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Acknowledgements to the second edition »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

Part III The Legacy of the CJEU, 9 CJEU case law and the interplay with policy and legislative action in the Digital Single Market »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati
This final chapter tackles recent EU copyright reform initiatives. It focuses in particular on the history of some of the provisions of the DSM Directive to show that the very choice to intervene in respect of certain issues (e.g. what is now regulated by Articles 8(1), 12, and 16 of the DSM Directive, i.e. licences for the use of out-of-commerce works, collective licences with an extended effect, and remuneration for private copying, respectively) was prompted by specific judgments of the Court of Justice of the European Union (CJEU). In other areas—including the exclusions of acts of hyperlinking and very short extracts from the scope of protection of the press publishers’ related right in Article 15, the notion of ‘communication to the public’ and the obligations of online content-sharing service providers (OCSSPs) in Article 17, and the ‘codification’ of CJEU case law on originality in Article 14—the legislative history and resulting provisions may be only understood if read in the light of the jurisprudential evolution undertaken over time, including prior to the adoption of the DSM Directive, at the CJEU level.

Part III The Legacy of the CJEU, Conclusion—Copyright and the CJEU: Role, action, legacy »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati
The Conclusion sums up the main themes identified and reviewed throughout the book. First of all, despite the lack of formal specialization within the Court of Justice of the European Union (CJEU), a copyright expertise has emerged through the selection of relevant Judges-Rapporteur and Advocates General (AGs) from a narrow pool. This has been one factor that has contributed to developing a consistent body of case law. Second, over time the CJEU has employed several standards that have served to address copyright issues from a certain perspective, and—admittedly—also to achieve certain results. With the application of such a rich set of standards, the Court has given an overall coherent shape to EU copyright law and, in significant instances, pushed the boundaries of EU harmonization well beyond the text—and arguably intention—of EU legislation. In this sense, the Court’s action has been informed by an overarching internal market goal. The result has been a profound impact of CJEU case law on individual EU Member States, to the point that it seems possible to speak of an EU approach to copyright. As the experience of the UK, even post-Brexit, demonstrates, CJEU case law has contributed to re-shaping key copyright concepts and approaches to copyright protection. The impact of this case law is still very strong and will continue to be felt. The legacy of CJEU case law is also apparent in the context of the EU copyright reform debate, including having regard to the DSM Directive.

Copyright and the Court of Justice of the European Union »

Eleonora Rosati

Dedication »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

Detailed contents »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

Part I EU Harmonization and the Functioning of the CJEU, 1 EU copyright harmonization and CJEU role and action »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati
Chapter 1 starts with an overview of the history and process of EU harmonization in the copyright field. It then explains the structure, composition, and work of the Court, as well as the mechanism—references for a preliminary ruling—through which the Court of Justice of the European Union (CJEU) has mostly been asked to consider copyright legislation. It provides data on selected aspects of CJEU activity, including having regard to: the areas in which cases have been referred to the Court; Member States of referring courts; intervention of EU Member States; and Judges-Rapporteur and Advocates General (AGs) who have worked on copyright cases. It concludes with a statistical analysis that shows a tendency on the side of the Court to agree with the relevant AGs when these promote expansive interpretations of relevant copyright provisions. By ‘expansive’ it is meant a situation in which the Court concluded that the activities at issue in the background proceedings and as described by the referring courts would fall within the scope of application of copyright’s exclusive rights.

Part II Beyond the Law? A CJEU-Made Copyright System, 6 Exceptions and limitations in the EU copyright system: From ‘derogations’ to ‘user rights’ »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati
Chapter 6 considers exceptions and limitations under the InfoSoc Directive and DSM Directive. The attention focuses on three areas in particular—parody, quotation, and private copying—in order to outline how the application of certain key standards—notably: (i) the one according to which concepts in EU directives that make no reference to the laws of individual EU Member States should be intended as autonomous concepts of EU law that must be given uniform application throughout the EU; (ii) strict interpretation of exceptions and limitations but also; (iii) effectiveness of exceptions and limitations and; (iv) achieving a fair balance in the protection of contrasting rights in light of the mandate of the EU Charter—have allowed the creation of an EU system of exceptions and limitations. In this sense, the role of the Court has been pivotal in strengthening the admittedly weak harmonizing force of the InfoSoc Directive. This chapter also discusses the nature and function of the three-step test as found in Article 5(5) of that directive, as well as the qualification of exceptions and limitations as ‘rights’ of users and the (im)possibility for individual Member States to exceed the closed catalogue under EU law.

