Book Review: The Routledge Handbook of EU Copyright Law

The Routledge Handbook of EU Copyright Law is edited by our very own perma-Kat Professor of Eleonora Rosati, who (in case readers didn’t already know) is Professor of Intellectual Property Law and Director of the Institute for Intellectual Property and Market Law (IFIM) at Stockholm University, Guest Professor at CEIPI-University of Strasbourg, Research Associate at EDHEC Business School, Associate of CIPIL-University of Cambridge (UK), and Of Counsel at Bird & Bird.

Image:  Ana Kocmut-Saunders

As well as offering a review of the book, this post also provides readers with a 20% discount code and details of the launch event taking place on 26 May 2021, see below for full details.

Eleonora Rosati sets the context for the book in the preface titled; 30 Years of EU Copyright – A Celebration of the Discourse Around EU Harmonization, providing different perspectives and reflections on the overall process that has led to “both an increasingly rich, heterogeneous, and complex EU copyright legislative framework…and a plethora (more than one hundred) of equally rich, heterogenous, and complex decisions by the CJEU.”

From there, the handbook is presented in 6 parts, made up of 24 chapters, authored by the leading academics and lawyers. 

Section I – The law and policy of the EU copyright harmonization project

As the title suggests, this first section covers the law and policy of the EU harmonisation project. It does this in three chapters. First, Ana Ramalho discusses the competence and rationale of EU copyright harmonization; the cornerstone of its competence being the establishment and functioning of the internal market. 

In the second chapter, Tito Rendas provides an overview of the fundamental rights in EU copyright law. As it is well established by the CJEU, these fundamental rights have horizontal effects which must be balanced fairly. This chapter provides an insight into the influence of fundamental rights in the areas of copyright ownership and scope, exceptions and enforcement... which Rendas argues is, in the end, somewhat superficial.

Third, Tatiana-Eleni Synodinou critically examines the question of unification of European copyright law. The author argues that the EU Commission should speed up the timeline and introduce a mandatory European unified copyright law at an earlier stage. Partly, as she demonstrates, because the journey has already begun as well as due to the challenges posed by online technology. Without such forward thinking action, the author argues, the more interconnected the world becomes, the more likely that copyright will be seen as a regulatory barrier to a global cultural and economic forum. 

Section II – Copyright and related rights: when does and should protection arise?

The second section focuses on copyright subsistence, in three chapters. Justine Pila authors chapter 4 titled; The Authorial Works Protectable by Copyright, which provides an in-depth analysis of the notion of a ‘work.’ Pila exposes three legal issues: the meaning of the terms authorial, the properties of an authorial work, and the degree to which subject matter must possess those properties in order to be authorial. Through analysing these questions, Pila argues that the CJEU's formalistic conception of the constitutive properties of authorial works lacks coherence, fails to explain existing case law and is inconsistent with the usual meaning of authorial work in ordinary language and with the natural of copyright as an author's right. Concluding, Pila considers the future issues such as in the case of artificial intelligence:

What artificial intelligence and other transformative technologies do instead is underline the socially evolving nature of authorship as a creative human practice, and the need for legal conceptions of the authorial works protectable by copyright to reflect this.

Chapter 5, The Cofemel Revolution – Originality, Equality and Neutrality by Marianne Levin reflects on the notion of originality, and the interface between copyright and design protection. Chapter 6 – The New Related Right for Press Publishers: What Way Forward? By Silvia Scalzini covers the rationale, requirements and limitations of the 2019 press publishers right.

Section III – The scope of exclusive rights and liability for the doing of unauthorized acts

Section three is all about the scope of the exclusive rights and liability for infringement. In 5 chapters it covers the harmonised rights; reproduction (by Caterina Sganga), distribution and its exhaustion (by Ole-Andreas Rognstad), and communication/making available (Justin Koo). Koo argues that despite over 20 decisions since 2006, communication to the public continues to evade certainty and predictability and the CJEU "is still getting it wrong." The chapter first outlines the current test for infringement of the communication to the public right, then it discusses the context of the decisions and highlights the main issues. 

This is followed by harmonised and unharmonized liability of primary and secondary infringement (Christina Angelopoulos). Lastly, in chapter 11, Julien Cabay discusses proving infringement and recommends a blueprint for proving copyright protection in the EU that strikes a fair balance between the relevant fundamental rights. 

Section IV – The state of copyright exceptions and limitations

The fourth section is dedicated to everything exceptions and limitations. In 6 chapters it covers quotation (Stavroula Karapapa), characterising exceptions as user rights (Maurizio Borghi), the influence of fundamental rights in shaping exceptions (Sabine Jacques), artificial intelligence and text and data mining (Alain Strowel and Rossana Ducato). 

Tee-hee!
Image: Elizabeth Phung

In chapter 16 Bill Patry provides an absolutely delightful comparative analysis of humour in US law and parody in the EU, describing his chapter as discussing:

the frustrations that people who are funny have with legislators and judges who are not. And it pokes fun at those whose writing about funny things is abstract and not funny.

This section concludes with a chapter by Daniël Jongsma which sets out a re-assessment of the ever popular three-step test. The author suggests that the test is principally intended to ensure compliance with international law, which means the test should not be understood as delineating the precise scope of protection, nor does it require implementation into national law. The author stresses that the CJEU ought to adjust its approach in applying the test. 

Section V – Copyright enforcement: the technological and cross-border dimensions 

Section five covers copyright enforcement, in four detailed chapters. The authors of the first two chapters cover blocking injunctions (Jan Bernd Nordemann and Sebastian Felix Schwemer), while the second two focus on private international law of jurisdiction (Lydia Lundstedt) and global enforcement of European rights (Giancarlo Frosio). 

Section VI – The Court of Justice of the European Union

The last section of the book discusses - as Eleonora eloquently describes it – the protagonists of the CJEU. Estelle Derclaye considers the influence of the Advocates General, which we understand to be highly influential, as well as that of legal secretaries which is less known. The chapter provides an insightful study on the cases where the AGs opinion was followed in full, in part, or not followed, then it counts the references to the literature relied on by the AGs. The chapter also demonstrates that some languages are more relied upon by AGs and are, therefore, more influential than others.

We conclude that, in view of the weight English, French and German carry, it is advisable either that authors from Member States whose language it is not, publish their research also in one of those languages in open access.

Subsequently, Daniel Segoin provides a French perspective on intervening in CJEU proceedings, and Frederic Blockx delivers a comparative analysis on the CJEU and the US Supreme Court approaches to copyright law.  

This substantial handbook is a must have for those interested in EU copyright law. Since the handbook not only sets out the current state of play, but also engages with all the core issues around EU copyright, including looking to areas of development both in the and technology, it is essential reading for those studying, researching and practising copyright law. It will, naturally, be of particular relevance to those with an interest in EU copyright law, harmonisation, subsistence, infringement, exceptions and enforcement, as well as the interplay between copyright and fundamental rights.

To celebrate the publication of The Routledge Handbook of EU Copyright Law, IFIM is delighted to host an online conference to discuss the current state and future of EU copyright law together with the authors of the individual chapters of the Handbook on 26 May 2021, readers can find full details and sign up to the event here. 

Publication date: 22nd April 2021

ISBN 9780367436964

Available in Hardback & eBook 

Publisher: Routledge

550 Pages 14 B/W Illustrations

Hardback £190

20% Discount Available - enter the code FLY21 at checkout