RESEARCH HANDBOOK ON THE FUTURE OF EU COPYRIGHT potx

15 Collective management of copyright and related rights: achievements and problems of institutional efforts towards Maria Mercedes Frabboni Valérie Laure Benabou 22 Do whiffs of misappr

EU COPYRIGHT

RESEARCH HANDBOOKS IN INTELLECTUAL PROPERTY

Series Editor: Jeremy Phillips, Intellectual Property Consultant, Olswang,

Research Director, Intellectual Property Institute and co-founder, IP Kat weblog

Under the general editorship and direction of Jeremy Phillips comes thisimportant new Handbook series of high quality, original reference works thatcover the broad pillars of intellectual property law: trademark law, patent lawand copyright law – as well as less developed areas, such as geographical indi-cations, and the increasing intersection of intellectual property with otherfields Taking an international and comparative approach, these Handbooks,each edited by leading scholars in the respective field, will comprise speciallycommissioned contributions from a select cast of authors, bringing togetherrenowned figures with up-and-coming younger authors Each will offer awide-ranging examination of current issues in intellectual property that is unri-valled in its blend of critical, innovative thinking and substantive analysis, and

in its synthesis of contemporary research

Each Handbook will stand alone as an invaluable source of reference for allscholars of intellectual property, as well as for practising lawyers who wish toengage with the discussion of ideas within the field Whether used as an infor-mation resource on key topics, or as a platform for advanced study, theseHandbooks will become definitive scholarly reference works in intellectualproperty law

Titles in the series include:

Copyright Law

A Handbook of Contemporary Research

Edited by Paul Torremans

Trademark Law and Theory

A Handbook of Contemporary Research

Edited by Graeme Dinwoodie and Mark D Janis

Patent Law and Theory

A Handbook of Contemporary Research

Edited by Toshiko Takenaka

Research Handbook on the Future of EU Copyright

Edited by Estelle Derclaye

Research Handbook on the Future of EU Copyright

© The Editor and Contributors Severally 2009

All rights reserved No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher Published by

Edward Elgar Publishing Limited

Edward Elgar Publishing, Inc.

William Pratt House

9 Dewey Court

Northampton

Massachusetts 01060

USA

A catalogue record for this book

is available from the British Library

Library of Congress Control Number: 2008937416

ISBN 978 1 84720 392 2

Typeset by Cambrian Typesetters, Camberley, Surrey

Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall

List of contributors vii

Estelle Derclaye

1 Copyright without frontiers: the problem of territoriality in

Ramón Casas Vallés

6 From idea to fixation: a view of protected works 133

Antoine Latreille

Yves Gaubiac, Brigitte Lindner and John N Adams

8 Authorship, ownership, wikiship: copyright in the 21st century 193

13 The issue of exceptions: reshaping the keys to the gates in the

territory of literary, musical and artistic creation 317

Marie-Christine Janssens

14 Private copy levies and technical protection of copyright:

the uneasy accommodation of two conflicting logics 349

Séverine Dusollier and Caroline Ker

v

15 Collective management of copyright and related rights:

achievements and problems of institutional efforts towards

Maria Mercedes Frabboni

Valérie Laure Benabou

22 Do whiffs of misappropriation and standards for slavish

Anselm Kamperman Sanders

23 Access to knowledge under the international copyright regime,

the WIPO development agenda and the European Communities’

Henning Grosse Ruse-Khan

Estelle Derclaye

vi Research handbook on the future of EU copyright

John N Adams, Professor Emeritus University of Sheffield, Adjunct

Professor University of Notre Dame, Barrister at Law

Tanya Aplin, Reader in Intellectual Property Law, King’s College London Valérie Laure Benabou, Director of the DANTE Laboratory, Professor,

Law and Co-Director of the Art Law Centre, University of Geneva

Séverine Dusollier, Professor, University of Namur

Maria Mercedes Frabboni, Queen Mary, University of London

Yves Gaubiac, Attorney, Kimbrough & Associés, Lecturer, University

Pantheon-Assas, Paris 2, University of Evry Val d’Essonne, General Secretary

of International Literary and Artistic Association (ALAI), Editor in Chief ofthe Revue Internationale du Droit d’Auteur (RIDA)

Christophe Geiger, Associate Professor, Director of the Centre for

International Industrial Property Studies (CEIPI), the University of Strasbourg

Willem Grosheide, Professor of Intellectual Property Law, Molengraaf

Institute for Private Law/Centre for Intellectual Property Law (CIER),University of Utrecht

Henning Grosse Ruse-Khan, Senior Research Fellow, Max Planck Institute

for Intellectual Property, Competition and Tax Law, Munich

Lucie Guibault, Senior Researcher, Institute for Information Law (IViR),

University of Amsterdam

vii

P Bernt Hugenholtz, Professor of Intellectual Property Law, University of

Amsterdam, and Director, Institute for Information Law (IViR)

Marie-Christine Janssens, Professor of Intellectual Property Law, Catholic

University of Leuven

Pascal Kamina, Associate Professor (Maître de conférences), University of

Poitiers, Attorney, Paris Bar

Anselm Kamperman Sanders, Professor of Intellectual Property Law,

Maastricht University, Academic Director of the IEEM Intellectual PropertyLaw School, Macau

Caroline Ker, Assistant and Researcher, Centre of Research in Computer and

IT Law (CRID), University of Namur

Antoine Latreille, Professor, Université Paris-Sud 11, Co-director of the

research centre CERDI and of the Master DI2C

Matthias Leistner, Professor of Civil Intellectual Property Law and

Competition Law and Director of the Institute for Commercial Law,University of Bonn

Brigitte Lindner, Rechtsanwältin, Registered European Lawyer, Serle Court,

London

Ansgar Ohly, Professor of Private Law and Intellectual Property Law, the

University of Bayreuth

Jeremy Phillips, Intellectual Property Consultant, Olswang; Editor, Journal

of Intellectual Property Law & Practice (OUP); Professorial Fellow, QueenMary Intellectual Property Research Institute; co-blogmeister, The IPKatweblog (www.ipkat.com)

Antoon Quaedvlieg, Professor of Law, University of Nijmegen

Andreas Rahmatian, Lecturer in Law, University of Leicester

Paul Torremans, Professor of Intellectual Property Law, School of Law,

University of Nottingham, Professor of Private International Law, Faculty ofLaw, University of Ghent

viii Research handbook on the future of EU copyright

European Court of Justice

Advocaten voor de Wereld Case

Booker Aquaculture Ltd, Hydro

Seafood GSP Ltd and the

Scottish Ministers Joined Cases

British Horseracing Board and

Others v William Hill

EMI-Electrola GmbH v Patricia

Imund Export Verwaltungs gesellschaft mbH et al Case341/87 ECR [1989] 79 18, 222

-Fixtures Marketing Ltd v

Organismos prognostikon agononpodosfairou AE (OPAP) Case C-444/02, Grand Chamber 9 Nov

