2. A Normative Gap in Copyright Lawmaking?

St Clair Bradley (2011), p. 91.

Surface patterns and structural patterns are also known as manifest or latent content respectively—see Berg (2007), pp. 308–309.

See Article 101 TFEU.

See for example Article 102 TFEU (b), prohibiting the limitation of production, markets or technical development to the prejudice of consumers.

See Article 3 paragraph 3 TEU, Article 26 paragraph 1 TFEU and Article 114 TFEU. See also infra, Chap. 4.

Article 3 paragraph 3 TEU.

Articles 6 (c) and 167 TFEU.

See Computer Programs Directive, Recitals 4 and 5; Rental and Lending Rights Directive, Recitals 1–3; Satellite and Cable Directive, Recitals 1–3, 5, 14 and 33; Term of Protection Directive, Recitals 2, 9, 17, 18 and 25; Database Directive, Recitals 2–4; Information Society Directive, Recitals 3, 6, 7, 31, 32, 47 and 56; Resale Right Directive, Recitals 9–15 and 23; Orphan Works Directive, Recitals 8, 14 and 25. The only directives not using the internal market as a legal basis are the Satellite and Cable Directive and the Collective Management Directive, which had only the freedom to provide services and the right of establishment as their express legal bases. However, this difference is not material, as the free movement of services is in any case part of the notion of internal market (cf. Article 26 paragraph 2 TFEU).

See Explanatory Memoranda of the various directives: Computer Programs Proposal, Part 1, paragraphs 1.4, 2.10, 2.11, 5.4; Rental and Lending Rights Proposal, Part 1, paragraphs 10, 39, 43, 45, 46; Satellite and Cable Proposal, paragraphs 5, 7; Term of Protection Proposal, Part 1, paragraphs 26–28, 33, 38–41, 45, 46; Database Proposal, Part 1, paragraphs 2.2.5, 2.2.11, 7.1.2–7.1.5; Information Society Proposal, Introduction(1), chapters 2(2), 3.I(13), 3.II(7), 3.III(5); Resale Right Proposal, sections I.8, IV.A.2., IV.A.3., IV.A.18., IV.C.7.; Orphan Works Proposal, paragraph 1; Collective Management Proposal, paragraph 1.1.

See Green Paper, paragraph 1.3.2.: “[T]he Community must ensure the proper functioning of the internal market. To the maximum extent possible, creators and providers of copyright goods and services should be able to treat the Community as a single internal market. This requires the elimination of obstacles and legal differences that substantially disrupt the functioning of the market (…).”

See, in relation to the Rental and Lending Rights Directive, case C-200/96—Metronome Musik, p. 22, and case C-245/00—SENA, p. 4; in relation to the Term of Protection Directive, case C-240/07—Sony v Falcon, p. 23; and in relation to the Information Society Directive, case C-479/04—Laserdisken, pp. 31–34.

See Explanatory Memorandum to the Information Society Proposal, chapter 3.I.13.

Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 39.

See Explanatory Memorandum to the Information Society Proposal, chapter 3.III.3.

See Information Society Directive, Recitals 47 and 56, both stating that it was necessary to “avoid fragmented legal approaches that could potentially hinder the functioning of the internal market.” See also Explanatory Memorandum to the Information Society Proposal, chapter 3.III.5.

See Information Society Proposal, comments to Article 5.

See Green Paper on Copyright and the Challenge of Technology (1988), paragraph 1.4.9.: “(…) Community legislation should be restricted to what is needed to carry out the tasks of the Community. Many issues of copyright law do not need to be subject of action at Community level.”

See Explanatory Memorandum to the Term of Protection Proposal, Part 1, paragraph 56. Note however that Article 4 of the Term of Protection Directive, following an amendment by the European Parliament, ended up recognizing the right of the publisher of a previously unpublished work, who now benefits from a protection equivalent to the economic rights of the author for a period of 25 years.

Rental and Lending Rights Directive, Recital 5.

