The essay is aimed to analyse Article 17(2) of the EU Charter of Fundamental Rights, through the Court of Justice practical case law, which results in contributing to a correct interpretation of the Article in accordance with a fair balance with other fundamental rights and freedoms. In conclusion, the content of Article 17(2) has been revealed to be essential in order to strengthen the discipline of intellectual property protection.
Edited by Alain Strowel
Edited by Alain Strowel
This chapter reviews the various EU laws that allow private parties to control the use of data. Relying on the view that property is an institution for organizing the use of resources, the chapter shows that the EU legal framework creates various property-like protections around data. Intellectual property rights, such as copyright or the database right, contribute to data appropriation. In addition to contracts, possibly combined with technical and organizational protections, data protection and trade secrets regimes also facilitate the appropriation of personal and confidential data. The chapter also summarizes the 2017 Commission’s initiatives concerning the free flow of nonpersonal data and argues against the introduction of a new data property.
The Europeanization of copyright law follows various paths. Secondary European Union (EU) copyright law, embedded in the ten directives (and one regulation) devoted to copyright issues, has indeed contributed to the approximation of national copyright laws. The obligation for the copyright directives to be transposed into national law nevertheless reduces the level of harmonization. But the Europeanization of copyright has taken another route: since its seminal Infopaq decision, the Court of Justice of the EU (CJEU) regularly delivers decisions which rule on major copyright issues, such as originality and the scope of the right of communication to the public. Those decisions not only make the law, they also show some shortcomings in the existing framework and indirectly indicate the direction that copyright reform could 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 ‘by interpretation’. Basically, the CJEU is ‘filling the gaps’ of the primary and secondary EU laws. It is clear that a court-made harmonization of European copyright has been under way since 2009 at least. The CJEU probably offers a reasonably coherent interpretation of the substantive conditions of protection, the scope of the rights and of the exceptions, the balancing with other fundamental rights (freedom of expression, privacy, freedom to operate), the responsibilities of online intermediaries (including for hyperlinking and aggregating content), some contractual principles, etc.
Vincent Cassiers and Alain Strowel
The Court of Justice of the European Union (CJEU) shapes intellectual property law by interpreting primary and secondary EU law, by identifying ‘autonomous concepts of EU law’, and by balancing intellectual property (IP) rights with fundamental rights and competition law. This leads to what could be called “CJEU-made law” for IP. The growing number and importance of cases brought before the CJEU and the need to have IP consistently interpreted and adequately fine-tuned require revisiting the working of the CJEU. One possible avenue would involve the creation of a specialized chamber for IP.