دانلود کتاب The Routledge Handbook of Eu Copyright Law

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Cover
Half Title
Title Page
Copyright Page
Table of Contents
List of Contributors
Preface: 30 years of EU copyright law
Acknowledgments and hope
Section I: The law and policy of the EU copyright harmonization project
1 The competence and rationale of EU copyright harmonization
Abstract
Introduction
Review of EU competence
Expansions of competence
EU Commission
Gold plating
Commission’s guidelines
Court of Justice of the EU
Conclusion
References
2 Fundamental rights in EU copyright law: an overview
Abstract
Introduction
Ownership and scope of protection
Copyright as a fundamental right
Fundamental freedoms as limits to the scope of exclusivity
Exceptions
The interpretation of copyright exceptions
The exhaustive nature of the catalogue
Enforcement
Disclosure injunctions
Blocking and fltering injunctions
Conclusion
References
3 The desirability of unification of European copyright law
Abstract
Introduction
Copyright law unifcation as part of the European common project
One market, one copyright law
Human rights and access to culture
Copyright law and unifcation: all players are in position
The CJEU’s judicial activism: the fnishing touch to a covert unifcation
The rise of “GAFA” and the efectiveness of copyright law policymaking
Conclusion
References
Case law
Ofcial documents
Section II: Copyright and related rights: when does and should protection arise?
4 The authorial works protectable by copyright
Copyright is a right of authors in respect of their works
Authorial works are literary or artistic works that constitute an author’s own intellectual creation
Works are bounded expressive objects having a certain unity and stability of expressive form
Ideas and information are not works
The denial of copyright to ideas and information abstracted from works
The denial of copyright to works whose content is indistinguishable from their form
Expressive objects whose perception as such depends on unreliable human faculties are not works
Works are original (intellectual creations of an author)
Some types of work aford insufcient scope for authorship ever to be original
Words and other expressive elements can never be original
Works the expressive form of which is determined exclusively by their nature or purpose
Some works are the product of insufcient authorship to be original in fact
Problems with the European conception of originality
Future challenges for the European conception of copyright subject matter
References
Case law
EU case law
Domestic case law
5 The Cofemel revolution – originality, equality and neutrality
Abstract
An outlook from the Cofemel decision
How the revolution got air under the wings
No way back from Infopaq
No added value or subjective assessments
But how did we suddenly get this far?
Originality, of course, but what does it mean now?
All you need is a ‘work’
Don’t stumble on the functionality stone
No categorization of works
Is a spare part a work?
No l’unité de l’art but EU cumulation
References
6 The new related right for press publishers: what way forward?
Abstract
Introduction
A tale (not only) of copyright and related rights
From national press publishers’ rights to the EU press publishers’ right
The EU press publishers’ right: more concerns than solutions
National implementations: press publishers’ right à la française between IP and competition law
What way forward?
References
Decisions and case law
Section III: The scope of exclusive rights and liability for the doing of unauthorized acts
7 The right of reproduction
Abstract
Introduction
The right of reproduction in legislative texts
International background and preparatory works
The scope of the right of reproduction in EU directives
Exceptions and limitations
CJEU case law
General principles and defnitions
Temporary reproduction and related exception(s)
Partial reproduction
Format shifting: reproduction or adaptation?
Private copying and fair remuneration
Other exceptions to the right of reproduction (Article 5(2) and (3) InfoSoc)
Conclusions
References
Case law
8 The distribution right and its exhaustion
Abstract
Distribution and exhaustion – historical overview
The concept(s) of distribution
Transfer of possession or transfer of ownership?
Any act that leads to distribution
“To the public”
The distribution right applies to cross-border situations
Application to the digital environment
Exhaustion of the distribution right – rationale and conditions
Overview and rationale
Copy criterion
Sale/transfer criterion
Consent criterion
Mandatory character
Application to the online context
Conclusion
References
Case law (CJEU)
9 The EU right of communication to the public – still looking for a good link
Abstract
Introduction
The current test
From Rafael Hoteles to STIM and SAMI – Background to the development of the communication to the public right
Elements of the test
(Step 1) ‘Communication’
(Step 2) ‘Public’
(Step 3) ‘Diferent technical means’
(Step 4) ‘New public’
(Step 5) ‘Knowledge’
(Step 5 ½) ‘For proft’
The test
Still getting it wrong
Context
High level of protection and broad interpretation
Judicial activism
Ignoring the dissemination function of copyright law
Implications of choosing the wrong criteria
Asking and answering the wrong questions
Predicting the pending cases
Joined Cases C-682/18 and C-683/18 Peterson v YouTube and Elsevier v Cyando and Case C-500/19 Puls 4 v YouTube
Case C-442/19 Stichting Brein v News Service
Case C-597/19 MICM v Telenet
Conclusion
References
Case law
10 Primary and accessory liability in EU copyright law
Abstract
Introduction
The exclusive rights of the copyright owner in the directives
The right of communication to the public
The act of ‘communication’
The notion of a ‘public’
A ‘new’ public
Knowledge or intention
The distribution right
Accessory liability in the EU
Article 17 of the Directive on Copyright in the Digital Single Market
Exceptions and limitations
Injunctions
Conclusion
References
Case law
11 Proving copyright protection and infringement: lessons from the CJEU
Abstract
Introduction
Proof of copyright outside the scope of harmonization? Lack of harmonization and procedural autonomy
From harmonizing substantive law to harmonizing the law of evidence: the examples of trade mark and design law
