Abstract
In a recent review of the EU legal framework in the field of copyright, the European Commission presented the 2001 InfoSoc Directive as the “most horizontal” (i.e., comprehensive) measure ever adopted in this field.124 In spite of its title and apparent objectives, the InfoSoc Directive provides EU law with a horizontal regulation of copyright which goes far beyond the framework of digital settings, and involves all dimensions of artistic and literary property. In accordance with the field of application of the Directive, this analysis will not deal directly with earlier copyright regulations addressing specific subject matters such as software and database protection. The exclusion of software is specifically provided by Recital 50 of the InfoSoc Directive, according to which the Directive does not affect the specific provisions on protection provided for by the Software Directive.
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References
See Commission of the European Communities, Commission Staff Working Paper on the review of the EC legal framework in the field of copyright and related rights, SEC (2004) 995, Brussels, 19.7.2004, p. 3.
See Cohen Jehoram, ‘European Copyright Law — Even More Horizontal’, (32) IIC 2001, p. 532, at p. 545.
Ibidem.
See Deutsche Grammophone v. Metro-SB-Grossmärkte, C-78/70, 1971, ECR, 487.
See Coditel and others v. Ciné Vog Films and others, C-62/79, 1980, ECR 881 (hereinafter Coditel).
See Warner Brothers Inc. and Metronome Video ApS v. Erik Viuff Christiansen. C-158/86, 1988, ECR 2605 (hereinafter Warner Brothers).
See EMI Electrola GmbH v. Patricia Im-und Export and others, C-341-87, 1989, ECR 79 (hereinafter EMI/Electrola).
See Cohen Jehoram, ‘European Copyright Law’, op. cit., pp. 533–34.
See Council Directive 93/83/EEC of 27 September 1993 on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, OJ L 248, 6.10.1993, p. 15.
See Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, OJ L 346, 27.11.1992, p. 61, which has been repealed and replaced by Directive 2006/115/EC of 12 December 2006, OJ L 376, 27.12.2006, p. 28.
See Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights, OJ L 290, 24.11.1993, p. 9, whose later amendments have been codified by Directive 2006/116/EC of 12 December 2006, OJ L 372, 27.12.2006, p. 12.
Commission of the European Communities, Green Paper on Copyright and the Challenge of Technology, COM (88), 172, Final of 7.06.1988.
Ibidem, p. 536.
See Ullrich, ‘Legal Protection of Innovative Technologies: Property or Policy?’, in: Grandstrand (ed), Economics, Law and Intellectual Property-Seeking Strategies for Research and Teaching in a Deeloping Field, Kluwer Academic Publishers, Boston, 2003, p. 439, at p. 471.
See Cohen Jehoram, ‘European Copyright Law’, op. cit., pp. 537–38.
See Commission of the European Communities, First evaluation of Directive 96/9/EC on the legal protection of databases, DG Internal Market and Services Working Paper, 12.12.2005, available at: http://ec.europa.eu/internal_market/copyright.
See First evaluation of Directive 96/9/EC, p. 3.
See Pardo, Copyright and Multimedia, Kluwer Law International, The Hague, 2003, p.148, who recalled the two primary raisons d’être of the Software Directive, according to its own preliminary recitals: (i) a financial reason (“based on the high financial investment of human and technical resources required for the creation of software”); and (ii) a legal reason (“based on the need to obtain an identical, uniform and complete protection of these works in all Member States of the Community”).
See Weatherill, EC Consumer Law and Policy, Longman, London and New York, 1997, p. 7; and de Witte, ‘Non-market values in internal market legislation’, in Shuibhne (ed), Regulating the Internal Market, Edward Elgar, Cheltenham, 2006, p. 61, at p. 67 (“By providing for qualified-majority voting in the new Article 100a (though not in the ‘old’ Article 100) and in most of the specific internal market legal bases, the authors of the SEA contributed indeed to the smooth legislative implementation of the internal market programme set out in the Commission’s White Paper of 1985 [...]”). De Witte stresses even that, following the enactment of the 1992 Maastricht Treaty and the 1997 Amsterdam Treaty, the scope of “pure” internal market legislation, originally encompassed by the legal basis provided by Articles 94 (ex 100: unanimity) and 95 (ex 100a: qualified majority), was reduced by the creation of sector-specific policies such as environmental protection, health and safety of workers, social policy, migration, and civil law and procedure.
See Weatherill, EC Consumer Law and Policy, op. cit., p. 7.
See Cohen Jehoram, ‘European Copyright Law’, op. cit., p. 536, who emphasised that, “around 1990, the atmosphere in the copyright department of what is now Directorate XV, internal market, began to change. New personnel was appointed with other ambitions and orientation than those that went before [...]”.