Fixtures Marketing v Svenska Spel

Lagardère Active Broadcast v

Société pour la Perception de la

rémunération équitable (SPRE)

and Others Case C-192/04 14

Lucazeau (François) and others v

Société des Auteurs,

Compositeurs et Editeurs de

Musique (SACEM) and others

Joined Cases 110, 241 & 242/88

[1989] ECR 2811 381

Mag Instrument, re Case C-136/02P

ECR I-9165 511

Magill case see Radio Telefis

Eireann and others v Commission

and Magill TV Guide

Mediakabel v Commissariat voor de

Media Case C-89/04 [2005] ECR

Musik-Vertrieb Membran v GEMA

Joined Cases C-55 & 57/80[1981] ECR 147 222

Nokia v Wärdell Case C-316/05 279

Nold Case 4/73 [1974] ECR 491 31, 38

OPAP case see Fixtures Market Ltd

Peek & Cloppenburg KG v Cassina

SpA Case C-456/06, 17 Apr

2008 221

Phil Collins v Imtrat Joined Cases

C-92 & 326/92 [1993] ECR I-5145 230, 257–8, 270

Philips/Remington Case C-299/99[2002] ECR I-5475 491, 496,

497, 500, 501, 503, 511

Promusicae v Telefonica de

Espana Case C-275/06 29 Jan

2008 333

Radio Telefis Eireann and others v

Commission and Magill TVGuide (Magill) Case C-241 &242/91 P [1995] ECR I-743 43,

Schawe v Sächsisches Druck- und

United Brands case 559

Volvo AB v Erik Veng (UK) Ltd

Court of First Instance

Micro Business Leader v Commission

Commission Decisions

Cannes Extension Agreement 4 Oct

2006 – COMP/C2/28.681 386

GEMA [1971] OJ L134/15, [1971]CMLR D35 312, 379

IFPI Simulcasting 2003/300/EC 8Oct 2002 OJ L107/62 24, 381

Santiago Agreement –COMP/C2/38126 OJ C200/11 25

European Court of Human Rights Anheuser Busch Inc v Portugal

Smith Kline and French Laboratories

Ltd v The Netherlands Appln

No 12633/87, 66 DR 70, 79(1990) 29, 32, 148

Sporring and Lönroth v Sweden A52

(1982) 148

WTO Appellate Body

India – Patent Protection forPharmaceutical and AgriculturalChemical Products,

WT/DS50/AB/R, 17 Dec 1997

580

US – Countervailing Duties oncertain Corrosion-ResistantCarbon Steel Flat Products fromGermany, WT/DS213/AB/R, 28Nov 2002 580

US – Import Restrictions of CertainShrimp and Shrimp Products,WT/DS58/AB/R 580, 589

US – Measures Affecting the

Cross Border Supply of

Gambling and Betting Services,

WT/DS285/AB/R, 7 Apr 2005

590

US – Standards for Reformulated

and Conventional Gasoline,

WT/DS2/AB/R, 29 Apr 1996

580, 589

WTO Dispute Settlement Body

IMRO case Doc WT/DS 160/R 322

WTO Panel Report

Canada – Patent Protection of

Pharmaceutical Products,

WT/DS114/R, 17 Mar 2000 579,

588

European Communities – Protection

of Trademarks and Geographical

Indications for Agricultural

Products and Foodstuffs,

Data Access Corporation v

Powerflex Services Pty Ltd

456, [1991] GRUR Int 920

465

Case 4 Ob 44/92 16 June 1992[1994] European Comm Cases

526, [1994] IPRax 380 466

Oberlandesgericht Graz Judgment of

6 Dec 1990 [1991] GRUR Int

386 465

Oberlandesgericht ViennaJudgments of 30 Nov 1989[1990] GRUR Int 537 466

Oberlandesgericht ViennaJudgments of 27 Jun 1991 [1991]GRUR Int 925 466

Belgium Google Inc v Copiepresse SCRL

[2007] ECDR 5 228

Supreme Ct 25 Sep 2003 [2004] A

& M 29 45

Benelux Court of Justice

Adidas Three Stripes 23 Dec 1985,Case A 83/4 [1987] GRUR Int707–11 508

xii Research handbook on the future of EU copyright

Superconfex/Burberry’s

(Burberry’s I) Case A 87/8

[1990] GRUR Int 863 508, 509

Burberry’s/Bossi (Burberry’s II) 16

Dec 1991, Case A90/4 [1992]

Tele-Direct (Publications) Inc v

American Business Information

Anne Bragance v Olivier Orban and

Michel de Grèce, CA Paris 1 Feb

Bruce Springsteen Autobiography,

Paris (4e Chambre) 28 Feb 2007

de Lalande, TGI Nanterre, 19 Jan

2005, RIDA 207 115

Dimitri Busuioo Ionesco v Sté Metro

Goldwyn Mayer and Sté RomaniaFilms, TGI Paris 14 Feb 1977(1978) 97 RDA 179 471, 472

Doyen v Parnaland, Trib of First

Instance of Seine, 10 Feb 1905;Paris CA 10 Nov 1909 78

France Télécom c/ Lectiel etGroupeadress Cass Com 4 Dec

2001, CE 29 Jul 2002 559

Huston (John) case (colorization)TGI Paris 23 Nov 1988; CA Paris 6 Jul 1989; Cour deCassation 28 May 1991, RIDA

La Recouvrance, Cour d’Appel

de Rennes, 7 Sep 2004 111, 127

La Totale, Cour de Cassation, 1st civ

ch 5 July 2006 136

Lacan, TGI Paris, 11 Dec 1985 141

Lancôme v SA Argeville

Aix-en-Provence, Ct of Appeal 13 Sep

2007 142

Les Misérables – sequel, Cour de

Nejla Bsiri-Barbir/Soc Haarman et

Reimer, Cass civ 13 June 2006

SA Beauté Prestige International v

Sté Senteur Mazal (2008) 39 IIC

113 58, 68

SA Galba Films v Friedman, Sarl

Capital Films, Pernot and

Société Les Fils La Boétie

(1975) 83 RIDA 106, on appeal

Léopold Friedman v SA Galba

Films (1976) 88 RIDA 115

469

SA Prline v SA Communication &

Sales and SAL News Investment

[2002] ECDR 2 66

Salvador Dali – Photographs, Paris

(4e Chambre) 27 Jan 2006, RIDA

210, Oct 2006 113

SARL La Rosa v Sté Almax

International SPA CA Paris

[1992] La Semaine Juridique

21780 474

SISRO, Cour de Cass 5 Mar 2002

[2002] 34 IIC 701 314

Soc Toho Cy Ltd v Soc Film d’art et

Soc Prodis, CA Paris (1961) 33

RIDA 112 474

Société Fox-Europa v Société Le

Chant du Monde (1960) 28 RIDA

120 459

Société Tigest Sarl v Societe Reed

Expositions France [2002] ECC

29 66

Union Fédérale des

Consommateurs-Que Choisir v Sony France and

Sony UK TGI Nanterre (6echambre) 15 Dec 2006 535

Utrillo, Paris District Ct (3rdChamber, 23 Feb 1999) 184 RIDA

374 (2000); Paris Ct of Appeals(4th Chamber, 30 May 2001) 191RIDA 294 (2002); Supreme Ct (1stCivil Chamber, 13 Nov 2003)[2004] 35 IIC 716 44, 45

