by Axel Metzger
1. Character and purpose
Copyright (droit d’auteur, Urheberrecht, diritto d’autore, derecho de autor, auteursrecht) protects the creative works of authors as their intellectual property. Traditional subject matters of copyright protection are literature, music, works of arts and science. Today, photographic works, computer programs, databases and, in many jurisdictions, works of applied arts are protected by copyright. As such, copyright provides the legal basis for the manifold business models of today’s media industries, information and technology services and the cultural sector. Copyright protects the author both in his economic and moral interests in the work and provides him with the exclusive right to prohibit the use of his works or to grant licences. This allows authors and investors to amortize the costs of production of creative works. The downside of the exclusive right of authors and their co-contractors is that exclusivity may impede significantly the public access to information and cultural content. Therefore, copyright protection expires after a limited term of protection which is currently 70 years after the death of the author in the European Union. Moreover, specific limitations and exceptions provide safeguards for the public interest concerning access to copyright protected information and other contents. Copyright has been harmonized since the early 1990s by eight directives of the European Union and a growing body of case law of the ECJ. Additionally, it is subject to a tight net of international Conventions.
2. Historical perspective and current trends
The roots of copyright in the sense of a comprehensive protection of creative works may be traced back to the age of the Renaissance when the development of modern book printing urged the need for protection against copying. Since the late 15th century, the seigneurs granted privileges to letterpress printers or publishers or directly to the authors to protect them from unauthorized reproduction of books and other works. Yet the first statutory enactments of copyright, especially the English Statute of Ann of 1710, still primarily focused on the protection of publishers. It was only later, under the influence of the natural law movement, that the question was raised whether the natural person creating the work should be the original owner of the copyright in the work. In the late 18th century, a vivid debate among philosophers and lawyers arose on the illegality of the reproduction of books and the rights of authors. The enactments following the French Revolution answered that claim with the explicit recognition of the author’s copyright in his works. Other jurisdictions followed this approach and recognized the personal character of the author’s interests and his primary ownership of the exclusive right. But the repercussions of the personal rights approach to copyright were not equally strong in all European jurisdictions. Whereas many continental jurisdictions, especially Austria, Belgium, France, Germany, Italy, Poland, Romania and the Scandinavian countries recognized the moral rights of authors, the English law stuck to the old conception of a primarily economic approach to copyright. This traditional dichotomy between the continental droit d’auteur systems and the English copyright system has vanished for the most part since the adherence of the United Kingdom to the Berne Convention (see 4. below) and the harmonization of the laws of the European Union regarding some of the core issues of copyright law.
The issue of initial ownership of the exclusive right is the major difference between the droit d’auteur and the copyright approach today. Most continental copyright statutes define the natural person who has created the work as the initial owner of the copyright of the work, comprising both moral and economic rights, even if the work has been created in the course of an employment relationship. By contrast, in the United Kingdom the employer may claim the right according to the ‘work made for hire’ doctrine. A similar concept is also found in Dutch copyright law. Therefore, the different approaches on both sides of the English Channel should not be exaggerated.
Further differences may be found regarding the transferability of the copyright. Whereas British, Dutch, Irish and Swiss law allow for the transfer of copyright; Austrian, German and Croatian law deny any such transfer. This restriction on the freedom of contract may be explained by the so-called ‘monist’ approach underlying the respective statutes. According to the monist theory, copyright is a unitary right comprising both the economic and moral interest of authors which, as a partially personal right, may not be transferred. In the middle of the two approaches is the ‘dualist’ theory which allows for the transfer of economic rights of authors but denies any transfer or waiver of moral rights. This approach may be found in Belgium, France, Greece, Italy, Portugal and Spain.
Nevertheless, for most major issues the copyright laws of the Member States of the European Union have converged in the last decades. Today copyright protection does not require any registration or other formality. This principle is not only accepted in the European Union but also in Norway, Russia, Switzerland and Turkey. The clear tendency in Europe, during the last decades, was to lower the bar significantly with regard to protection requirements. In the 19th century, copyright protection was granted to a small number of original works of literature, science and arts. Today, even trivial creations of everyday routine may be protected in most jurisdictions. Moreover, copyright law has opened the floodgates to computer programs (software protection (copyright and patent law)) and databases (database protection), which have undermined the traditional concept of copyright law and changed its character to an intellectual property right providing protection for almost all types of products and services of modern media industries.
The last decades saw the expansion of not only the subject matters covered by copyright law, but also the scope of the exclusive right given to authors and their contracting partners. This is particularly crucial concerning the mere use of copyright protected materials on the internet. Today, the use of software, databases or other digital content requires authorization by the rightholder since the exclusive right of reproduction covers temporary acts of reproduction which are technically necessary to run a software program or to browse a website. The traditional and also the new limitations and exceptions do not cover many cases of such mere use. Therefore, the end user has to rely on the explicit or implicit authorization of the rightholder. This expansion of the exclusive rights can be found in all Member States of the European Union and abroad. Additional protection for rightholders is effected by related rights and by the legal protection afforded to technological measures (copy protection, encryption, etc) as imposed by the directive on information society, copyright law.
