Show Less
You do not have access to this content

EU COPYRIGHT LAW

A Commentary

IRINI STAMATOUDI, PAUL TORREMANS

This significantly revised and updated second edition addresses the rapid development of EU copyright law in relation to the advancement of new technologies, the need for a borderless digital market and the considerable number of EU legal instruments enacted as a result. Taking a comparative approach, the Commentary provides comprehensive coverage and in-depth commentary on each of the EU legal instruments and policies, both from an EU and an international perspective. Alongside full legislative analysis and article-by-article commentary, the Commentary illustrates the underlying basic principles of free movement and non-discrimination and provides insights into the influence of copyright on other areas of EU policy, including telecoms and bilateral trade agreements.
Show Summary Details
This content is available to you

INTRODUCTION

0.01 Intellectual property rights play a pivotal role in the advance of technology, the sustainability of creativity and the flourishing of the economy in the European Union (EU). Copyright forms an important part of intellectual property (IP), especially if one considers that it is closely linked to culture, knowledge, digitisation projects, online markets and new technologies, such as Artificial Intelligence (AI). Copyright has to face a dual challenge. On the one hand, it needs to provide sufficient protection to authors and right holders and on the other hand, it needs to accommodate the needs of the information society, technological evolution and the public, which are mostly concerned with access to content.

0.02 In its published Policy Statement, the EU Commission states that ‘[d]igital technologies have radically changed the way creative content is produced, distributed and accessed. We are adapting the EU copyright rules to new consumer behaviours in a Europe which values its cultural diversity’.1 That necessarily leads to modernisation of the copyright rules, which cuts across three main areas: a) better choice and access to content online and across borders; b) improved copyright rules on research, education and cultural heritage; and c) achieving a well-functioning marketplace for copyright.2

0.03 But let’s take things from the start. Copyright has changed shape through the years depending on copyright’s weight in the EU and the Single Market. When the Treaty of Rome was drafted (1957) copyright was not an issue. The reason for that was that the aims and targets of a European Economic Community seemed to be unrelated to IP and even more to copyright. In the whole of the Treaty of Rome one could find just one reference to IP and this was only to ‘industrial and commercial property’. This reference was inserted as an exception to the general rule for the free movement of goods (Art. 36 EC Treaty). At a later stage the Court of Justice of the European Union (CJEU) applied this exception by analogy to copyright. The case law developed on the basis of this provision was considerable and touched upon aspects that one could not even conceive in the early stages. The importance of copyright (as well as IP rights) was only realised when this right (because of its absolute and exclusive character as well as because of its territorial constraints) was used by entrepreneurs as a tool to sidestep provisions on the free movement of goods and to try to charge different prices for the same product in different EU Member States through the prevention of parallel imports. The CJEU’s case law restored the balance and set the principles.

0.04 Nowadays, the creative industries are considered to be a backbone of the EU’s economy. According to a 2016 Report by the European Parliament:3

all around the world, the cultural and creative sector (hereafter referred to as CCIs) is considered a major and growing part of the global economy. Its importance as a generator of jobs and wealth is increasingly recognised, particularly so in the EU: following a recent study commissioned by the European Commission, CCIs (excluding high-end industries) constitute 11.2 % of all private enterprises and 7.5 % of all persons employed in the total economy. Overall, more than three million enterprises, employing over 12 million persons, can be comprised within CCIs (excluding high-end industries). In terms of value added, CCIs (excluding high-end industries) generate 5.3 % of the total European GVA.4 High-end industries, on the other hand, employ approx. 1.7 million persons. Their value in terms of sales of goods and services amounts to € 547 billion, or approximately 4 % of nominal EU GDP. On its site the European Commission states that ‘33 sectors of the EU economy are considered copyright-intensive, accounting directly for over 7 million jobs, or 3% of employment in the EU’.5

0.05 It is on this basis – as it has been developed through the years – that the EU decided to become more energetic concerning copyright issues and their adaptation to the new environment.

0.06 On 19 May 2010 the EU introduced the Europe 2020 Strategy, which was its plan for the advancement of the economy. This strategy set out five key targets6 to be achieved by the end of 2020 through seven ‘flagship initiatives’, which among others included innovation and the digital economy.

0.07 The Digital Agenda presented by the European Commission formed one of the seven ‘flagship initiatives’.7 It aimed to better exploit the potential of Information and Communication Technologies (ICTs) in order to foster innovation, economic growth and progress. Actions relating to IP rights were scheduled to be concluded by 2014 and aimed to adjust existing IP rights to the digital world. The Europe 2020 Strategy was published in the form of a Communication.8

0.08 In April 2011 the Commission published another Communication known as ‘The Single Market Act’ (Single Market Act I).9 This Act aimed at delivering 12 projects on the basis of which the Single Market would be reinforced for 2012. Amongst these projects two were dedicated to Intellectual Property Rights and the Digital Single Market. In October 201210 the Commission proposed a second set of actions (12 priority actions) (Single Market Act II) to further develop the Single Market and ‘exploit its untapped potential as an engine for growth’. These actions included the Digital Economy.

0.09 On 24 May 2011 the EU introduced the Intellectual Property Strategy, which was complementary to and an essential element of the Europe 2020 Strategy, the Single Market Act and the Digital Agenda for Europe.11 This strategy contained a map of initiatives in the area of copyright.

0.10 According to Internal Market Commissioner Michel Barnier the aim:

is to get the balance between these two objectives right for IPR across the board. To make Europe’s framework for intellectual property an enabler for companies and citizens and fit for the online world and the global competition for ideas.

