Elgar Commentaries series
Edited by Irini A. Stamatoudi and Paul Torremans
Chapter 21: TOWARDS A EUROPEAN COPYRIGHT LAW: FOUR ISSUES TO CONSIDER
The Europeanisation of copyright law follows various paths. Secondary EU copyright law, embedded in the ten Directives devoted to copyright issues, has indeed contributed to the approximation of national copyright laws. But the Europeanisation of copyright has recently taken another route: since the seminal Infopaq I decision of the Court of Justice of the EU (CJEU or the Court), the Court (and Advocate Generals) of Luxembourg regularly deliver decisions (and opinions) which rule on major copyright issues, such as the notions of work and originality, the scope of the rights and the limits of exceptions. Those decisions (and opinions) not only make the law, they also indicate the direction that copyright reform should take in the future - if the EU continues to legislate in the field of copyright. To describe the far-reaching impact of the CJEU case law, some scholars have coined the terms 'harmonisation by stealth' or 'filling the gaps'. It is clear that a court-made harmonisation of European copyright is under way.The CJEU is likely to offer a sufficiently coherent interpretation regarding the substantive conditions of protection, the scope of the rights belonging to copyright and the copyright exceptions. These constitute some of the main building blocks of copyright. The Court might also inject the dose of flexibility needed for a balanced system of copyright that keeps up with the digital developments.
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