See de Witte, ‘Non-market values in internal market legislation’, op. cit., pp. 75–76, who argues that, for internal market legislation to be constitutionally valid, the approximation of laws allowed under Article 95 must pursue either the objective formulated in Article 3 (h) of the EC Treaty (“The approximation of the laws of Member States to the extent required for the proper functioning of the common market”) or the objective formulated in Article 3 (f) (namely, “the institution of a system ensuring that competition in the common market is not distorted”).
See Ullrich, ‘Legal Protection of Innovative Technologies: Property or Policy?’, op. cit., p. 471.
See Commission of the European Communities, Green Paper. Copyright and Related Rights in the Information Society, Brussels, 19.07.1995, COM (95) 382 final, 49.
See Article 8 of the WIPO Copyright Treaty; Articles 10 and 14 of the WIPO Performances and Phonograms Treaty. A more in-depth commentary on the enactment of these measures was provided in Mazziotti, ‘Il diritto d’autore comunitario nel nuovo ambiente digitale’, 7(1) Ciberspazio e Diritto 2006, p. 55, at pp. 61–63.
See Hugenholtz, ‘Why the Copyright Directive is Unimportant, and Possibly Invalid’, (22) EIPR 2000, p. 500; Ricolfi, ‘Intellectual Property rights and legal order’, Il Diritto di Autore 2001, p.132.
See, for trademarks, Regulation 40/1994/EC, OJ L 011, 14.01.1994; and, for industrial designs, Regulation 6/2002, OJ, L 3, 5.01.2002.
See Ullrich, ‘Harmony and unity of European intellectual property protection’, in: Bently and Vaver (eds), Intellectual Property in the New Millenium: Essays in Honour of William R. Cornish, Cambridge University Press, Cambridge, 2004, pp. 20–46, at p. 37.
Ibidem.
See Mazziotti, ‘Did Apple’s Refusal to License Proprietary Information Enabling Interoperability with Its iPod Music Player Constitute an Abuse under Article 82 of the EC Treaty?’, 28(2) World Competition 2005, p. 253, at p. 261.
See Commission of the European Communities, Competition: European Commission confirms sending a Statement of Objections against alleged territorial restrictions in on-line music sales to major record companies and Apple, Press releases, Brussels, 3 of April 2007, available at http://www.europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/126.
See Commission of the European Communities, Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee, The Management of Copyright and Related Rights in the Internal Market, COM/2004/0261 final.
Ibidem, under Section 1.2.4 (labelled “The Call for Community-wide Licensing”), where the Commission questioned whether, in this context, “it should be left for the market to develop Community-wide licensing further, while respecting the basic rules of intellectual property protection, including its territorial nature, or whether the Community legislator should seek to facilitate greater Community wide licensing”.
See Commission of the European Communities, Commission Staff Working Document, Study on a Community Initiative on the Cross-Border Management of Copyright, Brussels 7.07.2005, available at: http://www.europa.eu.int (hereinafter “Commission Working Document”).
See Commission Recommendation of 18 October 2005, OJ L 276, 21.10.2005, pp. 54–57 (hereinafter “Commission Recommendation”). The objectives of the Recommendation are clarified by Recitals from 4 to 9, where it is stated that, in the era of online exploitation of musical works, new commercial users such as online music service providers need a licensing policy that corresponds to the ubiquity of the online environment and which is multi-territorial. Recital 7, in particular, emphasises that licensing of exclusive rights covering the process of online distribution is often restricted by territory, in such a way that commercial users are forced to negotiate in each Member State with each of the respective collective rights managers for each right that is included in the online exploitation (i.e., the reproduction and communication to the public rights).
See Commission Staff Working Document, Impact Assessment reforming cross-border collective management of copyright and related rights for legitimate online music services, Brussels 11.10.2005, available at: http://www.europa.eu.int.
See Hugenholtz, ‘Caching and Copyright: The Right of Temporary Copying’, (22) EIPR 2000, p. 482, at p. 486.
See Hugenholtz, ‘Caching and Copyright’, op. cit., p. 486.
See Dusollier, ‘Technology as an Imperative for Regulating Copyright: From the Public Exploitation to the Private Use of the Work’, (27) EIPR 2005, p. 201 (“[W]hen copyright was chosen as the means to protect computer programs, the worm started eating the fruit. It was felt necessary to prevent uses of software by multiple users from one single copy hosted on a shared server.”); and Romano, L’opera e l’esemplare nel diritto della proprietà intellettuale, Cedam, Padova, 2001, p. 193, who observed that the strict regulation of use through the provision of a very broad right of reproduction on software could be justified on the assumption that software is a means to use rather than a work to communicate.