Efectiveness as a limitation on procedural autonomy
Proof of copyright inside the scope of harmonization: fair balance as a paradigm
A blueprint for proving copyright protection in the EU
Conclusion
References
Case law
Court of Justice
General Court
AG Opinions
Domestic case law
Section IV: The state of copyright exceptions and limitations
12 The quotation exception under EU copyright law: paving the way for user rights
Abstract
Introduction
Permitted quotations under international and EU copyright law
Permitted quotations under CJEU case law
The purpose and character of the use
The kind of copyright-protected work
The amount and substantiality of the portion taken
The efect of the use upon the potential market
The copyright balance: exclusive rights, exceptions and fundamental rights
The legal nature of the quotation exception
Conclusion
References
Case law
13 Exceptions as users’ rights?
Abstract
Introduction
Remarks on the legal nature of copyright exceptions
Rules and exceptions
Exceptions, scope limitations and users’ rights
Construing users’ rights in the EU copyright framework
From derogations to autonomous sources of rights
Expressions of fundamental rights
Fair balance and proportionality
Intellectual property as fundamental right
A “human” right?
Making sense of Article 17(2) of the EU Charter: not an absolute right
The efect of Article 17(2) on exceptions and limitations
Users’ rights after the DSM Copyright Directive
The prohibition of contractual override of exceptions and limitations
New copyright exceptions: the case of out-of-commerce works
Conclusion
References
Case law
14 On the wax or wane? the influence of fundamental rights in shaping exceptions and limitations
Abstract
Introduction
The legal framework of fundamental rights
The tensions between fundamental rights and copyright explained
The rise of fundamental rights concerns in CJEU copyright exception jurisprudence
Increasing importance of the fundamental freedoms’ framework, broad discretion for Member States and problems ahead
Conclusion
References
Books
Journal articles
Other sources
Case law
15 Artificial intelligence and text and data mining: a copyright carol
Abstract
Introduction
The ghost of the copyright present
The ghost of the copyright past
A purposive test for assessing the infringement of the reproduction right
A traditional and a purposive interpretation of the extraction right
The ghost of the TDM yet to come
Unfnished business
Conclusions
References
Case law
16 The treatment of humor in US copyright law with a comparative glance at the EU
Abstract
Introduction
Setting the scene
Humour and American copyright law
Folsom v. Marsh
Fair use and the 1976 Act
Parody and fair use
Parody in the EU
Deckmyn v. Vandersteen
References
17 The nature and content of the three-step test in EU copyright law: a reappraisal
Abstract
Introduction
The three-step test in international law and the EU’s commitments
The introduction and proliferation of the three-step test in international law
The scope of the international three-step test
The implementation of the three-step test into EU law
The three-step test in the acquis
EU three-step test: limit to Member State discretion or subjective duty of every user?
The content of the EU three-step test
Concluding remarks
References
Case law
Dispute Settlement Body of the WTO
European Court of Human Rights
Court of Justice of the European Union
Supreme Court of the Netherlands
Section V: Copyright enforcement: the technological and cross-border dimensions
18 Website blocking under EU copyright law
Abstract
Introduction
Structurally copyright infringing websites
Website Blocking: Defnition and methods of implementation
The EU legal framework
Art. 8(3) of the Copyright Directive 2001/29
Purpose
Access providers as intermediaries
Infringement of copyright or related rights
Fundamental rights and proportionality
Practical relevance in the Member States and outlook
References
Case law
European Union
Domestic case law
19 Location, location, location! copyright content moderation at non-content layers
Abstract
Introduction
Functioning of the DNS and its location within the content blocking landscape
A copyright twist: domain names and the DNS as a case of “linking”?
Liability exemptions in the E-Commerce Directive
DNS services and the E-Commerce Directive
The case of IP address rental
The case of content delivery networks
Information about the infringer: the practical role of registration data
“Voluntary” arrangements
Making sense of “location” in the enforcement of copyright
References
Case law
CJEU
Domestic case law
20 Jurisdiction and choice of law in online copyright cases
Abstract
Introduction
Jurisdiction
The accessibility approach
Extraterritorial jurisdiction
Choice of law
The targeting approach on the level of substantive law
Ubiquitous infringements
Conclusions
References
Case law
21 Enforcement of European rights on a global scale
Abstract
Introduction
Twenty years ago … Licra v Yahoo!
Global enforcement: an international trend?
Global enforcement in the EU
C-507/17 Google v CNIL
C-18/18 Glawischnig-Piesczek v Facebook
A Pilate’s decision?
Global or local enforcement?
Limiting conficts and promoting international coexistence
A subject matter specifc balanced approach
Conclusions
References
Case law
Section VI: The Court of Justice of the European Union
22 The multifaceted influence of the Advocates General on the Court of Justice’s copyright case law: legal secretaries, literature and language
Abstract
Introduction
State of the art – previous empirical studies on Advocates General opinions
Methodology
The Advocate General
Selection
Role
Allocation of cases
23 Rationales and litigation strategy of the French government before the CJEU in copyright cases
Abstract
Introduction
The rationales behind the active stance of the French government in copyright matters
Providing a better understanding of the relevant French law before the CJEU
Defending the compatibility of French law with EU law
Dissemination of legal solutions established by French courts
Case studies
The right of communication to the public
Requests for a change in CJEU case law concerning exercise of the right of communication to the public in the physical world
Adapting the right of communication to the public to the digital world
The private copying exception
Conclusion
References
Case law
24 Reading tea leaves differently? a comparison of the interpretive fingerprint of the CJEU and the US Supreme Court in copyright law
Index