The Routledge Handbook of EU Copyright Law (Routledge Handbooks)

The Routledge Handbook of EU Copyright Law provides a definitive survey of copyright harmonization in the European Union, capturing the essential and relevant issues of this relatively recent phenomenon. Over the past few years, two themes have emerged: on the one hand, copyright policy and legislative initiatives have intensified; on the other hand, the large number of references to the Court of Justice of the European Union has substantially shaped the EU copyright framework and, with it, the copyright framework of individual EU Member States.This handbook is a detailed reference source of original contributions which analyze and critically evaluate the state of EU copyright law with a view to detecting the key trends and patterns in the evolution of EU copyright, weighing the benefits and disadvantages of such evolution. It covers a broad range of topics through clusters focused on: the history and approaches to EU copyright harmonization; harmonization in the areas of exclusive rights, exceptions and limitations, and enforcement; copyright policy and legacy of harmonization. With contributions from a selection of highly regarded and leading scholars in this field, the Routledge Handbook on European Copyright Law is an essential resource for students and scholars who are interested in the field of copyright law. Cover Half Title Title Page Copyright Page Table of Contents List of Contributors Preface: 30 years of EU copyright law Acknowledgments and hope Section I: The law and policy of the EU copyright harmonization project 1 The competence and rationale of EU copyright harmonization Abstract Introduction Review of EU competence Expansions of competence EU Commission Gold plating Commission’s guidelines Court of Justice of the EU Conclusion References 2 Fundamental rights in EU copyright law: an overview Abstract Introduction Ownership and scope of protection Copyright as a fundamental right Fundamental freedoms as limits to the scope of exclusivity Exceptions The interpretation of copyright exceptions The exhaustive nature of the catalogue Enforcement Disclosure injunctions Blocking and fltering injunctions Conclusion References 3 The desirability of unification of European copyright law Abstract Introduction Copyright law unifcation as part of the European common project One market, one copyright law Human rights and access to culture Copyright law and unifcation: all players are in position The CJEU’s judicial activism: the fnishing touch to a covert unifcation The rise of “GAFA” and the efectiveness of copyright law policymaking Conclusion References Case law Ofcial documents Section II: Copyright and related rights: when does and should protection arise? 4 The authorial works protectable by copyright Copyright is a right of authors in respect of their works Authorial works are literary or artistic works that constitute an author’s own intellectual creation Works are bounded expressive objects having a certain unity and stability of expressive form Ideas and information are not works The denial of copyright to ideas and information abstracted from works The denial of copyright to works whose content is indistinguishable from their form Expressive objects whose perception as such depends on unreliable human faculties are not works Works are original (intellectual creations of an author) Some types of work aford insufcient scope for authorship ever to be original Words and other expressive elements can never be original Works the expressive form of which is determined exclusively by their nature or purpose Some works are the product of insufcient authorship to be original in fact Problems with the European conception of originality Future challenges for the European conception of copyright subject matter References Case law EU case law Domestic case law 5 The Cofemel revolution – originality, equality and neutrality Abstract An outlook from the Cofemel decision How the revolution got air under the wings No way back from Infopaq No added value or subjective assessments But how did we suddenly get this far? Originality, of course, but what does it mean now? All you need is a ‘work’ Don’t stumble on the functionality stone No categorization of works Is a spare part a work? No l’unité de l’art but EU cumulation References 6 The new related right for press publishers: what way forward? Abstract Introduction A tale (not only) of copyright and related rights From national press publishers’ rights to the EU press publishers’ right The EU press publishers’ right: more concerns than solutions National implementations: press publishers’ right à la française between IP and competition law What way forward? References Decisions and case law Section III: The scope of exclusive rights and liability for the doing of unauthorized acts 7 The right of reproduction Abstract Introduction The right of reproduction in legislative texts International background and preparatory works The scope of the right of reproduction in EU directives Exceptions and limitations CJEU case law General principles and defnitions Temporary