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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.
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Chapter 29: ADVOCATING AN EU COPYRIGHT TITLE

Alain Strowel

Extract

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.

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