0.11 These initiatives (mainly legislative in nature) would considerably facilitate the protection, licensing and offering of works. Yet, they would remain only part of the bigger puzzle: they would only constitute bits and pieces of a larger action required for copyright. Some (or even many) think that copyright urgently needs a holistic ‘retouch’ or else a full harmonisation as it touches on too many products (aiming at) circulating freely within the Single Market and therefore it brings up far too many financial aspects, which no longer allow EU Member States to abide by their original traditions in the field.

0.12 On 5 December 2013 the European Commission launched a Public Consultation on the review of the EU copyright rules. The deadline (after being extended) was 5 March 2014. The Hellenic Presidency of the Council (January to June 2014)12 initiated a discussion on issues contained in the Public Consultation.

0.13 On 9 December 2015 the European Commission issued a Communication on a modern and more European copyright framework, which set out the main political objectives and areas of action, as well as the time frame, and which tried to integrate existing initiatives with pending and new ones.13

0.14  On 14 June 2017, the Regulation on cross-border portability of online content services was published, which allows consumers who buy or subscribe to films, sport broadcasts, music, e-books and games to access them when they travel in other EU countries.

0.15 On 13 September 2017 a Directive and a Regulation implementing the Marrakesh Treaty in the EU were adopted. These two legal instruments partly modify the exceptions and limitations found in the Information Society Directive and adjust them to the provisions of the Marrakesh Treaty. People who are blind, visually impaired, or otherwise print disabled within the EU, as well as those from other countries, will be able to access more books and other print material in accessible formats, including adapted audio books and e-books, from across the EU and the rest of the world.

0.16 On 17 May 2019 two Directives were published: The new Directive on copyright in the digital single market and the Directive on television and radio programmes, laying down rules to facilitate access to online TV and radio content across borders. 

0.17 The avenue to copyright’s modernisation has not been without obstacles. The main conflict focused on where to draw the line. EU institutions (amongst themselves) as well as national governments (amongst themselves and in their relationship with the EU institutions) did not always share the same views. The adoption of the Digital Single Market (DSM) Directive and its two controversial Articles (i.e., Arts 15 and 17) form one example only in this context. Yet, consensus prevailed. One could, of course, argue that not much is left from the menu that was originally envisaged by the EU policy leaders.

0.18 Up to now the acquis communautaire consists of 11 Directives and 2 Regulations.

0.19 The CJEU has also been pro-active, aiming perhaps to attain what would be slow and cumbersome (though more democratic) for politics and policies. Prime examples in this respect are the notion of ‘new public’, the harmonisation of the originality criterion in the EU and the role of fundamental rights with regard to exceptions and limitations to copyright.

0.20 This book aims to cover all matters pertaining directly to ‘EU copyright law’ and at the same time offer a commentary on the relevant legislative instruments.

0.21 It also aims to approach ‘EU copyright law’ from the perspective of the international developments that currently take place in WIPO and look into trends and needs for the future.

0.22 The book is divided into four main parts. The first part deals with the general principles of copyright law in the EU. It offers a general view on the acquis communautaire, on the notion of ‘EU copyright law’ and presents the principles of non-discrimination, free movement of goods and the ‘essential facilities’ doctrine. The second part constitutes the main corpus of the book and it is a commentary on all EU Copyright Directives and Regulations. Once the hard law picture is set, the book moves on to Part III to discuss general EU policies and actions in key areas such as copyright enforcement and potential clashes with privacy, digitisation projects, such as Europeana, and present some thoughts on a decade of EU copyright policy in the shadow of crises. Part III also deals with private international law issues, especially with regard to the internet’s multi-territorial nature. The fourth part of the book discusses issues relating to the present and future of copyright. This is done from the perspective of the developments in the World Intellectual Property Organization (WIPO), from the perspective of the role of the CJEU as well as from the point of view of those advocating the need for a total (or more substantial) harmonisation.

0.23 Although the book aims at being comprehensive, it is not exhaustive, since there are many more legislative instruments, initiatives or aspects which, although they do not relate directly to copyright, are still relevant to it. Being exhaustive would be an almost unattainable task, which would require a lot more effort, time and work and would perhaps make this book an unworkable tool for those aiming to use it in practice. We nevertheless hope that the book provides a comprehensive and elucidating coverage of those instruments and policies that have copyright as (one of) their core element(s).

1   https://ec.europa.eu/digital-single-market/en/policies/copyright

2   Ibid.

3   Report on a coherent EU policy for cultural and creative industries (2016/2072(INI)), 30.11.2016 https://www.europarl.europa.eu/doceo/document/A-8-2016-0357_EN.html.

4   European Commission, Boosting the competitiveness of cultural and creative industries for growth and jobs, 22.07.2016 https://op.europa.eu/en/publication-detail/-/publication/723a331a-d6be-45e3-8475-8ce6ca0ee050.

5   https://ec.europa.eu/digital-single-market/en/policies/copyright.

6   These targets cover employment; education; research and innovation; social inclusion and poverty reduction; and climate/energy.

7   Digital Agenda for Europe (COM (2010) 245).

8   Communication from the Commission Brussels, 3.3.2010, COM (2010) 2020 final.

9   Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions Single Market Act twelve levers to boost growth and strengthen confidence; working together to create new growth; COM/2011/0206 final (Single Market Act I).

10 Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions. Towards a Single Market Act. For a highly competitive social market economy 50 proposals for improving our work, business and exchanges with one another. Brussels, 11.11.2010. COM (2010) 608 final/2.

11 See also the Annual Growth Survey 2011 (COM (2011) 11) and the Innovation Union (COM (2010) 546).

12 During the Hellenic Presidency of the Council of the EU Irini Stamatoudi has acted as a President.

13 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions towards a modern, more European copyright framework, Brussels, 9.12.2015, COM(2015) 626 final.