The Routledge Handbook of EU Copyright Law

Eleonora Rosati, Eleonora Rosati

• Éditeur: Routledge
• Année: 2021
• ISBN:
  9781000364088
• Édition: 1
• Sujet: Diritto
• Sous-sujet: Teoria e pratica del diritto

The Routledge Handbook of EU Copyright Law provides a definitive survey of copyright harmonization in the European Union, capturing the essential and relevant issues of this relatively recent phenomenon. Over the past few years, two themes have emerged: on the one hand, copyright policy and legislative initiatives have intensified; on the other hand, the large number of references to the Court of Justice of the European Union has substantially shaped the EU copyright framework and, with it, the copyright framework of individual EU Member States.

This handbook is a detailed reference source of original contributions which analyze and critically evaluate the state of EU copyright law with a view to detecting the key trends and patterns in the evolution of EU copyright, weighing the benefits and disadvantages of such evolution. It covers a broad range of topics through clusters focused on: the history and approaches to EU copyright harmonization; harmonization in the areas of exclusive rights, exceptions and limitations, and enforcement; copyright policy and legacy of harmonization.

With contributions from a selection of highly regarded and leading scholars in this field, the Routledge Handbook on European Copyright Law is an essential resource for students and scholars who are interested in the field of copyright law.

SECTION III

The scope of exclusive rights and liability for the doing of unauthorized acts

7
The right of reproduction

Caterina Sganga

Abstract

The right of reproduction – commonly considered the core of copyright – has always been the first entitlement to face the challenges raised by technological developments. The digitization of protected works and the advent of the internet have drastically broadened the range of conducts involving acts of copying, triggering heated policy discussions on the optimal extension of exclusivity. Against the silence of international sources, the EU legislator has harmonized this right in the Software, Database and InfoSoc Directives. However, the broad definitions and unclear exceptions provided therein have created greater uncertainties. National courts have struggled with the classification of a wide range of new technological processes and with the treatment of partial and temporary reproductions, while scholars have raised concerns on the effect that an overstretching of the right would have had on the functioning of the internet, the development of digital markets, and users’ enjoyment of their digital freedoms. The chapter illustrates the path leading to the definition of the right of reproduction by international and EU sources, delineates the uncertainties regarding its scope, and comments on the evolution of the notion in the case law of the Court of Justice of the European Union (CJEU), highlighting positive contributions, pitfalls and gaps yet to be filled.

Contents

Abstract

Introduction

The right of reproduction in legislative texts

International background and preparatory works

The scope of the right of reproduction in EU directives

Exceptions and limitations

CJEU case law

General principles and definitions

Temporary reproduction and related exception(s)

Partial reproduction

Format shifting: reproduction or adaptation?

Private copying and fair remuneration

Other exceptions to the right of reproduction (Article 5(2) and (3) InfoSoc)

Conclusions

References

Case law

Introduction

The right of reproduction was one of the first exclusive rights introduced by national copyright laws.¹ The entitlement is commonly defined as the “core” of copyright² and at the heart of its conceptualization.³

From the early-days printing privileges to the classic right to prevent material duplications, reproduction has always been the first entitlement to face the challenges raised by technological developments and the broadening of the subject matter of copyright. With an acceleration in the 20th century, new devices have made copying cheaper, faster and available for any user. Format shifting has become common. Ultimately, the digitization of protected works and the internet have drastically broadened the range of conducts involving reproductions, and particularly temporary ones.⁴ Against this background, adopting a purely technical definition of the boundaries of the right could have resulted in the construction of an overstretched right, and in the privatization of almost every conduct involving digital works, regardless of its impact on rightholders’ economic interests. Not unexpectedly, the policy debate regarding the ‘right’ approach to digital uses became soon heated, triggering a panoply of different reactions at an international, EU, and national level alike.

Despite the relevance of this right in the digital environment, the first international conventions regulating digital copyright and related rights – the 1996 WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT)⁵ – did not intervene on it, referring back to the relatively “old” definition provided by the Berne Convention.⁶ The Agreed Statement to Article 1(4) WCT justified the omission by arguing that the international acquis was already equipped with provisions that could be adapted to the features of digital works.⁷ Yet, too many questions were left unsolved, and with them the obvious risk of fragmentation of national responses to new technological developments.

