Happy 20th birthday, InfoSoc Directive!

May 2021 marks twenty years since the adoption—on 22 May 2001—of the InfoSoc Directive.¹ The first EU directive to realize the horizontal harmonization of copyright’s main exclusive rights (reproduction, communication and making available to the public, and distribution) and related exceptions and limitations, this legislative instrument has remained the most ambitious EU harmonization effort in the copyright field for a very long time. Only the 2019 DSM Directive² is comparable—in terms of ambitiousness and reach—to the 2001 InfoSoc Directive. Importantly, the (hi)story of the InfoSoc Directive is a telling example—or even a cautionary tale—of what EU harmonization initiatives entail.

Policy discourse around harmonization of copyright laws began in the late 1970s.³ Before any policy initiative was undertaken, it became apparent—also through litigation reaching the then European Court of Justice—that copyright protection and differences in the laws of individual Member States had an internal market relevance. The 1988 Commission’s Green Paper⁴ marked the start of a more concrete discourse around copyright harmonization, in light of the internal market-building objective. The first directives touched upon specific areas, by harmonizing the conditions for and scope of protection of computer programs⁵, related rights⁶, satellite and cable⁷, term⁸, and databases.⁹ In parallel with these ad hoc instruments, the policy agenda gradually became more ambitious and increasingly stressed the relationship between copyright and the competitiveness of the EU economic system as a whole.¹⁰ At the international level, in 1996, the WIPO Internet Treaties were adopted.

The InfoSoc Directive thus represents the zenith of a lively and fruitful period for the EU copyright harmonization process. After its entry into force, however, the harmonization agenda lost momentum. With the exception of limited action in the fields of enforcement¹¹, orphan works¹² and collective rights management¹³, not much happened—on a policy and legislative level—until the 2015 Digital Single Market Strategy¹⁴ and follow-up initiatives, notably the DSM Directive.

Yet, EU copyright was anything but still (and dull) in 2001–2015. The Court of Justice of the European Union (CJEU) and its case law took centre stage during that period. Since Laserdisken¹⁵ and SGAE¹⁶ in 2006, the CJEU has decided over one hundred referrals for a preliminary ruling concerning the interpretation of the InfoSoc Directive. In significant instances, the Court has not limited itself to interpreting its provisions, but has actually added (lots of) flesh on their bones and pushed the boundaries of harmonization beyond the letter and—in some cases—probably also beyond the intention of EU legislature. Examples include the requirements for copyright protection (e.g. notions of work¹⁷ and originality¹⁸), the construction of exclusive rights and the border between primary and (formally unharmonized) secondary liability for copyright infringement¹⁹, the construction of exceptions and limitations, and the (limited) freedom left to EU Member States.

What does, in the end, the story of the InfoSoc Directive tell and teach us about the entire EU copyright harmonization process (including with reference to the DSM Directive)? First, that the path to EU copyright harmonization is ridden with obstacles and getting to the finish line—that is: the adoption of a legislative instrument—is anything but ‘easy’. Secondly, that the dialogue between national courts and the CJEU is unavoidable, necessary, and healthy. Thirdly, that greater uniformity is of ever increasing importance if the materially interconnected and dematerialized market we have in Europe is intended as one that should be devoid of undue barriers to the free movement of copyright content and copyright-based services. Happy 20^th birthday, InfoSoc Directive!

Footnotes

1

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001, p. 10–19.

2

Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ L 130, 17.5.2019, p. 92–125.

3

For instance, in 1978 Adolf Dietz published a study on copyright harmonization which he had prepared at the request of the then Commission of the European Communities: A Dietz, Copyright law in the European Community (Sijthoff & Noordhoff:1978).

4

Commission of the European Communities, Green Paper on Copyright and the Challenge of Technology – Copyright Issues Requiring Immediate Action, COM (88) 172 final.

5

Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ L 122, 17.5.1991, p. 42–46.

6

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, OJ L 346, 27.11.1992, p. 61–66.

7

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, OJ L 248, 6.10.1993, p. 15–21.

8

Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, OJ L 290, 24.11.1993, p. 9–13.

9

Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77, 27.3.1996, p. 20–28.

10

European Commission, Green Paper of 27 July 1995 on Copyright and Related Rights in the Information Society, COM (95) 382 final; European Commission, Communication from the Commission, Follow-up to the Green Paper on Copyright and Related Rights in the Information Society, COM (1996) 568 final.

11

Corrigendum to Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004), OJ L 195, 2.6.2004, p. 16–25.

12

Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works, OJ L 299, 27.10.2012, p. 5–12.

13

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, OJ L 84, 20.3.2014, p. 72–98.

14

European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Digital Single Market Strategy for Europe, /* COM/2015/0192 final */.

15

Laserdisken, C-479/04, EU:C:2006:549.

16

SGAE, C-306/05, EU:C:2006:764.

17

Levola Hengelo, C-310/17, EU:C:2018:899.

18

See, most recently, Brompton Bicycle, C-833/18, EU:C:2020:461, at [23], Cofemel, C-683/17, EU:C:2019:721, at [30]-[31], Funke Medien, C-469/17, EU:C:2019:623, at [19], all referring to the CJEU understanding of originality as settled case law.

19

See, most tellingly, Opinion of Advocate General Szpunar in Ziggo, C-610/15, EU:C:2017:99, at [3]. Cf, critically, Opinion of Advocate General Advocate General Saugmandsgaard Øe in YouTube/Cyando, C-682/18 and C-683/18, EU:C:2020:586, at [103].

Author notes

Editor of the Journal of Intellectual Property Law & Practice; Professor of Intellectual Property Law and Director of the Institute for Intellectual Property and Market Law (IFIM) at Stockholm University.