Information Society Directive, Recitals 11 (“A rigorous and effective system for the protection of copyright and related rights is one of the main ways of ensuring that European cultural creativity and production receive the necessary resources (…)”), 12 (“Adequate protection of copyright works and subject-matter of related rights is also of great importance from a cultural standpoint”), 14 (“This Directive should seek to promote learning and culture (…)”), and 22 (“The objective of proper support for the dissemination of culture must not be achieved by sacrificing strict protection of rights (…)”).

Resale Right Directive, Recital 7.

Orphan Works Directive, Recitals 1, 5, 20 and 22.

See Section “Effect on competitiveness and employment”, Rental and Lending Rights Proposal page 71. The same reference is found in the Satellite and Cable Proposal, page 63, even though such reference never made it to the final version of the Satellite and Cable Directive.

Explanatory Memorandum to the Orphan Works Proposal, paragraph 1.

Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 44. See also in the same Proposal the comments to Article 4, where it is stated that “the availability and accessibility of, for example, books in public libraries, must be guaranteed for cultural reasons.”

Explanatory Memorandum to the Information Society Proposal, chapter 2.2.

Orphan Works Directive Recital 20 and Article 6.

Orphan Works Directive, Recitals 3, 15 and 16.

Orphan Works Directive, Recitals 21 and 22.

Information Society Directive, Recital 34.

See Rental and Lending Rights Directive, Article 5, paragraphs 1 and 2.

Rental and Lending Rights Directive, Article 5, paragraph 3.

See comments to Article 4 in the Rental and Lending Rights Proposal.

Resale Right Directive, Recital 18.

Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 7.

Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 8.

Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 9.

Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 39.

Recital 3 of the Collective Management Directive. See also the Collective Management Proposal, paragraph 1.1.

Recital 44 of the Collective Management Directive.

Also sharing this view, Van Eechoud (2007), p. 116 and Dreier (2010), p. 51. See Cohen Jehoram (2001), p. 539, holding that the Commission did not act exclusively to promote free movement. On a similar account, noting in addition the intense lobbying by different interest groups in the context of the debate over the Information Society Directive, see Seville (2009), p. 50.

According to Hartley, the meaning of “creative industries” varies geographically, but in general it can be said that it “combines—but then radically transforms—two older terms: the creative arts and the cultural industries”—see Hartley (2005), p. 6. Along similar lines, see also Neuwirth (2008), pp. 242 ff. UNCTAD (2008), pp. iii–iv; Towse (2011), pp. 125 ff. European Competitiveness Report (2010), p. 11; Green Paper on Unlocking the Potential of Cultural and Creative Industries (2010), pp. 5–6.

Some countries vest authorship and/or initial ownership in legal persons in some situations (e.g., in the framework of an employment contract). For a more detailed explanation of initial authorship and ownership, see Goldstein and Hugenholtz (2010), pp. 245 ff.

See e.g. Rental and Lending Rights Proposal, comment 3.1.1. to Article 3; Rental Rights Directive, Recital 18; Explanatory Memorandum to the Database Proposal, Part 1, paragraphs 3.1.11 and 4.2.1.; Term of Protection Directive, Recital 5; Explanatory Memorandum to the Information Society Proposal, chapter 2.1. and Information Society Directive, Recital 10.

See e.g. Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 43; Rental and Lending Rights Directive, Recitals 7 and 11; Explanatory Memorandum to the Satellite and Cable Proposal, Part 1, paragraph 57; Satellite and Cable Directive, Recital 5; Explanatory Memorandum to the Term of Protection Proposal, Part 1, paragraph 60; Database Directive, Recitals 26 and 33; Information Society Directive, Recital 35, 44, 47 and 59; Orphan Works Directive, Recitals 12, 13, 15, 16, 17, 18, 20; Collective Management Directive, Recitals 1, 2, 4–7, 13–15, 17, 19, 21–31, 34–37, 41–43, 46, 47, 49, 50, 52.

Satellite and Cable Directive, Recital 24; Term of Protection Directive, Recitals 10 and 11; Information Society Directive, Recital 9. Collective Management Directive, Recital 27. The CJEU came to confirm that the Information Society Directive has the aim of introducing a high level of protection for authors in case C-5/08—Infopaq, p. 40 and in case C-393/09—BSA, p. 54.

