Infopaq, BSA and the 'Europeanisation' of United Kingdom Copyright Law

Abstract

The process of harmonisation of copyright law in the European Union has been underway for more than twenty years. Substantial progress has been made, but some fundamental issues - moral rights, authorship and ownership, copyright contracts, levies for private copying, secondary liability and criminal sanctions - remain largely untouched. In fact, the process of legislative harmonisation seems to have lost something of its impetus lately. Against this background, the Court of Justice’s role in the development of copyright law has, until recently, been limited. However, things have changed as a result of the Court’s judgment in Infopaq International A/S v. Danske Dagblades Forening, which has a wide-ranging and dramatic impact on a number of core principles of United Kingdom copyright law - including the concept of originality, the methodology for assessing infringement and the interpretation of exceptions and limitations. More recently, the decision in Bezpečnostní softwarová asociace-Svaz softwarové ochrany v. Ministry of Culture of the Czech Republic (“BSA”) not only applies and extends the principles established in Infopaq, but is also likely to have significant impact in its own right on the law of a number of member states, including the United Kingdom. The impact of Infopaq has been relatively widely commented upon and therefore only its major features are noted here. However, very little has yet been written on BSA and an attempt is accordingly made to consider its potential impact in greater detail.

Keywords: Copyright, Originality, Infringement, Software, Functionality, Infringement, Infopaq, Bezpečnostní Softwarová Asociace-Svaz Softwarové Ochrany v. Ministry of Culture of The Czech Republic, BSA, United Kingdom, European Law, Harmonisation

JEL Classification: K00