On the contrary, the EU legislator perceived since the early days the need to harmonize exclusive rights and create a common vocabulary that could flatten the divergences in Member States’ approaches. Despite the common adhesion of EU countries to the Berne Convention, in fact, national statutes differed as to the approach to the rights – from very broad categories to very detailed lists⁸ – the terminology used, and the conducts covered by each entitlement.⁹ From the Software Directive I (1991)¹⁰ on, the EU harmonization has created a broad acquis communautaire characterized by a piecemeal approach, drawing upon international and national definitions, while the Court of Justice of the European Union (CJEU) has progressively construed autonomous concepts of EU (copyright) law, narrowing ever more the space left to national legislators.

1 Already the Statute of Anne recognized to authors the ‘sole Liberty of Printing and Reprinting’ their books (An Act for the Encouragement of Learning, 8 Anne c.19 (1719), and so did the French Act of 1793 (Decret-loi du 1er septembre 1793 sur la propriété litteraire et artistique, in (1893) 11 Le Droit D’Auteur 131) and the Prussian Act of 1837 (as reprinted in (1988) 107 UFITA 190).

2 Commission, Green Paper ‘Copyright and Related Rights in the Information Society’ COM (95) 382 final, 49.

3 See, similarly, Ansgar Ohly, ‘Economic Rights’, in Estelle Derclaye (eds) Research Handbook on the Future of EU Copyright (Elgar, 2008), 212, and Michel M Walter, Silke von Lewinski (eds) European Copyright Law. A Commentary (OUP, 2010) 963.

4 This is well emphasized in Green Paper Copyright (n 2), 51, and already in Commission, Green Paper ‘Copyright and the Challenge of Technology – Copyright Issues Requiring Immediate Action’, COM (88) 172 final, 7–8.

5 WIPO Copyright Treaty, 36 ILM 65 (1997); WIPO Performances and Phonograms Treaty, 36 ILM 76 (1997).

6 Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986).

7 Agreed Statements concerning the WIPO Copyright Treaty, adopted by the Diplomatic Conference of December 20, 1996, Concerning Article 1(4), http://www.wipo.int/treaties/en/text.jsp?file_id=295456 (last accessed 5 July 2020).

8 It is common to compare the French tradition, flanked by that of countries such as Finland or Hungary, characterized by broad definitions, with approaches such as those of the UK Copyright, Design and Patents Act, where rights are defined in analytical detail. See Mireille van Eechoud et al., Harmonizing European Copyright Law. The Challenges of Better Lawmaking (Wolter Kluwer 2009) 68.

9 Ibid, noting how the distribution of tangible copies is classified in some countries as part of the right of communication to the public, in others as part of the reproduction right, in yet others under a general “making available” right.

10 Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ L122/42 (Software Directive I).

The InfoSoc Directive¹¹ attempted to conclude the path started by the Software and Database Directives and to provide a comprehensive, clear and updated definition of the right of reproduction.¹² However, its text was already born aged,¹³ and destined to create interpretative challenges. The broad definition provided by Article 2 InfoSoc and the uncertain scope of the exception of transient reproduction (Article 5(1) InfoSoc) triggered great uncertainties as to the extent of rightholders’ control over a wide range of digital uses, transmissions and processes, factually increasing the number of restricted acts.¹⁴ Scholars and stakeholders soon showcased their fears that an overstretched reproduction right could disproportionately impact on the functioning of the internet, have chilling effects on the development of new digital distribution models, and improperly cover acts of consumption and reception of information.¹⁵ National courts have struggled with the classification of acts such as caching, linking, streaming, search engine indexing and thumbnailing, with the overlap of rights of reproduction and communication to the public, and with the definition of the borders of partial reproduction vis-à-vis activities such as music sampling.¹⁶ Rightholders and collecting societies have claimed multiple remunerations for single transmissions and from multiple actors in th...