The expansion of exclusive rights has not been echoed by an adequate development of new limitations and exceptions. Most European copyright Acts provide lists of limitations and exceptions. Some of these limitations and exceptions grant privileges to certain groups of users (eg disabled persons, schools, etc) or for certain types of use (eg for educational purposes, private use, etc) without any requirement of fair compensation; this is typically the case for the right of quotation. Other limitations and exceptions require the payment of an equitable remuneration to a collecting society; this model is often used for private copy exceptions. But this traditional catalogue of limitations and exceptions has only been expanded hesitantly in the last years, obviously because music and film companies have experienced a tremendous decrease of sales since the advent of the internet and its new technological means of disseminating and receiving media contents. The traditional media industries have not yet been successful in establishing new internet appropriate business models that are acceptable to customers. Instead, they have lobbied with success for a higher level of protection of their intellectual property rights with only very narrow limitations and exceptions. This shortcoming of limitations and exceptions is not only critical in the field of private use, but is also a major problem for schools, universities, archives, scientific organizations and for internet service providers, eg search engines.
3. European Union law
The European Union has since the early 1990s been very active in harmonizing copyright law in Europe. First, Dir 91/250 (codified version Dir 2009/24) harmonized the protection of computer programs within the internal market (software protection (copyright and patent law)). According to the directive a computer program is protected as a literary work if it is original in the sense that it is the author’s own intellectual creation. No other criteria are to be applied to determine its eligibility for protection. Compared to traditional copyright concepts, the directive broadens the exclusive rights of authors and their contracting partners and provides a very restrictive set of limitations and exceptions. Another remarkable feature is the allocation of all economic rights to the employer in case of works created by employed programmers.
It followed Dir 92/100 (which was repealed and replaced by Dir 2006/115) on rental right and lending right and on certain rights related to copyright in the field of intellectual property recognizing an unwaivable right of the author to obtain equitable remuneration for renting his works. Moreover, the directive harmonized the rights of performing artists, broadcasting organizations and producers of phonograms. Shortly thereafter, the directive on satellite broadcasting and cable retransmission (Dir 93/83) was enacted to harmonize specific aspects of copyright and related rights regarding satellite and cable broadcasting. Also in 1993, Dir 93/83 (codified version Dir 2006/116) on the term of protection of copyright and certain related rights harmonized the term of protection for copyright and set it at seventy years after the death of the author. The term of protection of the rights of performing artists, phonogram and film producers and broadcasting organizations was determined to be fifty years after the performance, fixation or first broadcasting.
The database directive (Dir 96/9) enacted harmonized rules for the protection of databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation. In addition, the directive introduced a new ‘sui generis right’ of protection for database producers that is not contingent on the original creation of an author but on a substantial investment. The directive confirmed the general trend of EU copyright law which aimed to provide for broad exclusive rights of authors as well as owners of related rights and to restrict the scope of limitations and exceptions.
In 2001, two directives were adopted. First, Dir 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society was enacted. The directive harmonized the main economic rights of authors and their co-contractants, namely the right of reproduction, the right of distribution and the right of communication to the public as well as that of making a work available to the public. In addition, the directive adopted a list of limitations and exceptions, which for the most part are optional for the Member States. Articles 6 and 7 of the directive also set the obligations of the European Union and the Member States flowing from the World Intellectual Property Organization (WIPO) Treaties of 1996 (see 4. below) regarding technological measures and rights-management systems. Directive 2001/84 on the resale right for the benefit of the author of an original work of art (artist’s resale right (droit de suite)) led to the Union-wide recognition of the artist’s right to receive a royalty based on the sale price obtained for any resale of the work involving art market professionals as sellers, buyers or intermediaries.
Directive 2004/48 on the enforcement of intellectual property rights (intellectual property (enforcement)) is the most recent European legislative enactment regarding copyright. It provides uniform rules regarding the remedies for infringement of copyright, patents, trademarks and other intellectual property rights along with uniform procedural means regarding the enforcement of such rights. In 2005, the European Commission published a recommendation on the management of online rights in musical works. The recommendation put forward measures for improving the EU-wide licensing of copyright for online services. In 2008, a green paper on copyright in the knowledge economy was published and was followed by a communication by the Commission in 2009. This last initiative focused on limitations and exceptions in the areas of scientific and scholarly publishing along with the role of libraries, researchers and persons with a disability. Finally, the Commission introduced in 2008 a proposal for an amendment to Dir 2006/116 on the term of protection of copyright and related rights which primarily sought to extend the term of protection for the rights of performing artists and producers of phonograms from 50 to 95 years.
