A Brief Exegesis of the Proposed Copyright Directive

16 Pages Posted: 30 Nov 2016 Last revised: 15 Jan 2017

Sophie Stalla-Bourdillon

University of Southampton

Eleonora Rosati

University of Southampton - School of Law

Karmen Turk

University of Tartu

Christina Angelopoulos

University of Cambridge

Aleksandra Kuczerawy

KU Leuven, Centre for IT & IP Law (CiTiP)

Miquel Peguera

Universitat Oberta de Catalunya (UOC); Stanford University - Stanford Law School Center for Internet and Society

Martin Husovec

Tilburg Law and Economics Center (TILEC); Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Stanford University - Stanford Law School Center for Internet and Society

Date Written: November 24, 2016

Abstract

The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker’s mandate. In its Communication of 6 May 2015, the EC had stressed “the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter.” The proposed Copyright Directive is thus a key measure aiming to address two of these three issues.

We concentrate on the third one, carefully examining the text of both the explanatory memorandum and the Directive itself, in an attempt to highlight its shortfalls. We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council. We begin with a brief assessment of the explanatory memorandum and then focus on the articles and recitals of the proposed Copyright Directive.

Our conclusions are:

1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including Court of Justice of the European Union case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.

2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.

Keywords: Intermediaries, Monitoring, Proposed Copyright Directive, European Union

JEL Classification: K00

Suggested Citation

Stalla-Bourdillon, Sophie and Rosati, Eleonora and Turk, Karmen and Angelopoulos, Christina and Kuczerawy, Aleksandra and Peguera, Miquel and Husovec, Martin, A Brief Exegesis of the Proposed Copyright Directive (November 24, 2016). Available at SSRN: https://ssrn.com/abstract=2875296

Sophie Stalla-Bourdillon (Contact Author)

University of Southampton ( email )

University Rd.
Southampton SO17 1BJ, Hampshire SO17 1LP
United Kingdom

Eleonora Rosati

University of Southampton - School of Law ( email )

Southampton SO17 1BJ
United Kingdom

HOME PAGE: http://https://www.southampton.ac.uk/law/about/staff/er2u13.page

Karmen Turk

University of Tartu ( email )

Ülikooli 18
Tartu 50090, 50090
United States

Christina Angelopoulos

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

Aleksandra Kuczerawy

KU Leuven, Centre for IT & IP Law (CiTiP) ( email )

Sint-Michielsstraat 6 box 3443
Leuven
Belgium

Miquel Peguera

Universitat Oberta de Catalunya (UOC) ( email )

Tibidabo Av. 39-43
Barcelona, 08035
Spain

Stanford University - Stanford Law School Center for Internet and Society

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://cyberlaw.stanford.edu/about/people/miquel-peguera

Martin Husovec

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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