See Czarnota and Hart, Legal Protection of Computer Programs in Europe, A Guide to the EC Directive, Butterworths, London, 1991, pp. 56–57, who argued that most licences controlled the use that could be made of the programme in terms of ability to store or transmit it. These authors concluded that, whatever interpretations can be made of the second part of Article 4(a), acts such as loading and running, although technically requiring reproduction, and therefore legally requiring authorisation, should be meant to be impliedly permitted if a right of ordinary use is acquired.
See Dusollier, ‘Technology as an Imperative for Regulating Copyright’, ‘op. cit., p. 201.
See Ricolfi, ‘Le nuove frontiere della proprietà intellettuale, da Chicago al cyberspazio’, in: Clerico and Rizzello (eds), Diritto ed economia della proprietà intellettuale, Cedam, Padova, 1998, p. 83, at pp. 93–94.
Ricolfi, ‘Proprietà intellettuale, antitrust e reti’, in: Cambini and Valletti (eds), I mercati della comunicazione nell’era digitale, Il Mulino, Bologna, 2002, p. 66.
See Article 6(2)(a) of the Software Directive. In the U.S. literature, the same issue was examined by Reichman, ‘Legal Hybrids Between the Patent and the Copyright Paradigms’, (94) Columbia Law Review 1994, p. 2432; and Lemley, ‘The Economics of Improvements in Intellectual Property Law’, (75) Texas Law Review 1997, p. 997.
See Hugenholtz, ‘Caching and Copyright’, op. cit., p. 485.
See Ginsburg, ‘Putting Cars on the “Information Superhighways”: Authors, Exploiters and Copyrights in Cyberspace’, (95) Columbia Law Review 1995, p. 1466; Ricolfi, Comunicazione al pubblico e distribuzione, Annali Italiani di Diritto d’Autore (AIDA) 2002, p. 48, at p. 75; Hugenholtz, ‘Adapting Copyright to the Information Superhighway’, in: Hugenholtz (ed), The Future of Copyright in a Digital Environment, op. cit., p. 80.
It is an expression borrowed from Cohen Jehoram, ‘European Copyright Law’, op. cit., p. 540. For a detailed analysis of the provision of Article 5(1) of the InfoSoc Directive, see Study on the implementation and effect in Member States’ laws of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the Information Society, Final Report, Institute for Information Law, University of Amsterdam, February 2007, available at http://www.ivir.nl/index-english.html.
As recalled by Hugenholtz, ‘Caching and Copyright’, op. cit., “[C]aching (etymologically related to the French “cacher”: to hide) is the automatic creation of temporary copies of digital data (in a “cache”) in order to make the data more available for subsequent use”.
See Hugenholtz, ‘Caching and Copyright’, op. cit., p. 487. The author elaborated this view by commenting sarcastically on the appropriateness of the above-mentioned exemption: see Hugenholtz, ‘Why the Copyright Directive is Unimportant, and Possibly Invalid’, op. cit., p. 501 (“Did we really need a European lawmaker to tell us that caching and browsing are allowed without authorisation? A common sense right would have done the job as well, if not much better [...]”).
See Commission of the European Communities, Explanatory Memorandum, Proposal for a European Parliament and Council Directive on the harmonization of certain aspects of copyright and related rights in the Information Society, COM (97) 62, p. 30.
See Hart, ‘The Copyright in the Information Society Directive: an Overview’, (24) EIPR 2002, p. 58, at p. 59. Recital 33 of the Directive attempted to clarify the above-mentioned concept by providing that the acts of reproduction concerned by this limitation “should have no separate economic value on their own.”
See Study on the implementation and effect in Member States’ laws of Directive 2001/29/EC, op. cit., p. 33.
Ibidem, pp. 34–35.
Ibidem.
See Ricolfi, ‘Intellectual property rights and legal order’, op. cit., p. 132.
See Directive 2000/31/EC of 8 June 2000, on electronic commerce, OJ L 178, 17.07.2000, 1 (hereinafter “E-Commerce Directive”), Articles 12 to 15. On the connection between the InfoSoc Directive and the Electronic Commerce Directive, see Hart, ‘The Copyright in the Information Society Directive’, op. cit., p. 59; Cohen Jehoram, ‘European Copyright Law’, op. cit., p. 544; and Study on the implementation and effect in Member States’ laws of Directive 2001/29/EC, op. cit., pp. 36–37.
See U.S. Department of Commerce, Patent and Trademark Office, Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights, available at: www.uspto.gov/web/offices/com/doc/ipnii/front.pdf.
See Laserdisken ApS v. Kulturministeriet, C-479-04, Judgment of the Court (Grand Chamber), 12 September 2006, available at: http://www.curia.europa.eu (hereinafter Laserdisken).
This type of regulation found a precedent in the European Union in the law of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, OJ, L 320, 28.11.1998, 54 (hereinafter “Conditional Access Directive”). In a way fairly similar to that of prohibitions laid down in Articles 6(2) and 7(1)(b) of the InfoSoc Directive, Article 4 of the Conditional Access Directive required Member States to prohibit on their territories all activities regarding the manufacture, marketing, use, possession and communication of any equipment or software designed or adapted to give access to a protected service (e.g., television and radio broadcasting) without the authorisation of the service provider.