Vincent v Cuc Software 94

Williams Electronics, Cass Ass plen

7 Mar 1986 [1986] JCP II,

20631 94

COUR DE CASSATION1re Civ 1 Jul 1970 293

[1971] Revue Critique de DroitInternational Privé 270 471

1re civ 13 Nov 1973 293

1st Civil Division, 30 Jan 2007, 38

IIC 736 (2007) 48

27 Feb 2007 152

COUR D’APPEL

Caen 6 Oct 2006 127

Lyon 1 Apr 2004 and Cour de

Cassation (Comm ch) 4 July

TGI Bobigny 28 Nov 2006 142

TGI Paris 21 Sep 1983 (1984) 120

RIDA 156 471

TGI Paris 26 May 1987 137

TGI Paris, 3e ch, 8 Sep 1998

(1999), RIDA, no 181, 318,

affirmed, Paris 4e ch, 28 Apr

2000, Com com électr 2000,

comm no 86 94

TGI Paris 2 Oct 2001 145

Toulouse District Ct 26 Sept 2001,

EROC III, BGH 10 Oct 2002 [2002]IIC 702 306

Folgerecht bei Auslandsbezug (JosephBeuys) BGH [1994] GRUR 798(1995) 26 IIC 573 230

Gedichttitelliste II, 24 May 2007,[2007] GRUR 688–90 431, 440,

441, 442

Holzhandelsprogramm, 20 Jan

1994 123

Inkasso-programm, 9 May 1985[1985] GRUR 1041 (1986) 17IIC 681 65, 120, 123, 197, 294,

Mikrokopien, BGH 24 Jun 1955[1955] GRUR 546 350

OEM-Versionen, BGH [2001]GRUR 153 223

Paperboy, BGH GRUR 2003, 958,[2004] IIC 1097 228

Wagner Familienfotos;

Schricker-Katzenberger OLG Hamburg

OLG Hamburg 1 Nov 2001 504

OLG Karlsruhe 1 Oct 1996, 6 U40/95 424

LG Berlin 12 Dec 1960 Maifeiern[1962/04] GRUR 207 533

LG Berlin 28 Nov 2006 [2007]

LG Köln 8 May 2002 28 O 180/02,[2002] MMR 689 432

Scrolls case) Sup Ct 30 Aug

2000 116

Netherlands Algemeen Dagblad et al v Eureka

Internetdiesten, Rotterdam Dist Ct 22 Aug 2000 [2002]

Boycott Outspan Aksie Hof,Amsterdam 30 Oct 1980, [1981]

NJ no 422 533

BREIN v Techno Design,

Amsterdam CA, 15 Jun 2006[2006] ECDR 21 228

Buma v KaZaA, Sup Ct Case

Davidoff/Cigaronne, Dist Ct of TheHague 22 Dec 2004, [2005] BIE

no 87, 430–37 507

xvi Research handbook on the future of EU copyright

De NV Drukkerij ‘de Spaarnestad’

Fatboy bean-bag, Pres Dist Ct of

The Hague 30 Sep 2005 and Dist

Ct of Den Bosch 6 Jun 2007

Stokke Industries/Jako Trade

en Hauck, Dist Ct of The Hague

4 Oct 2000 [2001] BIE 363

504

Technip Benelux BV v Arier

Gerhard Goossens (2007) 38 IIC

615, Sup Ct 72, 493

Tomado, 12 Jun 1970, [1970] NJ

343 573

United Feature Syndicate Inc v

Van der Meulen Sneek BV[1990] Bijblad IndutriëleEigendom 329 461

Van Dale Lexicografie BV v

Rudolph Jan Romme, Sup Ct 4Jan 1991 [1991] NJ 608; CA The Hague 1 Apr 1993 [1994]

Rotterdam Court of First Instance,

22 Aug 2000 [2000] Mediaforum

344 434

Tribunal of The Hague 2 Mar

2005 329

Olssons Links Sup Ct 15 Jun 2000,

B 413-00, [2001] GRUR Int

TV4 AB v Claes Eriksson and

Vilgot Sjöman Sup Ct 18 Mar

572, HL 178, 500

Ashdown v Telegraph Group Ltd 18

July 2001, [2001] EMLR 44 46

Baigent v Random House Group Ltd

(Da Vinci code) High Ct,Chancery Div 2006 137

Barker Motion Co v Hulton (1912)

Breville Europe plc v Thorn EMI

Gilbert O’Sullivan v Management

Agency and Music [1985] QB

c.s v Dallas (1982) FSR 52

[1983] GRUR Int 946 505

Hodgkinson & Corby Ltd and Roho

Inc v Wards Mobility Services

Kabushiki Kaisha Sony Computer

Entertainment Inc et al v Ball

et al [2004] EWHC 1738, ChD 416, 425

HL 65, 288, 289

Landor & Hawa International Ltd v

Azure Designs Ltd [2006] EWCACiv 1285, CA 501

Mogul Steamship Co v McGregor

Gow & Co (1889) 23 QBD 598

569

National Provincial Bank v

Ainsworth [1965] AC 1175 291

Navitaire Inc v Easyjet Airline Co

Novello & Co Ltd v Hinrichsen

Edition Ltd and Another [1951] 1

Performing Rights Society Ltd v

London Theatre of Varieties Ltd

[1924] AC 1 300

Purefoy v Sykes Boxall (1955) 72

RPC 89 289

Reed Executive plc and Reed

Solutions plc v Reed Business

Information Ltd, Reed Elsevier

(UK) Ltd and Totaljobs.com Ltd

Sony Computer Entertainment Inc v

Paul Owen and others [2002]

Thrustcode Ltd v WW Computing

Ltd [1983] FSR 502 51

Ultraframe (UK) Ltd v Eurocell

Building Plastics Ltd, EurocellProfiles Ltd [2003] EWCA Civ

1805 186

University of London Press v

University Tutorial Press [1916]

Burrow-Giles Lithographic Co v

Sarony 111 US 53 (1884) 112

Corcovado Music Corp v Hollis

Music 981 F 2d 679 (2d Cir1993) 477

eBay Inc v MercExchange LLC 126

S Ct 1837 (2006) 278–9

Data Gen Corp v Grumman Sys

Support Corp 36 F 3d 1147 (1stCir, 1994) 544

Diamond v Chakrabarty 447 US 303

(1980), 100 S Ct 2204, 65 L Ed2d 144, 206 USPQ 193 568

xx Research handbook on the future of EU copyright

Edison v Lublin 122 Fed 240 (CCA

Sony Corp of America v Universal

City Studios Inc 464 US 417(1984) 611

Stern Electronics v Kaufman

669 F 2d 852 (2nd Cir, 1982)

855 75

Trade Mark Cases 100 US 82 (1879) 112

US v IBM (filed in District Ct

17 Jan 1969, withdrawn 8 Jan1982) 401

Williams Electronics v Artic

International 685 F 2d 870 (3rdCir, 1982) 874 75

Estelle Derclaye

Several things prompted the idea for this book in Autumn 2006 First, it was

15 years since the EU had started harmonising copyright law If we include theCommunity courts case law, harmonisation – albeit indirect – dates back to

