1. Introduction

See, for example, Yen (1990), Strowel (1993), pp. 173 ff. Friedman (1994), Fisher (2001), Guibault (2002), pp. 7 ff. Geiger (2004), pp. 22 ff. Derclaye (2008), pp. 11 ff. Bently and Sherman (2009), pp. 34–39.

Some authors break copyright rationales into more justifications, such as, e.g., the human rights justification (see for instance Derclaye 2008, pp. 13 ff. or the economic justification (which in any case is seen by some authors as derived from the utilitarian argument—see for an account Guibault 2002, pp. 12 ff).

Ginsburg (1994), p. 132; Guibault (2002), pp. 8–9; van Gompel (2011), pp. 217–218.

Fisher (2001), p. 170.

Guibault (2002), pp. 8–9; Hughes (1988), pp. 296 ff. discussing the several interpretations of “reward” in the context of the labour theory).

See Locke (1924) §27, p. 130. Ramello (2005), pp. 134–135, points out that Locke formulated two limitations: the “sufficiency proviso” (where appropriability would be acceptable when “there is enough and as good left for others”) and the “spoilage proviso” (according to which it is necessary to preserve the integrity of common resources from “impoverishment and depletion”). Hughes (1988), pp. 298 ff. stresses the importance of the “non-waste condition” in the context of Locke’s limitations to acquisition of property—this condition would not allow the collection of property to such extent that some of it would be destroyed without being used, since that would imply an “unjustified diminution of the common stock of potential property.” See also Locke (1924) §37, pp. 134–135.

Hughes (1988), p. 330; Fisher (2001), Kretschmer and Kawohl (2004), pp. 31ff.

Hughes (1988), p. 330.

van Gompel (2011), p. 218.

Lacey (1989), p. 1564 and Guibault (2002), p. 8.

See, e.g., Hughes (1988), pp. 329–330 and 365–366; van Gompel (2011), p. 218 and references cited therein.

An argument can be made, however, that at the EU level the controversy around copyright’s nature seems to be settled. The Charter of Fundamental Rights of the European Union (“the Charter”), which has the same legal value as the EU Treaties, states that “intellectual property shall be protected” in paragraph 2 of a provision dedicated to the general right to property (Article 17 of the Charter). In 2001, the EU legislator has expressly adhered to this theory by stating, in recital 9 of the Information Society Directive, that “intellectual property has therefore been recognised as an integral part of property.” The Court of Justice of the European Union (“CJEU”) has also treated copyright as a property right (see, e.g., case C-200/96—Metronome Musik), and the European Court of Human Rights explicitly recognized intellectual property to be protected by the fundamental right to property (in case Anheuser-Busch Inc. v. Portugal (2007), p. 72).

Guibault (2002), p. 10; Derclaye (2008), p. 12; Fisher (2001), Geiger (2004), pp. 27–35; Friedman (1994), p. 176.

Guibault (2002), p. 11.

Ginsburg (1994), pp. 132–133; Senftleben (2004), pp. 6–7.

Geiger (2004), pp. 38–39. Along similar lines, see Lacey (1989), pp. 1564 and 1595–1596: the author points out that some aspects of the positive copyright law are not explainable by the natural rights theory, while the incentive justification “does not reflect the complexity of the world of artists and their real needs and motives.” Also suggesting the reconciliation of both theories, see Yen (1990), especially 558–559 (“Copyright has undeniable economic consequences.[…] However, we must also remind ourselves that the economic effects of copyright must, in the end, be justified by principles beyond the realm of economics. We must identify the natural law insights which guide how the economic institution of copyright should be shaped”); and Brown (1986), especially, p. 607 (“Droit d’auteur theory gives authors an advantage. They need one because they are so often confronted by giant users with more monopoly power than the copyright system gives the author. On the other hand, the rhetoric of rights can be cooled off by the cold bath of economic analysis.”)

Yen (1990), pp. 531 ff.

Kerever (1991), pp. 5–6; van Eechoud et al. (2009), p. 186.

See Kerever (1991), pp. 6–7; Cohen Jehoram (1990–1991), p. 78; van Eechoud et al. (2009), pp. 186–190 and references cited therein.

Ricketson and Ginsburg (2006), pp. 1206 and 1208; Cohen Jehoram (1990–1991), id.; van Eechoud et al. (2009), p. 186.

Kerever (1991), pp. 7–8; van Eechoud et al. (2009), pp. 190–191.

Von Lewinski (2008), p. 34. See, at length, Rajan (2006), pp. 72–88.

See Strowel (1993), pp. 177–178, noting that each system does not completely overlook the other’s justifications. See in addition, along similar lines, Davies (1995), pp. 964–965; Dreier (2001), pp. 298–303; Guibault (2002), p. 12 and references cited therein; Senftleben (2004), pp. 7–10; Nocella (2008), p. 151; von Lewinski (2008), pp. 40–41; Goldstein and Hugenholtz (2010), pp. 14 ff.

Ohly (2009), pp. 212–213.

Goldstein and Hugenholtz (2010), p. 6.

Von Lewinski (2008), pp. 34 and 63.