reproduction and related exception(s) Partial reproduction Format shifting: reproduction or adaptation? Private copying and fair remuneration Other exceptions to the right of reproduction (Article 5(2) and (3) InfoSoc) Conclusions References Case law 8 The distribution right and its exhaustion Abstract Distribution and exhaustion – historical overview The concept(s) of distribution Transfer of possession or transfer of ownership? Any act that leads to distribution “To the public” The distribution right applies to cross-border situations Application to the digital environment Exhaustion of the distribution right – rationale and conditions Overview and rationale Copy criterion Sale/transfer criterion Consent criterion Mandatory character Application to the online context Conclusion References Case law (CJEU) 9 The EU right of communication to the public – still looking for a good link Abstract Introduction The current test From Rafael Hoteles to STIM and SAMI – Background to the development of the communication to the public right Elements of the test (Step 1) ‘Communication’ (Step 2) ‘Public’ (Step 3) ‘Diferent technical means’ (Step 4) ‘New public’ (Step 5) ‘Knowledge’ (Step 5 1⁄2) ‘For proft’ The test Still getting it wrong Context High level of protection and broad interpretation Judicial activism Ignoring the dissemination function of copyright law Implications of choosing the wrong criteria Asking and answering the wrong questions Predicting the pending cases Joined Cases C-682/18 and C-683/18 Peterson v YouTube and Elsevier v Cyando and Case C-500/19 Puls 4 v YouTube Case C-442/19 Stichting Brein v News Service Case C-597/19 MICM v Telenet Conclusion References Case law 10 Primary and accessory liability in EU copyright law Abstract Introduction The exclusive rights of the copyright owner in the directives The right of communication to the public The act of ‘communication’ The notion of a ‘public’ A ‘new’ public Knowledge or intention The distribution right Accessory liability in the EU Article 17 of the Directive on Copyright in the Digital Single Market Exceptions and limitations Injunctions Conclusion References Case law 11 Proving copyright protection and infringement: lessons from the CJEU Abstract Introduction Proof of copyright outside the scope of harmonization? Lack of harmonization and procedural autonomy From harmonizing substantive law to harmonizing the law of evidence: the examples of trade mark and design law Efectiveness as a limitation on procedural autonomy Proof of copyright inside the scope of harmonization: fair balance as a paradigm A blueprint for proving copyright protection in the EU Conclusion References Case law Court of Justice General Court AG Opinions Domestic case law Section IV: The state of copyright exceptions and limitations 12 The quotation exception under EU copyright law: paving the way for user rights Abstract Introduction Permitted quotations under international and EU copyright law Permitted quotations under CJEU case law The purpose and character of the use The kind of copyright-protected work The amount and substantiality of the portion taken The efect of the use upon the potential market The copyright balance: exclusive rights, exceptions and fundamental rights The legal nature of the quotation exception Conclusion References Case law 13 Exceptions as users’ rights? Abstract Introduction Remarks on the legal nature of copyright exceptions Rules and exceptions Exceptions, scope limitations and users’ rights Construing users’ rights in the EU copyright framework From derogations to autonomous sources of rights Expressions of fundamental rights Fair balance and proportionality Intellectual property as fundamental right A “human” right? Making sense of Article 17(2) of the EU Charter: not an absolute right The efect of Article 17(2) on exceptions and limitations Users’ rights after the DSM Copyright Directive The prohibition of contractual override of exceptions and limitations New copyright exceptions: the case of out-of-commerce works Conclusion References Case law 14 On the wax or wane? the influence of fundamental rights in shaping exceptions and limitations Abstract Introduction The legal framework of fundamental rights The tensions between fundamental rights and copyright explained The rise of fundamental rights concerns in CJEU copyright exception jurisprudence Increasing importance of the fundamental freedoms’ framework, broad discretion for Member States and problems ahead Conclusion References Books Journal articles Other sources Case law 15 Artificial intelligence and text and data mining: a copyright carol Abstract Introduction The ghost of the copyright present The ghost of the copyright past A purposive test for assessing the infringement of the reproduction right A traditional and a purposive interpretation of the extraction right The ghost of the TDM yet to come Unfnished business Conclusions References Case law 16 The treatment of humor in US copyright law with a comparative glance at the EU Abstract Introduction Setting the scene Humour and American copyright law Folsom v. Marsh Fair use and the 1976 Act Parody