Part II Beyond the Law? A CJEU-Made Copyright System, 7 The framework for enforcing copyright and related rights »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati
Moving from an objectively thin legislative framework, the Court of Justice of the European Union (CJEU) has produced a substantial body of case law on the enforcement of copyright (and, more generally, IP rights). As a result, it has developed a principled framework in this area, including having regard to the online dimension of rights protection. Chapter 7 focuses on enforcement broadly intended, showing how the legislative framework alone—including the InfoSoc Directive, the Ecommerce Directive, and the Enforcement Directive—provides limited guidance regarding the construction of relevant concepts and available remedies. What has been key to the creation of an EU enforcement framework has been, once again, the role of the Court, which is particularly visible in respect of safe harbour availability and monitoring obligations of information society service providers (ISSPs), injunctions against intermediaries, costs and damages, and applicable law and jurisdiction in cross-border disputes.

Part II Beyond the Law? A CJEU-Made Copyright System, 5 The ‘high level of protection’ of exclusive rights »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati
Focusing on the construction of exclusive rights under copyright and related rights, Chapter 5 shows how the application, by the Court of Justice of the European Union (CJEU), of the standards discussed in Chapter 2 has led to common approaches—and overall broad scope—of the rights harmonized under the InfoSoc Directive (reproduction, communication/making available to the public and distribution). The analysis considers, first, the right of reproduction of authors and other rightholders. Then the discussion moves on to review the right of communication/making available to the public having regard to its constitutive requirements, as well as its application to linking and internet platform operators. Insofar as the latter is concerned, an analysis is also undertaken of the nature of Article 17 of the DSM Directive. After that, the right of distribution—including the vexed issue of its exhaustion in a digital/online context and the now different treatment of software vis-à-vis InfoSoc works—is reviewed. Given the abundance of CJEU case law on database and software, the final part of this chapter also details relevant decisions in these areas.

Index »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

Introduction to the second edition »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati
Besides macro-events like the now completed departure of the UK from the EU and the adoption of the DSM Directive, between the first and the present edition very significant developments have also occurred in the case law of the CJEU. First of all, objectively seminal judgments have been issued, including having regard to copyright protection of works of applied art, liability of internet platform operators, contractual restrictions to linking, digital exhaustion under the InfoSoc Directive, application of the EU Charter to the copyright field, and legislative freedom of EU Member States, as well as the very validity of Article 17 of the DSM Directive. Furthermore, some of the standards of interpretation relied upon by the CJEU in its copyright case law have gained more or less prominence compared to the analysis included in the first edition of this book, with the result that the relationship between them also warranted some fresh considerations. The Introduction details the main changes occurred between the first and second edition of the book, as well as main objectives and structure of the book.

List of abbreviations »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

List of figures and tables »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

Part I EU Harmonization and the Functioning of the CJEU, Preliminary Material »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

Part II Beyond the Law? A CJEU-Made Copyright System, Preliminary Material »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

Part III The Legacy of the CJEU, Preliminary Material »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

References »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati

Part II Beyond the Law? A CJEU-Made Copyright System, 4 Requirements for protection of works and other subject matter »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati
Neither international nor EU law define foundational requirements of copyright protection like ‘work’ or ‘originality’. In its case law, the Court of Justice of the European Union (CJEU) has nonetheless defined and shaped both requirements and has pushed the boundaries of EU harmonization well beyond the text of the copyright acquis, with the result of also setting an EU-wide approach to fixation, categorization, and the (in)admissibility of requirements other than originality, e.g. artistic value or aesthetic effect. Chapter 4 reviews such case law and considers the implications thereof, including having regard to works of applied art. It also analyses CJEU case law that has enucleated the rationale of protection under related rights and explains how such rationale informs areas other than those specifically tacked by the CJEU in existing referrals for a preliminary ruling.

Part I EU Harmonization and the Functioning of the CJEU, 2 Standards applied in CJEU copyright jurisprudence: A data-based case law analysis »

From: Copyright and the Court of Justice of the European Union (2nd Edition)
Eleonora Rosati
Chapter 2 focuses on the standards that the Court of Justice of the European Union (CJEU) has employed in its case law. It selects and illustrates the content of the policies and principles that the CJEU has used to develop its own understanding of EU copyright directives. The analysis thus considers general and special standards, the former being standards that the Court has applied transversally to different areas of copyright and the latter being relevant to specific areas, eg exclusive rights or exceptions and limitations. General standards include: guarantee of a high level of protection; the need to interpret certain concepts as autonomous concepts of EU law; effectiveness; proportionality; fair balance of different rights and interests; the requirement to interpret provisions in relevant directives in light of their wording and context, as well as the objectives pursed by the directive in question; and interpretation of relevant provisions in light of fundamental rights as also protected in the EU Charter. Special standards include the requirement of interpreting exclusive rights as having preventive nature and exceptions and limitations strictly. The second part of this chapter contains a statistical analysis referred to as ‘data-based case law’ (DBCL). Its main objective is to illustrate relations and correlations between the various standards employed in CJEU case law, considered in pairs. The DBCL may also serve to anticipate types of standards likely to be employed in relation to different areas of copyright in future cases.