In addition to the directives, recommendations and Green Papers, the ever-growing body of case law of the European Court of Justice (ECJ) has to be taken into account as an essential part of European copyright. The most important principles are the Union-wide recognition of the exhaustion of the right of distribution (ECJ Case 78/70 – Deutsche Grammophon v Metro  ECR 487), non-discrimination of nationals of other Member States (ECJ Joined Cases C-92/92 and C-326/92 – Phil Collins and others  ECR I-5145) and the territoriality principle for copyright and neighbouring rights (ECJ Case C-192/04 – Lagardère v SPRE  ECR I-7199).
As a conclusion, the following contours of the emerging European copyright law system may be derived from the acquis communautaire whose requirements for protection are not very strict. Today, even a low level of originality may suffice for copyright protection. Moreover, primarily functional or technical subject matters like software or databases are eligible for copyright protection. At the same time, the exclusive rights of authors and their contracting partners have been extended. Additional protection may be obtained through neighbouring rights, ie performing artist’s or phonogram producer’s rights, and by use of technological measures and rights-management systems. By contrast, limitations and exceptions have not been widened to the same extent. This, in sum, has shifted the balance of interest to the benefit of authors and rightholders at the expense of users and competitors. Until now, moral rights have been so often removed from European copyright law that their importance will be undermined in the long run. Another area that is almost untouched by the European Union is contract law in the area of copyright, eg publishing contracts. Other missing areas include collecting societies and initial ownership in copyright, especially in employment relationships. Provisions concerning these areas can only be found in the computer programs directive of 1991.
4. International Conventions
In the area of copyright law, international Conventions are a legal source of primary importance. The oldest and still most essential treaty regarding copyright is the Berne Convention of 1886. Today more than 160 states have ratified the Convention, including the Member States of the European Union and most other industrial states like China, Japan, Russia, Switzerland and the United States. The Convention has been revised several times; the most recent of these revisions occurred in Paris in 1971. The main principle of the Convention is the national treatment of authors coming from other Member States of the Convention. The enjoyment and the exercise of these rights may not be subjected to any formality. Today, copyright protection without registration or other formalities is recognized in most jurisdictions. An important step for this development was the accession of the United States to the Convention in 1989.
Besides the national treatment principle, the Berne Convention provides for certain minimum rights which the Member States must confer to the nationals of other Member States, inter alia, the reproduction right, the broadcasting right, the translation right and basic moral rights. Additionally, the Convention determines a minimum term of protection of fifty years. These minimum rights have, even without a duty of the Member States, led to a certain harmonization of the internal rules on the subjects covered since many Member States have decided to grant the Berne standards not only to nationals of other Member States but also to their own citizens. However, lacking a central court or other judiciary institution, Member States have applied rather divergent interpretations of the Convention.
The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 1994 has further amplified the importance of the Berne Convention. WTO members must recognize the standards of the Berne Convention supplemented by additional minimum rights (‘Berne plus approach’). Only the Berne Convention’s rules on moral rights have not been incorporated in the WTO system.
The Berne Convention was supplemented in 1996 by two new Conventions negotiated at WIPO. Both Conventions have been ratified by more than eighty states including the major industrial states. The WIPO Copyright Treaty is a special agreement within the meaning of Art 20 Berne Convention. It recognizes explicitly computer programs and (original) databases as copyright protectable subject matter and provides for additional minimum rights, especially the right of distribution and the right of communication to the public. Moreover, Member States are obliged to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures. The WIPO Performances and Phonograms Treaty is an independent treaty covering some of the most important related rights. It provides for the national treatment principle and minimum rights for performing artists and phonogram producers and obliges Member States to provide legal protection for technological measures.
Another treaty of central importance regarding related rights is the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961, the so-called ‘Rome Convention’. More than eighty states have ratified the Convention, but not the United States and China. The Rome Convention follows the regulatory structure of the Berne Convention: it provides for national treatment and minimum rights for performing artists, producers of phonograms and broadcasting organizations. The Rome Convention has played an important role for the international acceptance of related rights.
Axel Metzger, ‘Europäisches Urheberrecht ohne Droit moral?’ in Festschrift Gerhard Schricker (2005) 455; Jacob Hendrik Spoor, Dirk WF Verkade, Dirk JG Visser, Auteursrecht (3rd edn, 2005); André Lucas and Henri-Jacques Lucas, Traité de la propriété littéraire et artistique (3rd edn, 2006); Thomas Dreier and Bernt Hugenholtz (eds), Concise European Copyright Law (2006); William Rodolph Cornish and David Llewelyn, Intellectual Property (6th edn, 2007); Lionel Bently and Brad Sherman, Intellectual Property Law (3rd edn, 2008); Matthias Leistner, Konsolidierung und Entwicklungsperspektive des europäischen Urheberrechts (2008); Haimo Schack, Urheber- und Urhebervertragsrecht (5th edn, 2010); Michel M Walter and Silke von Lewinski (ed), European Copyright Law (2010); Gerhard Schricker und Ulrich Loewenheim (ed), Urheberrecht (4th edn, 2010); Paul Katzenberger, Gerhard Schricker, Erich Schulze and Konrad Zweigert (eds), Quellen des Urheberrechts (looseleaf).