1971 with Deutsche Grammophon1the first decision in the field of copyrightwhich, in a groundbreaking way not only decided that copyright was withinthe competence of the Community but also that in the context of the freemovement of goods and services, an end should be put to protectionism bycreating the concept of European exhaustion Second, the Commission’sharmonisation plans in the field of copyright had recently come to a standstill,

as no proposal had been launched since the Resale Right Directive or theHorizontal Enforcement Directive.2 Third, I was also aware of the Wittemproject, which gathers a group of renowned copyright academics who reviewall areas of copyright law with the aim of drafting a European copyright code.3

In the light of this initiative and with the – admittedly ambitious – aim of encing European copyright policy, I wanted the book not only to take stock but

3 Which Bernt Hugenholtz mentions in his contribution (Chapter 1) At the time

of writing this introduction, the group had just finished writing its draft code.

also to question what the future of EU copyright should be, by answering

questions such as: what went wrong with the harmonisation acquis? What did

the Directives do well? Should copyright be further harmonised? To that end,not only did I wish to invite contributions from recognised European copyrightscholars but I also wanted to have the views of experts from as many differentMember States as possible to give a truly European, and therefore hopefullybalanced outlook Finally, I thought the book would also be timely and useful

as, apart from the usually three-yearly (and also generally short) reports from theCommission on each Directive, there had not yet been a comprehensive and crit-ical examination of the European Union’s harmonisation work and lack thereof.4Against this backdrop, the method followed in the book is as follows Eachcopyright issue (subject-matter, originality, duration, rights, defences, etc.) isanalysed by a different European copyright expert, who gives a critical account

of the EU harmonisation done on it (or lack thereof) and explores whetherfurther harmonisation is desirable or not The aim of this introduction is to givereaders a snapshot of the chapters that will help map out their reading

In the first chapter, Bernt Hugenholtz highlights that despite the impressive

harmonisation work done by the European Commission, the territorial nature

of copyright fundamentally undermines it, even though the Directives havecertainly brought the national copyright laws closer and they are now in manyrespects therefore very similar He notes however that the territorial nature ofcopyright arguably preserves cultural diversity as well as price discriminationwithin the Union, although the latter arguably goes against the achievement ofthe internal market Hugenholtz therefore advocates the introduction of aCommunity Copyright Regulation in the vein of the Community Trade Markand Design Regulations, but one that would pre-empt national copyright lawsand therefore go further than the latter two regulations

Christophe Geiger looks at the relationship between copyright and human

rights Human rights are part of the European framework through the tion within the EU of the European Convention on Human Rights (ECHR) andthe recent integration of the Charter of Fundamental Rights of the EuropeanUnion by the Lisbon Treaty, and the ECHR has recently clearly ruled thatintellectual property rights (IPR) are human rights Therefore, the EuropeanCourt of Justice (ECJ) and national courts have started balancing copyrightwith other human rights Geiger reviews these developments in the case law

applica-2 Research handbook on the future of EU copyright

4 See, however, the very useful commentary on copyright Directives by Dreier

and Hugenholtz, supra n 2 and the study commissioned by DG Internal Market and

drafted by IVIR (P.B Hugenholtz et al.) ‘The recasting of copyright and related rights for the knowledge economy’, no etd/2005/im/d1/95, 2006, available at http://www.ec europa.eu/internal_market/copyright/docs/studies/etd2005imd195recast_report_2006 pdf.

and welcomes them, as they may be a way to curtail excesses in copyrightprotection It can be added that in addition to fundamental rights, the theories

of abuse of rights and competition law are also remedies against a sometimesoverarching copyright

Tanya Aplin shows that the current harmonisation in respect of

subject-matter, which boils down to software and databases, is satisfactory The nition of database is a good example of working harmonisation and eventhough there is no definition of computer program, such absence does notseem to have caused problems She also argues that such a definition is notnecessary in view of the obsolescence of technological definitions MemberStates have generally correctly implemented the Directives, despite a fewhiccups, notably in the United Kingdom Tanya Aplin rightly points out thatthe major dilemma if harmonisation of subject-matter is undertaken is whether

defi-to adopt an open or closed list of works, in other words defi-to choose between the

droit d’auteur or copyright approach After considering the advantages and

disadvantages of both approaches, she favours a judicial rather than legislativeapproach

The protection of audiovisual works and first fixations of films is complexand has been specifically harmonised in Europe It therefore deserved a sepa-rate chapter After putting the issue into context by retracing, in a detailed

account, the history of film protection, Pascal Kamina notes that, despite the

absence of definition of cinematographic or audiovisual work in theDirectives, the national definitions are close, except for the United Kingdom.The current differences in protection are thus caused by the different notions

of originality rather than the definition of the subject-matter He also drawsattention to the fact that the current British regime, which does not provide for

a separate category for audiovisual works, in many ways breaches theDirectives More fundamentally, he questions the necessity for the currentdouble protection (both for audiovisual works and for the first fixation offilms) to encourage film production in view of the fact that most of the timefilm producers in practice hold both copyrights

Moving on to protection requirements, Ramón Casas Vallés paints a

colourful picture of originality An interesting aspect is the fact thatphotographs can still be protected by copyright and ‘sub-copyright’ in certaincountries like Spain and Germany This can create a tendency to construe ‘theauthor’s own intellectual creation’ higher in those countries than in thosewhere photographs are protected only by copyright He proposes to harmonise

by applying the current Community concept of originality to all works andconcludes that though it may only be a symbolic move, it would still representsome progress as all national courts would be bound by it

The idea/expression dichotomy is by definition harmonised because of theTRIPs agreement and was in any case already a well-established concept in all

Member States before the European harmonisation work began On thecontrary, and as is well known, the requirement of fixation has been left unhar-monised both in the EU and in the Berne Convention (see art 2(2) of the

latter) As Antoine Latreille explains, despite the fact that fixation is an area

where the copyright and author’s right systems completely diverge, there is noneed for harmonisation as, in practice, having or not having the requirementdoes not make a difference At the end of the day, if the work is not fixed insome way, the author will have considerable difficulties proving its copyrighthas been infringed and having no way of enforcing his or her copyright will ineffect lead to the same practical result as having no copyright at all In addi-tion, and perhaps most importantly, in both British and continental copyright,

if someone other than the author fixes the work, it does not give that personthe copyright in it, and in order to commercialise the work, the ‘fixator’ willalways need the author’s permission as the fixator will inevitably need toreproduce or communicate it to the public

