Making sense of copyright across European borders

This issue is clearly on the Commission's agenda: towards the end of October 2013, it published its work programme for the coming year. As one of its initiatives, it states that it will carry out a review of the copyright aquis, to "review the provisions of the EU copyright framework which are relevant for the online availability of material protected by copyright and related rights, with a view to ensuring that this framework is fit for purpose in the digital age. This means, inter alia, a modern framework that fosters innovative market practices,guarantees effective recognition and remuneration of rightholders, provides sustainable incentive for creativity, cultural diversity and innovation, increases the choice of and open up access to legal offers by end users, allows new business models to emerge and more effectively contributes to combating illegal offers and piracy."

A potential obstacle for businesses providing content across borders is the degree of variance between the copyright laws of the 28 different Member States of the EU. Businesses cannot always easily assess what will amount to infringement (if not licensed) in each of the various Member States in which they operate. This can have the result that one business model does not necessarily fit all. In some cases, an online business model might work in one country but not in another.

There is no concept of an EU copyright. Instead, rights holders will typically have a bundle of national copyrights which can be licensed individually, together, on a country by country basis or for the whole of the European Union. The European Information Society Directive 2001/29/EC ("InfoSoc Directive) sought to harmonise national copyright law to some degree. However, there are still areas which remain unharmonised, particularly the exceptions and limitations to copyright protection. Member States are given discretion as to the extent, if at all, exceptions are implemented into national law. For example, the UK is only just in the process of introducing a private copying exception into its national law but most other European Member States have already chosen to provide for this and have implemented an accompanying levy system on blank media and other forms of content storage.

The InfoSoc Directive was drafted well over a decade ago and without a full understanding of what the current digital business models would look like.  Given the Directive was drafted before some of the business models it caters for were adopted , it is proving increasingly necessary for Member States to make references to the Court of Justice of the European Union (CJEU) asking it to rule on how the InfoSoc Directive should be interpreted. Those rulings are binding on the national courts of Member States. In order to have a full picture of the constraints of copyright law, it is necessary to look not only at national law and the InfoSoc Directive, but also at relevant CJEU rulings. 

This table takes a look at some issues which are relevant to provision of content across borders. I look at the extent to which those areas have been harmonised by the Court of Justice of the European Union (CJEU) and which remain unharmonised.

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