See e.g. Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 7; Rental and Lending Rights Directive, Recitals 7 and 15; Explanatory Memorandum to the Satellite and Cable Proposal, Part 1, paragraph 4; Satellite and Cable Directive, Recitals 5 and 25; Explanatory Memorandum to the Term of Protection Proposal, Part 1, paragraph 49; Explanatory Memorandum to the Resale Right Proposal, paragraph I.4. The CJEU also established the link between protecting authors and “enabling them to receive an appropriate reward for the use of their works”—see Case C-5/08—Infopaq, p. 40. Further, the Court has stated repeatedly that one of the objectives of the Rental and Lending Rights Directive is to guarantee that authors and performers receive an adequate income (see case C-200/96—Metronome Musik, p. 22; case C-36/05—Commission v. Spain, p. 26; and case C-175/05—Commission v. Ireland, p. 20).

Rental and Lending Rights Directive, Recital 15 and Article 4.

Rental and Lending Rights Proposal, comment 3.1.2. to Article 3.

Explanatory Memorandum to the Resale Right Proposal, paragraph I.6.

Resale Right Directive, Recital 22.

See Explanatory Memorandum to the Resale Right Proposal, paragraph V.8: “The Commission considers it appropriate that Member States should be given the option of applying the artist’s resale right from a threshold lower than the Community threshold, despite the fact that this derogation is not a unifying factor.” Nevertheless, Recital 22 of the Directive clarifies that “given the small amounts involved, this derogation is not likely to have a significant effect on the proper functioning of the internal market.”

On the significance of moral rights to the author as an individual, see Rigamonti (2006), pp. 355 f. and Lucas and Lucas (2001), p. 307.

Term of Protection Directive, Recital 21; Database Directive, Recital 28; Information Society Directive, Recital 19. Note however that, as pointed out by Walter and von Lewinski (2010), pp. 1472–1474, some substantive provisions—notably, Article 6 paragraph 2(b) of the Database Directive and Article 5 paragraph 3(a), (c), (d) and (f) of the Information Society Directive—show some concern for the moral right to claim authorship by mandating that the exercise of some exceptions be accompanied by an indication of the source.

Rental and Lending Rights Directive, Recital 4.

Rental and Lending Rights Directive, Recitals 8 and 9.

Explanatory Memorandum to the Satellite and Cable Proposal, Part 1, paragraph 54. Along similar lines, see also paragraphs 57–60, 62 and 64.

See Term of Protection Directive, Recital 11 and Article 1.

See Recital 10 and Article 3 paragraph 1 of the Term of Protection Directive.

See Directive 2011/77/EU (Term of Protection Amending Directive (2011)), Recitals 4, 5, 8, 10, 11, 12 and 14.

See, e.g., Von Lewinski (1992), pp. 787–790; Klass et al. (2008), pp. 586–588. Brownsword (1998), p. 311; Vahrenwald (1996), pp. 332–334.

van Eechoud et al. (2009), pp. 213 ff.; Gowers (2006), p. 51; Geiger (2009), pp. 78–79.

See however the three provisions in Term of Protection Amending Directive that balance out the advantage of producers vis-à-vis performers: the “use it or lose it” clause, allowing performers to re-gain control over their performances (Recital 8 and newly introduced Article 3 paragraph 2a); the unwaivable remuneration right granted to performers in case of transfer or assignment of rights against a one-off payment (Recitals 11 and 12 and newly introduced Article 3 paragraph 2b); and the “clean slate” provision, preventing producers from making any deductions from the contractual royalties during the extended term (Recital 14 and newly introduced Article 3 paragraph 2e).

Information Society Directive, Recitals 21 and 23.

Information Society Directive, Recital 30.

Rental and Lending Rights Directive, Recital 11. See also Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 10.

On the lack of harmonization of the concept of authorship, see generally Quaedvlieg (2012), pp. 197–232, noting however that the approach of the Computer Programs Directive (2009) (Article 2 paragraph 1) and the Database Directive (Article 4 paragraphs 1 and 2) shows a preference for allocating authorship to the original creators.