Next, Yves Gaubiac, Brigitte Lindner and John Adams give a

comprehen-sive view of the British, French and German copyright provisions on the tion of copyright Their contributions reveal that despite the sweepingharmonisation of the term in Directive 93/98/EEC, some idiosyncrasies stillsubsist between countries For instance, the heirs of French authors who diedfor their country during the war obtain a further 30 years after the 70 yearsterm p.m.a When Germany reunited, the legislator allowed the revival ofprotection for works created in the German Democratic Republic (GDR)(which only had a 50 p.m.a term) and similarly for related rights (whichgenerally only benefited from a 10-year term in the GDR) In the UK, someunpublished works seem to always enjoy perpetual copyright

dura-Rather than sketching an overview of the Community provisions on ship and ownership, which would have been very brief and would have led tothe conclusion that harmonisation is quasi-nonexistent,5 Jeremy Phillips

author-prefers to ask whether the EU should or should not deal with the authorshipand ownership issues of a new kind of work, the ‘wiki’, a term used to collec-tively designate platforms such as Wikipedia He argues that such platforms

may often be copyright and/or sui generis right-protected databases Maybe,

he argues, such a new situation will trigger harmonisation concerns from the

EU, if not the international organisations, mainly because the law applicable

to these collective efforts will often be very difficult to determine as the authors will generally be located in several countries

co-4 Research handbook on the future of EU copyright

5 Perhaps the most notable harmonisation is art 2.3 of the Software Directive which grants the economic rights of the employee to the employer See also art 2 of the Term Directive in relation to cinematographic works.

Ansgar Ohly provides a clear and concise snapshot of economic rights,

which questions the sometimes misconceived belief that they are fullyharmonised Their vagueness makes them intrinsically flexible concepts,which, as he notes, is an advantage in view of constant technological devel-opments which render rigid concepts quickly out of date, but on the otherhand, bad for harmonisation purposes But the fact that almost all economicrights (apart from adaptation and public performance) are harmonised tomake them Community concepts is a good thing as inevitably the ECJ willcarry on, case-by-case, the harmonisation work of the EU legislative bodies,which it has already done in a number of recent and interesting cases.6Another criticism is that economic rights have been harmonised bit by bit invirtually all seven Directives and therefore, no clear picture of the rightsemerges So he argues that it would be better for legal certainty to codifythem, as well as other aspects such as authorship and ownership, exceptions,exhaustion and duration Secondary liability is not harmonised but as AnsgarOhly rightly notes, it may be more difficult to harmonise as in many MemberStates, this touches upon tort law, an area of debatable Community compe-tence.7

Willem Grosheide puts moral rights in a historical perspective, looking not

only at copyright but also at human rights conventions before consideringwhether it is right for the EU not to consider harmonising moral rights Hedraws attention to some of the many aspects of moral rights which remainunharmonised and which definitely may cause distortions of the internalmarket Without adjudicating upon this issue, he concludes that it is definitelyone that needs to be further researched Writing specifically on the right of

integrity, Jacques de Werra convincingly argues that it may be very useful to

harmonise some of its aspects Among other things, waiver provisions, whichdiffer widely throughout Europe, may cause problems in light of internalmarket objectives The issue is strongly linked to private international law andcould also be resolved this way Beyond harmonisation, the future of theintegrity right probably lies in the behaviour of artists themselves By notabusing their rights, they will send the right signal for the stronger recognition

of their moral rights and respect by users and courts alike Courts could alsohelp harmonisation indirectly by looking at each other’s case law

Like moral rights, licensing and assigning rights in copyright works

6 See e.g ECJ, 7 December 2006, case C-306/05, SGAE v Rafael Hoteles SL,

remains completely unharmonised.8As Andreas Rahmatian shows,

harmonis-ing licences and transfers would be very difficult because it mainly concernsnational private laws (contract laws) As he notes, if the EU decided to legis-late on this aspect of copyright laws, ‘it would need to go to the core of theauthor’s right/copyright division if it were to make a substantive impact’, asthe two systems diverge quite substantially It would also, for him, be a poorpretext for advancing broader legal unification projects In respect of the firstand third findings, this topic bears similarities to the liability for secondaryinfringement

Moving on to exceptions, Marie-Christine Janssens chooses to concentrate

on the flaws of the InfoSoc Directive, as this is where the EU might have toact most urgently Whilst a positive aspect of the Directive is that a majority

of Member States have actually added some new exceptions to their tive national laws, her main criticism is the ‘pick and choose’ nature of article

respec-5 (except respec-5.1), which fell short of the harmonisation purpose of any Directive.She proposes a middle way between a general fair use exception, which wouldengender even more legal uncertainty, and a close and exhaustive list ofexceptions, which is too rigid Instead, ‘a system that combines a list ofmandatory exceptions, some of which are given imperative character, with anexhaustive list of optional provisions coupled to a “window provision” ’ seems

to be the best way to ally legal certainty and clarity and a certain amount offlexibility in view of technological developments to come The window provi-sion would not act strictly as a fair use type provision but rather would allowstates to respond to national societal developments or take into accountcultural policy

The protection of technological protection measures (TPMs) as such hasbeen left out of this book on purpose as a lot has already been written else-where and a chapter on this topic would for the most part have reiterated thosewritings.9Rather, I thought it would be more interesting to concentrate on anew and as yet rather unexplored territory, the relationship between TPMs and

levies for private copying Séverine Dusollier and Caroline Ker sketch a

thor-ough and clear description of the phasing-out of levies and the relation withthe use of TPMs In sum, the problem is that if TPMs prevent copies of works,

6 Research handbook on the future of EU copyright

8 See however the imperative provisions of the Software Directive (art 9.1) and Database Directive (art 15) and Lucie Guibault’s contribution in this book (Chapter 20).

9 For recent books on this topic, the reader is referred to S Dusollier, Droit d’auteur et protection des oeuvres dans l’univers numérique, Brussels: Larcier, 2nd ed., 2007; P Akester, A Practical Guide to Digital Copyright, London: Sweet & Maxwell, 2007 and E Derclaye, The Legal Protection of Databases, A Comparative Analysis, Cheltenham, UK and Northampton, MA: Edward Elgar, 2008.

levies should not be collected as the user will have paid, depending on thecase, either for a copy s/he is not entitled to make or twice for the same copy.The authors demystify the idea that the phasing-out rule means that levysystems must now be dismantled In fact, the InfoSoc Directive, where the rule

is contained, does not even favour TPMs over levy systems The issue is fore how to organise the co-existence of the two systems They propose orig-inal solutions to this very technical area, mainly based on the meaning ofprivate copying and the concept of ‘normal use’ and the possibility of conse-crating the latter as a new general exception.10In short, the preliminary ques-tion to ask oneself is: is this act a private copy or not? Accordingly, a levyshould not be set for copies based on normal use of the work since there is noharm to the copyright holder (as arguably they are not strictly speaking privatecopies)

there-Linked to the previous topic is the general issue of the collective

manage-ment of copyright and related rights Maria Mercedes Frabboni shows that

some harmonisation in this area has been achieved in two ways, although itremains generally a largely unharmonised field A first and primary way ofharmonisation is through litigation on the basis of competition law, as collect-ing societies have by nature dominant positions in their respective countries.The other is through legislative instruments These regulatory initiatives whichaim to harmonise only some aspects of the working mechanisms of collectingsocieties are more recent and so far remain embryonic The idea is to have aDirective to bring together some aspects of collecting societies’ rules but only

in so far as it is necessary to the smooth functioning of the internal market.The next two chapters focus on the specific regimes created by the

Directives, namely the protection of computer programs and databases Jon Bing analyses in detail and in practical terms the provisions of the Software

Directive, giving important technical explanations and showing their legalconsequences His analysis thereby reveals the unproblematic (e.g originality,duration) and problematic areas (e.g the limitation to only one back-up copy,the exhaustion principle not applying to downloaded programs and updates),which should perhaps necessitate some modifications

The protection of databases shares a lot of similarities with that of software,

in the field of copyright As copyright issues are more traditional and forward,11Matthias Leistner concentrates on the most controversial aspects, which are mainly found in the sui generis right He starts with the, in our view,

straight-10 This concept is arguably not entirely new as it originates from the Software Directive (art 5.1) and was again used in the Database Directive (art 6.1).

