Copyright in the EU: In Search of (In)Flexibilities

Abstract

Over the past few years consensus has grown around the idea that current EU legislative framework for copyright lacks the flexibility needed to accommodate emerging interests, specifically those arising in connection with technological development. In particular, the principal directive in the area of EU copyright, ie Directive 2001/29/EC (the ‘InfoSoc Directive’), has been widely criticised for having failed to increase legal certainty in the EU and, overall, has been considered a badly drafted, compromise-ridden, ambiguous piece of legislation.

While debate as to whether the InfoSoc Directive – notably, Article 5 and its enumerated system of exceptions and limitations – should be reformed has gained momentum, very limited (if any) attention has been devoted to exploring the relationship between this directive, the emerging doctrine of EU pre-emption and the room left for national initiatives. It remains uncertain to what extent Member States are free to legislate in areas affected by the InfoSoc Directive, notably exclusive rights and related exceptions and limitations.

This contribution seeks to address two main questions: Are Member States entitled to alter, ie broaden or restrict, the scope of the exclusive rights harmonised by the InfoSoc Directive? May Member States decide (as the UK did) not to transpose the full language of exceptions and limitations once they chose to implement a certain exception or limitation from Article 5 catalogue into their national laws?

The answer should be in the negative in both cases. This is because Directive 2001/29/EC leaves much more limited room for independent national initiatives than what has been so far understood. However, this may not be necessarily to the detriment of (re-)establishing a proper balance between exclusive rights and related exceptions or limitations. Furthermore, this interpretation appears necessary to comply with the principle of EU pre-emption and thus permit the establishment of a real level playing field in the area of EU copyright.

Keywords: Directive 2001/29/EC, InfoSoc Directive, EU copyright, exclusive rights, exceptions or limitations, Svensson, Football Dataco, TV2 Danmark, Padawan, Luksan, EU pre-emption, harmonisation, right of adaptation, OSA, incorrect implementation of EU directives