On the principle of national treatment, see at length Ricketson and Ginsburg (2006), pp. 295 f. and von Lewinski (2008), pp. 99–116, 191–203, 276–280, 440–447.

It is the case, notably, of the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (“Rome Convention”), the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), the WIPO Copyright Treaty (“WCT”) or the WIPO Performances and Phonograms Treaty (“WPPT”).

Recitals 22–23. See also the explanation of these Recitals in the Explanatory Memorandum to the Proposal, Part 1, paragraph 60.

Recital 29.

Recital 56.

Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 7; Rental and Lending Rights Directive, Recital 7; Explanatory Memorandum to the Satellite and Cable Proposal, Part 1, paragraph 4; Satellite and Cable Directive, Recitals 5 and 25; Explanatory Memorandum to the Term of Protection Proposal, Part 1, paragraph 49; Information Society Directive, Recitals 10 and 35; Orphan Works Directive, Recital 18.

Satellite and Cable Directive, Recital 24; Term of Protection Directive, Recitals 10 and 11; Information Society Directive, Recital 9.

See however the three provisions in Term of Protection Amending Directive mentioned in footnote 63 above, that give some leverage to performers.

Explanatory Memorandum to the Term of Protection Proposal, Part 1, paragraph 49.

See Computer Programs Directive, Article 1 paragraph 1.

Explanatory Memorandum to the Computer Programs Proposal, Part 1, paragraph 1.2.

Explanatory Memorandum to the Computer Programs Proposal, Part 1, paragraph 1.3.

Explanatory Memorandum to the Computer Programs Proposal, Part 1, paragraph 5.4.

See Samuelson (1984), pp. 732 ff. Soltysinski (1990), pp. 15ff; Toeniskoetter (2005), pp. 65, 75 ff.

Explanatory Memorandum to the Computer Programs Proposal, Part 1, paragraph 3.

See in particular Explanatory Memorandum to the Computer Programs Proposal, Part 1, paragraphs 3.2–3.4.

Clearly endorsing this view, see also Vandenberghe (1989), p. 409: “The Proposal overemphasises the interest of the maker/owner to the disadvantage of the competitor and the user.”

Database Directive, Article 7 paragraph 1.

Goldstein and Hugenholtz (2010), pp. 239 ff. The authors point out that some countries transposed the sui generis right as a special neighbouring right.

Database Directive, Recital 41.

See Recitals 7–12, 39, 40–44 and 48 of the Database Directive. The Explanatory Memorandum to the Database Proposal contains the same arguments—see in Part 1 paragraphs 1.2; 1.4; 2.2.11; 3.2.8; 4.1.1; 4.2.10; and 7.1.5.

Report on the Database Directive (2005), pp. 3 and 6.

Opinion of the Commission on the European Parliament Amendments to the Council’s Common Position (1996), p. 2, para 2.

See Case C-203/02—BHB v. William Hill, pp. 30 and 45; Case C-46/02—Fixtures Marketing I, p. 33; Case C-338/02—Fixtures Marketing II, p. 23; Case C-444/02—Fixtures Marketing III, p. 39; Case C-304/07—Directmedia Publishing, p. 33.

See Recital 19 of the Rental and Lending Rights Directive. The same presumption is also applicable in the context of the Satellite and Cable Directive—see Recital 26 of the Satellite and Cable Directive.

See Rental and Lending Rights Amended Proposal, pp. 2, (c).

Explanatory Memorandum to the Rental and Lending Rights Proposal, Part 1, paragraph 1.

See Articles 7–9 of the Rental and Lending Rights Directive.

Term of Protection Directive, Recital 23 and Article 7 paragraph 2.

Database Directive, Recital 56.

Collective management organizations are also, in a way, intermediaries. However, they are not considered as intermediaries for purposes of this category, as they do not stand between right holders and end users, but rather between the former and persons or entities that do not act in the capacity of a consumer (see Article 3(k) of the Collective Management Directive).

See Recital 33 of the Directive and Explanatory Memorandum to the Satellite and Cable Proposal, Part 1, paragraphs 54 and 64.