11 Some of them are also dealt with in more depth in other chapters; see mainly Chapter 3 on subject-matter, Chapter 5 on originality and Chapter 9 on economic rights.

justified premise,12 that the sui generis right is ‘a more reliable, stable and potentially more balanced framework for the protection of investments’ in

gathering, verifying or presenting information into a database, than unfaircompetition and contract, which could have served as alternatives but which,being in vast part unharmonised and perniciously hard to harmonise, stillremain considerably dissimilar in the Member States His contribution there-

fore highlights the flaws (mainly the, albeit, rare cases in which the sui generis

right creates monopolies on information itself – the so-called sole source bases) and proposes solutions which consist in the main in a consistent andteleological application of the right (as already mostly done – and well – bythe ECJ) and of competition law and some chirurgical amendments to theDirective In addition, pre-emption of the unfair competition law tort of slav-ish imitation is necessary

data-The following chapters look at the relationship between copyright law andother laws, namely private international law (or conflict of laws), other intel-lectual property rights (such as designs and trade marks), contract law, compe-tition law and its cousin, unfair competition law

As Paul Torremans points out, private international law issues have not

been subject to the attention of the European legislature yet All we have is a

rule in relation to satellite broadcasting and Regulation 864/2007 (Rome II).

However, it is about time that such issues were tackled one way or another atEuropean or international level Even if ‘harmonisation’ already exists in partand indirectly, because, in order to respect the requirement for national treat-ment in the Berne Convention, to which all Member States are parties, thelatter have no real choice but to all adopt the law of the protecting country asthe rule of private international law in copyright law, with the exception ofsome aspects such as authorship and ownership, such ‘harmonisation’ isnecessary because the lack thereof does not do away with outstanding prob-lems

The overlaps or relationships between copyright and other intellectualproperty rights have so far remained untouched by the EU, at both legislative

and judicial level (with the exception of the Dior v Evora case) Although the

principle of cumulation is well established, it can have negative consequences

if one intellectual property right protects subject-matter that is specifically leftfree of protection by another intellectual property right To resolve this prob-

lem, Antoon Quaedvlieg proposes to apply the principle of the most significant

relationship used in private international law One has to turn to the function,the interest, that the particular intellectual property right protects; although, inpractice, applying this principle is not always easy Having set ‘the rule’, he

8 Research handbook on the future of EU copyright

12 For more, see E Derclaye, supra n 9.

first turns to the technical exclusion in copyright law, according to which nical subject-matter is the realm of patent and not copyright law However,some technical subject-matter (computer programs and industrial design) canalso be protected by copyright in addition to patents and designs, therefore

tech-‘regime conflicts’ can occur where the closest relationship rule may beapplied Next he answers the reverse question, which deals mainly with the

relationship between copyright and trade mark law: ‘do other regimes contain

safeguards which limit them in “overflowing” the domain of copyright anddoes the functional definition fulfil a role in this respect?’ Finally, he notesthat some questions remain as yet unanswered, such as whether trade mark lawshould supplement copyright protection after the expiration of the latter

Next, Lucie Guibault analyses the relationship between copyright and

contract law On the first relationship, that between authors and producers,there does not seem to be a problem between borders Most Member Stateshave similar laws on the topic, protecting the author directly or indirectly,generally or specifically (i.e inside the copyright law itself), through rulesprotecting the weaker party to the contract Even if there are, arguably, onlyslight differences, since there is nothing to indicate a problem, theCommission has decided to leave the matter untouched, until further dueanyway In addition, contract law is and, according to the Commission itself,still remains, the natural remit of the Member States and not the EU LucieGuibault enumerates other reasons why no harmonisation is arguably needed

As to the second relationship, that between producers and users, the EU hasalready harmonised it, but in a piecemeal fashion, namely rendering someexceptions in the Software and Database Directives imperative Adhesioncontracts are often used to annihilate copyright limits; thus the EU shouldcounter this problem which disturbs copyright’s intrinsic balance In her opin-ion, the best means is to make at least the exceptions and limits protectinghuman rights imperative

Compared with the previous two relationships, that between copyright andcompetition law can seem like an obvious one in view of the original goals ofthe EC and the monopoly that copyright can sometimes give Nonetheless, as

Valérie-Laure Benabou explains, it has not always been so, and for quite some

time, copyright has remained shielded from competition law’s impact In fact,the two fields still operate very much in isolation, although arguably they formpart of the same legal field and their relationship is increasingly studied Therelationship has been barely addressed in the copyright harmonisation work;rather it has been tackled case-by-case by the Community courts The extent

of competition law’s ‘intrusion’ inside copyright law, in the field not only ofrefusals to licence but also of pricing, is such that Valérie-Laure Benabouwonders whether there is not an abuse of competition rules on copyright.Copyright is different and therefore merits a different treatment rather than a

standard application of competition law A far better solution, among otherthings, would be to internalise the conflict as much as possible to avoid the

legal uncertainty and ex post solution that the application of competition law

competi-among other things, of unfair competition law Anselm Kamperman Sanders

argues that the lack of harmonisation of unfair competition law leads to anunwanted expansion of copyright law at least in some Member States andsubmits that there is an urgent need to consider the role of unfair competitionlaw as a supplementary, alternative or subsequent method of protecting works.The problem is acute as unfair competition law can be used to bypass thestricter requirements of not only copyright but other intellectual propertyrights, rendering the latter obsolete He gives certain examples from recent liti-gation to illustrate the problem

The book closes with the examination of the external relationships of the

EU in the field of copyright Henning Grosse Ruse-Kahn examines the EU’s

new external trade and copyright policy Despite article 7 of the Agreement onTrade Related Aspects of Intellectual Property Rights (TRIPs) requiring abalance between the rights of producers and those of users and although the

EU has recognised that the scope and intensity of intellectual property tion will vary depending on the level of a country’s development, the freetrade agreements it concludes with less developed countries generally requirenot only TRIPs compliance but additional commitments from those countries(so-called TRIPs-plus obligations) To show this, he takes the example of theEU’s agreement with African, Caribbean and Pacific countries in the field ofcopyright, which requires them for instance to comply with the WorldCopyright Treaty (WCT) Another problem is the current interpretation of thethree-step test which overly curtails the scope of the exceptions One way tosolve this is to interpret it in the light of article 7 of TRIPs

protec-Despite all the criticisms this book makes and the changes it proposes, itcannot be denied that the EU harmonisation work has overall been bothsweeping and useful Without the combined harmonisation efforts of theCommunity legislature and judiciary, European copyright law would be lessclear, less strong and less certain (one can imagine in what state EU law would

be if, for instance, exhaustion, rental and lending rights and the protection ofcomputer programs had not been harmonised) So the book is naturally dedi-cated to copyright harmonisation pioneers, within national and Communitylegislative and executive authorities, but also to the judges who sparked off,

10 Research handbook on the future of EU copyright

created or continued the harmonisation effort The book is also a call to usersand users’ groups to unite and counter the often too strong lobbies who distortcopyright law to the sole advantage of right holders May all the partiesconcerned continue the harmonisation work together ‘in the general(European) interest’.