and fair use Parody in the EU Deckmyn v. Vandersteen References 17 The nature and content of the three-step test in EU copyright law: a reappraisal Abstract Introduction The three-step test in international law and the EU’s commitments The introduction and proliferation of the three-step test in international law The scope of the international three-step test The implementation of the three-step test into EU law The three-step test in the acquis EU three-step test: limit to Member State discretion or subjective duty of every user? The content of the EU three-step test Concluding remarks References Case law Dispute Settlement Body of the WTO European Court of Human Rights Court of Justice of the European Union Supreme Court of the Netherlands Section V: Copyright enforcement: the technological and cross-border dimensions 18 Website blocking under EU copyright law Abstract Introduction Structurally copyright infringing websites Website Blocking: Defnition and methods of implementation The EU legal framework Art. 8(3) of the Copyright Directive 2001/29 Purpose Access providers as intermediaries Infringement of copyright or related rights Fundamental rights and proportionality Practical relevance in the Member States and outlook References Case law European Union Domestic case law 19 Location, location, location! copyright content moderation at non-content layers Abstract Introduction Functioning of the DNS and its location within the content blocking landscape A copyright twist: domain names and the DNS as a case of “linking”? Liability exemptions in the E-Commerce Directive DNS services and the E-Commerce Directive The case of IP address rental The case of content delivery networks Information about the infringer: the practical role of registration data “Voluntary” arrangements Making sense of “location” in the enforcement of copyright References Case law CJEU Domestic case law 20 Jurisdiction and choice of law in online copyright cases Abstract Introduction Jurisdiction The accessibility approach Extraterritorial jurisdiction Choice of law The targeting approach on the level of substantive law Ubiquitous infringements Conclusions References Case law 21 Enforcement of European rights on a global scale Abstract Introduction Twenty years ago ... Licra v Yahoo! Global enforcement: an international trend? Global enforcement in the EU C-507/17 Google v CNIL C-18/18 Glawischnig-Piesczek v Facebook A Pilate’s decision? Global or local enforcement? Limiting conficts and promoting international coexistence A subject matter specifc balanced approach Conclusions References Case law Section VI: The Court of Justice of the European Union 22 The multifaceted influence of the Advocates General on the Court of Justice’s copyright case law: legal secretaries, literature and language Abstract Introduction State of the art – previous empirical studies on Advocates General opinions Methodology The Advocate General Selection Role Allocation of cases 23 Rationales and litigation strategy of the French government before the CJEU in copyright cases Abstract Introduction The rationales behind the active stance of the French government in copyright matters Providing a better understanding of the relevant French law before the CJEU Defending the compatibility of French law with EU law Dissemination of legal solutions established by French courts Case studies The right of communication to the public Requests for a change in CJEU case law concerning exercise of the right of communication to the public in the physical world Adapting the right of communication to the public to the digital world The private copying exception Conclusion References Case law 24 Reading tea leaves differently? a comparison of the interpretive fingerprint of the CJEU and the US Supreme Court in copyright law Index The Routledge Handbook of EU Copyright Law provides a definitive survey of copyright harmonization in the European Union, capturing the essential and relevant issues of this relatively recent phenomenon. Over the past few years, two themes have emerged: on the one hand, copyright policy and legislative initiatives have intensified; on the other hand, the large number of references to the Court of Justice of the European Union has substantially shaped the EU copyright framework and, with it, the copyright framework of individual EU Member States. This handbook is a detailed reference source of original contributions which analyze and critically evaluate the state of EU copyright law with a view to detecting the key trends and patterns in the evolution of EU copyright, weighing the benefits and disadvantages of such evolution. It covers a broad range of topics through clusters focused on: the history and approaches to EU copyright harmonization; harmonization in the areas of exclusive rights, exceptions and limitations, and enforcement; copyright policy and legacy of harmonization. With contributions from a selection of highly regarded and leading scholars in this field, the Routledge Handbook on European Copyright Law is an essential resource for students and scholars who are interested in the field of copyright law