See Articles 9 and 10 and Recital 28 of the Directive.

See Articles 1 paragraph 2(b) and 2 of the Directive.

Recital 4.

This Recital is in line with the Agreed Statement on Article 8 of the WIPO Copyright Treaty (“WCT”), which provides that the provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of the WCT or the Berne Convention. As noted by Ficsor (2002), p. 509, this Agreed Statement was included “as a result of an intense lobbying campaign for non-governmental organizations representing Internet service providers and telecommunication companies.”

Recital 33 states that the intermediary shall not “modify the information [nor] interfere with the lawful use of technology,” while Article 5 paragraph 1 only exempts the acts of reproduction made by intermediaries if those are transient, essential to the technological process and have as their sole purpose to enable a transmission between third parties or a lawful use.

Orphan Works Directive, Recital 1.

Orphan Works Directive, Recital 9.

Orphan Works Directive, Recital 13.

Orphan Works Directive, Recitals 15 and 16.

Orphan Works Directive, Recital 20.

Orphan Works Directive, Recitals 21 and 22.

Explanatory Memorandum to the Computer Programs Proposal, Part 2, comment 5.1. to Article 5.

Computer Programs Amended Proposal, pp. 7–8 (comments on Article 5).

See Computer Programs Directive Recital 17. See also the explanation of this exception in Recital 18. Although the concepts of “lawful acquirer” and “user” might not always coincide, there are cases where a lawful acquirer is also an end user. For further discussion on the differences between the two notions, see van Eechoud et al. (2009), pp. 114–116.

Computer Programs Directive, Recital 26.

Explanatory Memorandum to the Computer Programs Proposal, Part 1, paragraph 3.3.

Explanatory Memorandum to the Database Proposal, Part 1, paragraph 5.3.7. See also Part 2, paragraph 8.5.

Database Directive, Recitals 34, 35, 49 and 50.

Database Directive, Recitals 34 and 49 and Article 15.

Information Society Directive, Recital 33.

Information Society Directive, Recitals 38 and 52.

Orphan Works Directive, Recital 1.

Orphan Works Directive, Recital 23.

Collective Management Directive, Recital 38.

Collective Management Directive, Recital 44.

See Explanatory Memorandum to the Information Society Proposal, Introduction, paragraph 5.

Explanatory Memorandum to the Information Society Proposal, chapter 3.I.14. See also, along similar lines, chapters 3.II.8, 3.III.6 and 3.IV.5.

Case C-456/06—Peek & Cloppenburg, p. 31.

Information Society Proposal, p. 50, para 1.

See, e.g., Recital 15 of the Computer Programs Directive; Recital 10 of the Rental and Lending Rights Directive; Recital 24 of the Term of Protection Directive; Recital 44 of the Information Society Directive.

Recital 14. The same reasoning is developed in the Explanatory Memorandum to the Term of Protection Proposal, Part 1, paragraph 31, and in the Term of Protection Amended Proposal, page 6, Article 5.

Recitals 35 and 37. See also Explanatory Memorandum to the Database Proposal, Part 1, paragraph 5.3.1.

Information Society Proposal, comments on Article 5, paragraphs 8–10.

Explanatory Memorandum to the Resale Right Proposal, V.1, and Resale Right Amended Proposal, I.4.a., I.4.b. and I.4.e.

See Recital 19 of the Rental and Lending Rights Directive; Recital 26 of Satellite and Cable Directive; Recital 14 of the Term of Protection Directive.

Explanatory Memorandum to the Database Proposal, Part 1, paragraphs 5.1.1. and 6.2., and Information Society Proposal, Part Two, comments on Article 8, paragraph 3.

Information Society Proposal, chapter 4, comments on Article 5, paragraph 10, and comments on Article 10, paragraphs 2 and 3.

See Rental and Lending Rights Proposal, Part Two, paragraph 2.1.3.: “the recognition of a rental and lending right specifically for authors and performing artists is in accordance with the Universal Declaration of Human Rights which has been signed by all Member States and which guarantees explicitly in its Article 27 the intellectual property of creators in their works.”