Last but not least, this book would not have seen the light of day withoutthe enthusiasm of the contributors who responded to my invitation and to theever-helpful guidance and patience of the editors, Luke Adams and NepElverd, whom I warmly thank

Estelle DerclayeFebruary 2008

1 Copyright without frontiers: the problem of territoriality in European copyright law*

P Bernt Hugenholtz

Introduction

Since the 1980s the European Community has carried out an ambitiousprogramme of harmonisation of the law on copyright and related (neighbour-ing) rights, with the primary aim of fostering the Internal Market by removingdisparities between the laws of the Member States This programme hasresulted in no fewer than seven directives on copyright and related rights thatwere adopted in a 10-year interval between 1991 and 2001 While the sevendirectives have indeed created a measure of uniformity between the laws ofthe Member States, they have largely ignored the single most important obsta-cle to the creation of an Internal Market in content-based services: the territo-rial nature of copyright Despite extensive harmonisation, copyright law in theMember States is still largely linked to the geographic boundaries of sovereignstates Consequently, copyright markets in the European Union remain vulner-able to compartmentalisation along national borders Even in 2008 contentproviders aiming at European consumers need to clear rights covering some

27 Member States This clearly puts them at a competitive disadvantage à-vis their main competitors outside the Union, such as the United States.This chapter examines and criticises the territorial nature of copyright in thelight of the emerging European market for copyright-based services Itcommences with an overall description of the process of harmonisation thathas brought Europe its seven directives It then examines the rule of territori-ality, and goes on to discuss various existing legal doctrines that might miti-gate its detrimental effect on the Internal Market The chapter concludes bysuggesting a more radical solution to the problem of territoriality in Europeancopyright law, the replacement of national copyright norms by a truly uniformEuropean Copyright Law

vis-12

* Parts of this chapter were previously published in: P B Hugenholtz, M.M.M van Eechoud et al (Institute for Information Law), ‘The Recasting of Copyright & Related Rights for the Knowledge Economy’, Report to the European Commission, 2006.

The harmonisation of copyright and related rights in the EU

At present seven directives in the field of copyright and related rights are inplace in the European Union.1The first, on computer programs, was adopted

as early as 1991, while the most recent ones, dealing with copyright andrelated rights and artists’ resale rights respectively, date from 2001 Except forthe Enforcement Directive,2which was adopted in 2004 and deals with theenforcement of rights of intellectual property in general, no new directives inthe field of copyright have been adopted or introduced in recent years Thismight indicate a policy shift of the European Commission, which has the solecompetence to initiate harmonisation directives, towards ‘softer’ legislativeinstruments such as the Online Music Recommendation that was issued by theCommission in 2005.3

Harmonisation of the law of copyright and neighbouring (related) rights inEurope has occurred in two phases, marking different approaches and ambi-tions of the European legislature.4The ‘first generation’ directives have theirroots in the Green Paper on Copyright and the Challenge of Technology that

1 Computer Programs Directive (Council Directive 91/250/EEC of 14 May

1991 on the legal protection of computer programs, OJ L 122/42, 17 May 1991), Rental Right Directive (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 346/61, 27 November 1992), Term Directive (Council Directive

93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and

certain related rights, OJ L 290/9, 24 November 1993), Satellite and Cable Directive

(Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broad-

casting and cable retransmission, OJ L 248/15, 6 October 1993), Database Directive

(Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996

on the legal protection of databases, OJ L 77/20, 27 March 1996), Information Society Directive (Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain

aspects of copyright and related rights in the information society, OJ L 167/10, 22 June

2001), Resale Right Directive (Directive 2001/84/EC of the European Parliament and

of the Council of 27 September 2001 on the resale right for the benefit of the author of

an original work of art, OJ L 272/32, 13 October 2001).

2 Enforcement Directive (Directive 2004/48/EC on the enforcement of

intellec-tual property rights, OJ L 195/16, 2 June 2004).

3 Commission Recommendation 2005/737/EC of 18 October 2005 on tive cross-border management of copyright and related rights for legitimate online music services [On line Music Recommendation].

collec-4 J Reinbothe, ‘A Review of the Last Ten Years and a Look at What Lies Ahead: Copyright and Related Rights in the European Union’, paper presented at Fordham International IP Conference, April 2002, http://europa.eu.int/comm/internal_ market/copyright/documents/2002-fordhamspeech-reinbothe_en.htm [Reinbothe 2002].

was published by the Commission in 1988.5As stated in the Green Paper, ECintervention in the realm of copyright was required based on four ‘fundamen-tal concerns’ of the Community:

1 The need to create a single Community market for copyright goods andservices To this end legal barriers in the form of disparate copyright rulesthat might lead to market fragmentation and distortion of competition,were to be removed, and measures to defeat ‘audiovisual piracy’ were to

be introduced

2 The need to improve the competitiveness of the economy in copyrightgoods and services in the Community To this end a legal frameworkwould need to be established that would guarantee protection of intellec-tual property on a par with the law in the countries of the Community’smain competitors

3 The need to protect intellectual creation and investment produced in theCommunity against unfair exploitation by users in non-Member States

4 The need to limit the restrictive effects of copyright on competition,particularly in technology-related areas such as computer software andindustrial design To this end ‘due regard must be paid not only to theinterests of right holders but also to the interests of third parties and thepublic at large’.6

In the Green Paper the Commission identified six areas where ‘immediateaction’ by the EC legislature was supposedly required: (1) piracy (enforce-ment), (2) audiovisual home copying, (3) distribution right, exhaustion andrental right, (4) computer programs, (5) databases, and (6) multilateral andbilateral external relations

In the Follow-up to the Green Paper that was published by the Commission

in 1990,7 after holding extensive hearings with stakeholders, several tional areas of possible Community action were identified, including the dura-tion of legal protection, moral rights, reprography and artists’ resale rights, and

addi-a sepaddi-araddi-ate chaddi-apter waddi-as devoted to broaddi-adcaddi-asting-reladdi-ated problems In addi-anAppendix to the Follow-up paper a precise agenda of Community initiativeswas set out The agenda enumerated five proposals for directives (on rental

14 Research handbook on the future of EU copyright

5 European Commission, ‘Copyright and the Challenge of Technology’, Green Paper, COM (88) 172 final, Brussels, 7 June 1988 [Green Paper on Copyright and the Challenge of Technology].

