The interface between the EU copyright law and the fundamental economic freedoms of trade and competition in the digital single market: from the FAPL case to the decision in UsedSoft
The advent of the digital world has reshaped copyright law concepts, such as those regarding public performance, reproduction and distribution. To calibrate the indeterminate status of those concepts and protect the interests of authors in digital marketplaces, the EU, in conformity with the World Copyright Treaty, introduced the new exclusive right of communication to the public of a work. The broad right in question covers every form of digital dissemination, including reproduction, distribution and display of works. However, concerns arise when comparing this stronger copyright protection with the enforcement of the EU economic freedoms of trade and competition into online markets. It is argued that the shift to a digital marketplace has revealed the inadequacy of the doctrine of the exhaustion of the distribution right and that stronger copyright protection could determine the creation for competitors of legal barriers to access digital marketplaces and provide information-related services. Such effects are incompatible with the digital single market objective of the EU, where digital contents freely circulate without any restriction at the national level and where competition is not distorted. This paper explores the grounds of these assumptions by looking at recent decisions of the CJEU. It examines, first, how the Court in the FAPL decision has balanced the author's exclusive right of communication to the public with regard to the interplay between copyright licensing and internal market law in the provision of broadcasting services. The second part analyses the CJEU judgment in UsedSoft, the EU copyright law atomization resulting from the decision and the relevance, if any, in digital markets of differentiating between the exclusive right of distribution of goods, exhaustible, and the exclusive right to provide services, non-exhaustible. The third and last part focuses on the policy implications in terms of innovation connected to the role of copyright law and competition in online markets.