Strowel (1993), pp. 391 ff. especially 468–469; Davies (1995), pp. 969–970; von Lewinski (2008), pp. 45–46; Torremans (2010), pp. 180 ff.

Von Lewinski (2008) id.

There are however exceptions to this rule, such as for example the case of collective works in France—see Strowel (1993), pp. 383–386; Davies (1995), p. 971; and von Lewinski (2008), pp. 47–48.

Although it is now a requirement for EU Member States to recognize at least the principal director as one of the authors of a cinematographic or audiovisual work—see Article 2 paragraph 2 of the Rental and Lending Rights Directive (2006), Article 2 paragraph 1 of the Term of Protection Directive (2006), and Article 1 paragraph 5 of the Satellite and Cable Directive.

Davies (1995), p. 971; Cornish et al. (2010), pp. 530 ff.

Cornish et al. (2010), p. 530; Von Lewinski (2008), pp. 59–60.

Von Lewinski (2008), pp. 54–55, giving the example of droit d’auteur countries Germany (where transfers of ownership are covered by the distribution right) and France (where transfers of ownership are covered by a droit de destination developed from the reproduction right).

Von Lewinski (2008) id.; Geiger (2010), p. 520.

See Vaver (1999), pp. 272 ff. Nocella (2008), pp. 153 ff. see also Strowel (1993), pp. 481 ff.

Von Lewinski (2008), pp. 56–57; Geiger (2010), pp. 519–520.

Dietz (2002), pp. 899–904; von Lewinski (2008), pp. 61–62.

This is the so-called principle of conferral, enshrined in Article 5 paragraph 2 TEU: “Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”

Article 118 of the Treaty on the Functioning of the European Union (“TFEU”): “In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements.

The Council, acting in accordance with a special legislative procedure, shall by means of regulations establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament.”

Instituted by Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

Instituted by Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs.

See van Eechoud et al. (2009), pp. 317 ff.; Cook and Derclaye (2011), pp. 261–263; Hilty (2012), pp. 360–361.

Hugenholtz (2013), p. 291. For a more skeptical view on combining unification with further harmonization, see Hilty (2012), pp. 360–361.

Article 26 paragraph 2 TFEU.

Article 114 paragraph 1 TFEU: “Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26 [on the aim of establishing an internal market]. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.”

Quadra-Salcedo Janini (2006), pp. 68 ff. Weatherill (2004a), pp. 6–7.

It can be argued that the same problem exists in relation to Article 118 TFEU, since the creation of a EU-wide copyright title is also dependent on the “context of the establishment and functioning of the internal market.” The attachment of the competence of Article 118 TFEU to the building of an internal market was confirmed by the CJEU in joined cases C-274-295/11—Spain v. Council, p. 21.

Weatherill (2004b), p. 639 and references cited therein.

See case C-376/98—Tobacco Advertising I, p. 84, and case C-380/03—Tobacco Advertising II, p. 41.

See case C-376/98—Tobacco Advertising I, p. 78, and joined cases C-465/00, C-138/01 and 139/01—Österreichischer Rundfunk, p. 41.

This was too hinted by Advocate General Fennelly in case C-376/98—Tobacco Advertising, p. 64. His opinion points to the need of a functional competence like that of Article 114 TFEU being “influenced by substantive concerns” (“If the condition of having as its object the establishment or functioning of the internal market, or that of addressing national provisions on the taking up or pursuit of activities as service providers, is satisfied, the content of an approximating or coordinating measure—the level of regulation, the type of scheme, etc.—must also, in principle, be influenced by substantive concerns (…)”).

Article 3 paragraph 3 TEU reads: “The Union shall establish an internal market”. Additionally, article 26 paragraph 1 TFEU states that “the Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.” On the subject of the internal market as an objective of the EU, see infra Chap. 4.

The terms positive and negative integration were first coined by Tinbergen, who defined them in the following terms: negative integration would be the “measures consisting of the abolition of a number of impediments to the proper operation of an integrated area”; positive integration could be defined as “the creation of new institutions and their instruments or the modification of existing instruments” (Tinbergen 1965, p. 76). In what concerns subsequent literature on this subject, see inter alia Scharpf (1996), p. 15; Steiner et al. (2006), p. 324; Pelkmans (1984), p. 4; Lohse (2011), pp. 293 ff.

See e.g. Weatherill (2010), p. 484, Kurcz (2001), pp. 288 ff. de Vries (2006), p. 319; Jarvis (1998), pp. 328 ff.

See Tridimas (1996), pp. 199 ff. Cappelletti (1981), pp. 16 ff. see more generally on the impact of CJEU decisions on subsequent policy-making Stone Sweet (2011), pp. 147–148.

Proposed definition of acquis communautaire on the official website of the European Union at http://​eur-lex.​europa.​eu/​summary/​glossary/​acquis.​html (last accessed 4 October 2004).