6 Green Paper on Copyright and the Challenge of Technology, paras 1.3.1.–1.3.6.

7 European Commission, ‘Follow-up to the Green Paper’, COM (90) 584 final, Brussels, 17 January 1991 [Follow-up to the Green Paper].

and lending and certain neighbouring rights; on home copying; on databaseprotection; on terms of protection; and on satellite and cable) as well as aproposed decision requiring Member States to adhere to the Berne Convention(Paris Act) and the Rome Convention on neighbouring rights.

Much of the Commission’s work programme as announced in the GreenPaper and its Follow-up has materialised in the course of the 1990s In 1991the Computer Programs Directive, the very first Directive in the field of copy-right, was adopted In response to the spectacular growth of the softwaresector, due in particular to the then emerging personal computer market, theDirective created a harmonised framework for the protection of computerprograms as ‘literary works’, including economic rights and limitations, ofwhich the controversial ‘decompilation’ exception was the subject of intenselobbying and political debate

This was followed in the course of 1992 by the Rental Right Directive,which harmonised – and for some Member States introduced – rights ofcommercial rental and lending Perhaps more importantly, the Directive alsoestablished a horizontal harmonised framework for the protection by neigh-bouring (‘related’) rights of performers, phonogram producers, broadcastingorganisations and film producers – at levels well in excess of the minimumnorms of the Rome Convention

In 1993 two more directives were adopted Departing from the prevailingapproach of approximation of national laws, the Satellite and Cable Directivemore ambitiously sought to achieve an internal market for transfrontier satel-lite services by applying a country-of-origin rule to acts of satellite broadcast-ing The Directive was a direct response to the deployment of newtechnologies of transmission of broadcast programs, by satellite and cable, thatgreatly facilitated the broadcasting of television programs across nationalborders Indeed the Directive envisioned the establishment of an internalmarket for broadcasting services The Directive also introduced a scheme ofmandatory collective rights management with regard to acts of cable retrans-mission The Satellite and Cable Directive’s unique characteristics can betraced back to its different origins – not in the Green Paper of 1988, but in anearlier Green Paper on Television without Frontiers of 1984 that dealt primar-ily with broadcasting regulation and eventually resulted in the Televisionwithout Frontiers Directive of 1989.8

8 European Commission, ‘Television without Frontiers’, Green Paper, COM (84) def, Brussels, 14.06.1984 [Green Paper on Television Without Frontiers] Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, OJ L 298/23, 17 October 1989 [Television Without Frontiers Directive].

The year 1993 also saw the adoption of the Term Directive, whichharmonised the term of protection of copyright at the relatively high level of

70 years post mortem auctoris, and set the duration of neighbouring rights at

50 years

Three years thereafter, in 1996, the Database Directive was adopted TheDirective created a two-tier protection regime for electronic and non-electronic databases Member States were obliged to protect databases by

copyright as intellectual creations, and provide for a sui generis right (also

known as ‘database right’) to protect the contents of a database in which theproducer has substantially invested

A directive on home copying of sound and audiovisual recordings, asprioritised in the Follow-up to the Green Paper, was never proposed Privatecopying was eventually harmonised, to a limited degree, by the InformationSociety Directive, but the thorny issue of levies that was already mentioned inthe Green Paper of 1988 has remained on the Commission’s agenda until thisday

Of the other issues mentioned, but not prioritised, in the Follow-up to theGreen Paper, two have eventually resulted in directives In 2001, after barelysurviving its perilous journey between the Commission, the EuropeanParliament and the Council (and back again), the Resale Right Directive wasfinally adopted The Commission’s original work programme was completed

by the adoption in 2004 of the Enforcement Directive, which provided forharmonised remedies against piracy and other acts of infringement, inresponse to the need first identified in the 1988 Green Paper

Midway through the 1990s, however, the Commission’s harmonisationagenda had already become much more ambitious The emergence of theInternet (or ‘Information Society’, as the Commission prefers), whichpromised seamless transborder services involving a broad spectrum of subjectmatter protected by copyright and related rights, brought a new urgency to theharmonisation process that had slowed down considerably after its productivestart at the beginning of the decade Early in 1994 work commenced on a newround of harmonisation of copyright law This eventually led to the publica-tion of yet another Green Paper in 1995, the Green Paper on Copyright andRelated Rights in the Information Society.9Simultaneously, ongoing discus-sions at WIPO on a possible Protocol to the Berne Convention accelerated andeventually led to the conclusion of the WIPO Copyright Treaty (WCT) andWIPO Performances and Phonograms Treaty (WPPT) in 1996 Both treaties

16 Research handbook on the future of EU copyright

9 European Commission, ‘Copyright and Related Rights in the Information Society’, Green Paper, COM (95) 382 final, Brussels, 19 July 1995 [Green Paper on Copyright and Related Rights in the Information Society].

were signed by the Commission on behalf of the European Union, therebytaking on a commitment to implement the new international norms in aharmonised fashion.

Surprisingly, the scope of the Directive on Copyright and Related Rights inthe Information Society, which was first proposed in 1997 and finally adopted

in 2001, turned out to be considerably broader than the ‘digital agenda’ that itwas supposed to deal with required While the Directive harmonises the basiceconomic rights (rights of reproduction, communication to the public anddistribution) in a broad and ‘Internet-proof’ manner and introduces specialprotection for digital rights management systems, by far the largest part of theDirective deals with ‘exceptions and limitations’ – a subject that was never onthe agenda of any green paper

Interestingly, the harmonised norms of copyright and related rights in theseven directives in many cases exceed the minimum standards of the Berneand Rome Conventions to which the Member States have adhered More oftenthan not the norms also exceed average levels of protection in the MemberStates prior to implementation, as exemplified by the Term Directive thatharmonised the duration of copyright at a level well above the ‘normal’ term

of 50 years post mortem auctoris This phenomenon of ‘upwards’ tion is probably inevitable, considering the political and legal problems that ascaling back of intellectual property rights would cause individual MemberStates Moreover, the interests of certain stakeholders (especially right hold-ers) are usually more successfully voiced at the EC level than those of thepublic interest at large

harmonisa-Nevertheless this process of ‘upwards’ harmonisation is a cause for majorconcern The effectiveness, in economic terms, and credibility, in terms ofdemocratic support, of any system of intellectual property depends largely onfinding the legendary ‘delicate balance’ between the interests of right holders

in maximising protection and the interests of users, that is, the public at large,

in having access to products of creativity and knowledge Moreover, aconstant expansion of rights of intellectual property due to ‘upwards’ harmon-isation is likely to create new obstacles to the establishment of an InternalMarket, as long as exclusive rights remain largely territorial and can be exer-cised along national borders

Territoriality

The process of harmonisation of copyright and related rights in the EuropeanUnion has primarily been informed by the desire to remove disparities betweennational laws that might pose barriers to the free movement of goods andservices Indeed, in its elaborate case law on the conflict between rights of intel-lectual property and the free movement of goods and services that precededmuch of this harmonisation, the European Court of Justice has regularly hinted