright framework has been of paramount importance. Further to a fragmentary approach to copyright harmonization and a resulting legislative framework whose provisions have proved to be rather inscrutable or altogether challenging to interpret, also in light of the issues arising out of technological advancement and new modalities of exploitation and infringement of copyright works and other protected subject matter, national courts have increasingly relied on the instrument of references for a preliminary ruling. As of today, in the context of the relatively brief history of EU copyright and within a timeframe of less than twenty years, the CJEU has issued several key preliminary rulings....

EU Copyright Harmonization and CJEU Role and Action

Following an overview of legislative harmonization, this chapter discusses the composition, role, and functioning of the Court of Justice of the European Union (CJEU) before providing some numbers regarding activity in the copyright field. It presents data on: the composition of the Court (Judges-Rapporteur and Advocates General (AGs)), the relationship between the Court and its Judges-Rapporteur, areas in which national courts have made referrals, data on EU Member States from which the relevant referrals have been made, and interventions of individual Member States. Employment of statistical analysis has allowed consideration of a number of questions, including whether the Court tends to agree (it does) with the (non-binding) Opinion of the AG appointed in a certain case more or less often when the interpretation provided of certain copyright provision is expansive or not, and whether the background of the AG (academic or non-academic) has had any relevance from a statistical standpoint (it has not).