Chapter 6: Intellectual property
Two features determine the EU regulation of intellectual property rights. The first feature is the comprehensiveness of that regulation.1 Most of the areas traditionally included in IP law are addressed in various IP-related policies and documents, covered by one or more regulations or directives and frequently addressed in the Court of Justice. The EU law affects national IP rights in two ways. First, it harmonizes various IP rights or establishes unitary EU-wide IP rights. Second, it subjects national IP regimes to free movement provisions.2 While these approaches are conceptually different, together they produce a very wide coverage of various IP rights.3 The second feature is that the EU’s international obligations significantly influence its regulatory model. The EU member states individually and the EU as a whole are party to the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Although the agreement does not have direct effect, it can and is interpreted and applied at EU level.4 Similarly, and of equal importance for the present subject, the EU and the Member States are parties to the World Intellectual Property Organization (WIPO) Copyright Treaty 1996 and the WIPO Performances and Phonograms Treaty 1996.5 This chapter analyses the application of the EU intellectual property regime to the digital world. Two directives will be analysed in detail: the Copyright Directive (also known as Information Society, or InfoSoc, Directive) and the Copyright Enforcement Directive. Both have direct application to the Internet and have been tested in national courts and in the European Court.
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