Book review: Copyright in the Digital Single Market

This is a book review of Copyright in the Digital Single Market: Article-by-Article Commentary to the Provisions of Directive 2019/790, by our very own Kat - Professor Eleonora Rosati who has been contributing to the IPKat blog since 2012 and is Professor of IP Law and Director of the Institute of Intellectual Property and Market Law at Stockholm University and Of Counsel at Bird&Bird. Many readers will already be familiar with this title, since it won our IPKat book of the year award 2021 for best copyright book! But, for those who are yet to pick up a copy, here is what is in store:

 

The EU legislature adopted Directive 2019/790 on Copyright in the Digital Single Market (DSM) in 2019. The implementation of this Directive by Member States has become one of the most significant advances in recent EU copyright history and continues to be at the centre of the discourse whilst the provisions continue to be debated, transposed, disputed and soon to be applied [covered extensively on The IPKat of course!] 

The book begins by setting out the origin and objectives of the DSM Directive, whilst contextualising its place within the broader EU copyright architecture and reform. From the evolution of the discussions around the harmonisation of copyright in the late 1970s, and the concerns specified by the then Commission of the European Communities (now, the Commission) in its 1988 Green Paper on Copyright and the Challenge of Technology—Copyright Issues Requiring Immediate Action in light of the internal market-building objective, we learn – or are reminded of – how these initiatives led to EU and international developments in copyright, for example in the shape of the Information Society Directive 2001/29. After somewhat of a hiatus in ambition, the harmonisation agenda picked up notable pace again in 2015 with renewed policy impetus around copyright, in the form of the Digital Single Market Strategy. It was against this background that the proposal for a Directive on copyright in the Digital Single Market was made in 2016.

Rosati informs that the Directive turned out to be “significantly more detailed and complex than the proposal” but its motivation remained in line with the harmonisation agenda, as “it is premised on an internal market-building rationale.” The author goes on to explain that these include to guarantee a high level of protection for rightholders, streamline rights clearance and create a level playing field for the exploitation of works and other protected subject matter. The objectives are linked to the establishment and functioning of the EU internal market, as well as to both an incentive-based view of copyright and the Union’s objective to respect and promote culture and cultural diversity. On top of this, it also takes into account the “need to remedy the interpretative uncertainties raised by technological advancement and the emergence of new business models and actors, as well as the objective of ensuring that the former is not unduly restricted as a result of such uncertainties; and guarantee a well-functioning and fair marketplace for goods incorporating and services based on copyright works and other protected subject matter.”

As the title specifies, the book then proceeds to take the Articles of the Directive in turn to provide systematic analysis of their history, objectives, and content, as well as its relationship to other provisions and the Directive and the pre-existing acquis where relevant. Thereby providing a deeply thoughtful and thoroughly researched explanation of the Directive both as a whole and of its specific contents. The details of these sections are encyclopaedic in comprehension. The historical context and rationale provide a narrative that allows the text to be readable whilst also providing specific direction, such as in the form of analysis and definitions; thus, satisfying both the scholarly and practical reader. For example, in discussing the meaning of ‘best efforts’ in Article 17, Rosati states:

It should be also noted that the phrase ‘best efforts’ has not seemingly been translated accurately in the various language versions of the Directive, with some suggesting more of a qualitative dimension of the required efforts (the type of efforts that could be expected from the specific OCSSP at hand) and others favouring an approach based on the objective dimension of the efforts made (the type of efforts that could be expected from OCSSPs like the one at hand). In reality, it appears that the notion of ‘best efforts’ entails both a subjective and an objective appreciation, subject to an overarching proportionality assessment, the fundamental freedom to conduct a business, and the obligation under Article 17(9).

Professor Eleonora Rosati is renowned as the leading EU copyright expert and from this commentary it is clear why. No one else could have written this book, and certainly not to this standard. It is a detailed and exhaustive vade mecum for those engaging with the provisions of the DSM Directive, and it goes without saying then that it would be of interest to both academics and practitioners, including legislators and courts across the EU with an interested in EU copyright harmonisation, reform and the DSM Directive. 

The book is available in hardback and as an eBook via Bookshelf. The eBook has the benefit of being interactive, searchable and likely more convenient for those of a peripatetic lifestyle, although this Kat personally finds navigating a physical book much easier and more enjoyable!

Published: OUP, 2021

Available as hardback & eBook

ISBN: 978–0–19–885859–1 

Extent: 491 pages