It has been widely accepted that the acquis communautaire, as the European legal patrimony, comprises a “judicial acquis” as well: see Pescatore (1981), pp. 619 f. and Gialdino (1995), p. 1098. The latter points out that the Court contributes to the acquis in two different ways: “on the one hand, the Court cooperates in consolidating the Community patrimony, while also acting as a catalyst for new developments in the definition of a concept which is evolutionary by its very nature; on the other, the Court is called upon to ensure respect of the acquis, thus playing the typical role of garantor.” See however Tridimas (2012), noting that, even though CJEU decisions are generally followed in subsequent decisions, there is formally no true doctrine of judicial precedence in the EU.

Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, replaced on codification by Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009.

Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, replaced on codification by Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006.

Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.

Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, replaced on codification by Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 and amended by Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011.

Directive 96/6/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society.

Directive 2001/84/EC of the European Parliament and of the Council of 22 September 2001 on the resale right for the benefit of the author of an original work of art.

Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works.

Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market.

See von Lewinski (2004), p. 97 and Cohen Jehoram (2001), p. 536.

Resolution of the European Parliament on the protection of Europe’s cultural heritage (1974), p. 6.

See Commission Communication on Community action in the cultural sector (1977), pp. 20–40.

See Commission Communication on stronger Community action in the cultural sector (1982), specifically, p. 2 (i), that reads: “Works produced by cultural workers and services supplied by them are products and services covered by the rules of the common market in the same way as other products and services and can obtain the maximum practical benefit through the application of those rules.”

See Green Paper on Television without Frontiers (1984), pp. 301 ff.

Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.

Dreier (1991), p. 9.

See Dreier and Hugenholtz (2006), pp. 263 and Seville (2009), pp. 34 ff.

See Green Paper on Copyright and the Challenge of Technology (1988), p. 1.5.10.

Article 53 paragraph 1 TFEU: “In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.”

Green Paper on Copyright and the Challenge of Technology (1988), p. 1.5.11.

Article 352 TFEU paragraph 1: “If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament.”

Green Paper on Copyright and the Challenge of Technology (1988), p. 1.5.17.

The Rental and Lending Rights Directive was also partially based on case 158/86—Warner, where differences in national regimes concerning rental rights were an obstacle to trade that was deemed acceptable by the CJEU (thus prompting the EU legislator to harmonize rental rights).

See case 341/87—EMI Electrola v. Patricia, pp. 10–12 and Explanatory Memorandum to the Term of Protection Proposal (1992), pp. 14–15. See also Dreier and Hugenholtz (2006), p. 287, Bently and Sherman (2009), p. 51, and Seville (2009), p. 38. For the details of the case, see Chap. 3.

See Green Paper on Copyright and Related Rights in the Information Society (1995), pp. 35 ff.

See Staff Working Paper on Certain Legal Aspects Relating to Cinematographic and Other Audiovisual Works (2001), pp. 14 ff. Commission Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, “i2010: Digital Libraries” (2005) and Commission Recommendation on the digitization and online accessibility of cultural material and preservation (2006).

See at length van Gompel (2007), pp. 670 ff.

Collective Management proposal, Sect. 1.1.

Von Bogdandy and Bast (2002), pp. 229 ff.

See inter alia Lenaerts and Van Nuffel (2011), pp. 817 ff. See also decision from the General Court in case T-144/99—Institute of Professional Representatives EPO v. Commission, p. 50.

See case 294/83—Les Verts, p. 23, where the CJEU calls the Treaties a “constitutional charter.” See also Weiler (1991), pp. 2413 ff.; Maduro (1998), pp. 7–8; Möllers (2010), pp. 189 ff.; Everling (2010), pp. 720 ff.; Lenaerts and Van Nuffel (2011), pp. 22–24 and references cited therein.

Lenaerts and van Nuffel (2011), pp. 818; Tridimas (2006), pp. 50–51.

See Möllers (2010), p. 189.

Tridimas (2006), p. 19.

See case C-101/08—Audiolux, p. 63, and case C-174/08—NCC Construction Denmark, p. 42. See also Tridimas (2006) id., holding that, besides the gap-filling function, general principles also amount to constitutional standards.

Tridimas (2006), pp. 5–7 and 50–51.

Nevertheless, several years before the Lisbon reform, fundamental rights were already considered as general principles of EU law by the CJEU, enjoying therefore a constitutional character then, with equivalent standing to the Treaties—see case 11/70—Internationale Handelsgesellschaft, p. 4, and Tridimas (2006), pp. 5–7 and 50–51.

Lenaerts and Van Nuffel (2011), pp. 793–794 and Kaczorowska (2013), pp. 109–110. See also in particular Article 267 TFEU, establishing that the CJEU has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and the validity and interpretation of acts other institutions.

Lenaerts and Van Nuffel (2011) id.

See Berg (2007), pp. 303–304, defining content analysis as a “careful, detailed, systematic examination of a particular body of material in an effort to identify patterns, themes, biases and meanings.” Krippendorff (1982), p. 21 defines it as “a research technique for making replicable and valid inferences from data to their context.”

Krippendorff (1982), p. 52, Hall and Wright (2008), pp. 63–64.

Hall and Wright (2008), pp. 63–64.

Krippendorff (1982), pp. 115–117.

Berg (2007), p. 315.