See Gasser and Girsberger, ‘Transposing the Copyright Directive: Legal Protection of Technological Measures in EU-Member States. A Genie Stuck in the Bottle?‘, The Berkman Center for Internet and Society at Harvard Law School, Berkman Publication Series No.2004-10, November 2004, available at: http://cyber.law.harvard.edu/publications, p. 16; see also Study on the implementation and effect in Member States’ laws of Directive 2001/29/EC, op. cit., Part II.
In the U.S. literature, for instance, see Ginsburg, ‘From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law’, Columbia Law School, Public Law and Legal Theory Working Group, 2000, available at: http://papers.ssrn.com, who argued that the so-called “access right”, as codified now under Section 1201 of the U.S. Copyright Act, was implicitly pre-supposed by the existence, under copyright law, of the exclusive rights of reproduction and distribution. Contra, see Heide, ‘Copyright in the E.U. and United States: What “Access Right”?’, (23) EIPR 2001, p. 469, who held that the recognition of the “power” to control access to creative works has nothing to do with traditional copyright protection.
In commenting on the final version of the Directive, Vinje, ‘Should We Begin Digging Copyright’s Grave?‘, (22) EIPR 2000, p. 551, at p. 556, emphasised that “it is unfortunate that E.U legislators have chosen to adopt such a far-reaching prohibition on circumvention-related activities with no link to infringement.” (emphasis added).
See Dusollier, ‘Technology as an Imperative for Regulating Copyright’, op. cit., p. 202 (“The anti-circumvention provisions are the most interesting battlefield between the traditional vision of the copyright law and the dictates of technology [...] The scope of copyright is no longer decided according to what the proper scope should be, but according to what technology can do.”).
See the final part of Article 6(3) of the InfoSoc Directive, which distinguishes analytically between access-and copy-control technologies (“[...] where the use of a protected work [...] is controlled by rightholders through application of an access control or protection process, such as encryption, scrambling [...]”) and grants them equal treatment. See Gasser and Girsberger, ‘Transposing the Copyright Directive’, op. cit., pp. 9–10; Fallenboeck, ‘On the Technical Protection of Copyright: The Digital Millennium Copyright Act, the European Community Copyright Directive and Their Anticircumvention Provisions’, (7) International Journal of Communication Law and Policy, Winter 2002/2003, available in PDF at: http://www.ijclp.org, p. 40.
Under Section 1201 of the U.S. DMCA, the separation between anti-circumvention protection (named even “paracopyright”) and copyright protection is clearly demonstrated by the creation of strict exemptions to circumvention bans: see §1201, letters from (d) to (j). See Dusollier, Droit d’auteur et protection des oeuvres dans l’univers numérique. Droits et exceptions à la lumière des dispositifs de verrouillage des oeuvres, Larcier, Bruxelles, 2005, pp. 196–201; Nimmer, ‘A Riff on Fair Use in the Digital Millennium Copyright Act’, (148) University of Pennsylvania Law Review 2000, p. 673, at pp. 701–702.
See Gasser and Girsberger, ‘Transposing the Copyright Directive’, op. cit., p. 17; and Braun, ‘The Interface Between the Protection of Technological Measures and the Exercise of Exceptions to Copyright and Related Rights: Comparing the Situation in the United States and the European Community’, (25) EIPR 2003, p. 496, at p. 499.
See Article 6(2) of the Proposal for a European Parliament and Council Directive on the harmonization of certain aspects of copyright and related rights in the Information Society, COM (97) of 10 December 1997, OJ, C 108, 7.04.1998, 6.
See Hugenholtz, ‘Why the Copyright Directive is Unimportant’, op. cit., p. 499.
See the Common Position (EC) 48/2000 of 28 September 2000, OJ C 344, 1.12.2000, 1.
See Dusollier, Droit d’auteur et protection des oeuvres dans l’univers numérique, op. cit., p. 161, who reminds us of the attempt of several amendments coming from the Parliament to extend the restrictive position adopted with regard to digital private copying to all other exceptions. As pointed out by the author, under Recital 27 of the Directive Proposal, it was established that exceptions such as private copying and remuneration schemes “should not inhibit the use of technological measures.”
See Dusollier, Droit d’auteur et protection des oeuvres, op. cit., pp. 162–63.
See Gasser and Girsberger, ‘Transposing the Copyright Directive’, op. cit., p. 12.
Ibidem, p. 13.
Ibidem, p. 15.
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(2008). Copyright harmonisation according to technological dictates. In: EU Digital Copyright Law and the End-User. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-75985-0_3
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