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COPYRIGHT IN THE INFORMATION SOCIETY

A Guide to National Implementation of the European Directive, Second Edition

BRIGITTE LINDNER, TED SHAPIRO

This substantially revised second edition evaluates the Directive on Copyright in the Information Society and its interpretation by the European Court of Justice in the light of its implementation and application in the EU’s 28 member states. Following the initial implementation of the Directive, many member states have enacted further legislation to supplement or refine their earlier implementation: this edition will take these important developments into account.
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PREFACE TO THE SECOND EDITION

With the Directive 2001/29/EC on copyright in the information society now approaching its 20th anniversary, Luke Adams of Edward Elgar Publishing persuaded us to update our book on national implementation of the ‘Copyright Directive’. We are grateful to Edward Elgar Publishing for its support and confidence in us.

Updating a book of this nature is a bit of a moving target. In the seven years since the first edition, the Court of Justice has been called upon to respond on a never-ending stream of references for preliminary rulings from national courts on a myriad of issues related to the Directive. The Court’s judgments impact not only the legal interpretation of the Directive but also its national implementations in all the member states. Whilst the eventual ruling may have a particular impact in the member state whence the reference originated, it is of course binding across the entire European Union. This jurisprudence may in turn give rise to legislative and judicial reforms in any number of ways.

Indeed, national parliaments in many member states have enacted further legislation in a range of areas relevant to the Directive. In certain cases, member states decided to refine or supplement their earlier implementation of the Directive. In other cases, the legislation was either to implement a subsequent directive or to address particular problems such as online copyright infringement. In yet other cases, the legislation was occasioned by a mix of the foregoing.

Meanwhile the copyright reform pendulum has swung back to Brussels. The initial part of the Digital Single Market copyright package has already been adopted and other parts are well advanced in the legislative process. As it will take several years for the member states (and the courts) to absorb these new norms, we took advantage of the proverbial lull (if ever that exists in the copyright space) to slip in a major update. Whether we will dare to do this again remains to be seen.

Copyright remains our passion and it continues to be a subject of increasing importance to an ever-growing range of stakeholders. Quite literally it touches everyone’s daily lives in ways that could not have been imagined when the Directive was first negotiated. Yet the Directive has proven incredibly resilient and future-proof.

There is certainly no shortage of writings on the Directive. Yet, a collection of essays on national implementation of the Directive in each member state by contributors from those countries has not only provided a wealth of new insights on this important European legal instrument and copyright itself, but it has also proven to be an invaluable legal resource. Our goal remains an exploration of how legislators and judges at all levels have grappled with national implementation of this remarkable instrument.

We were lucky enough to convince the architect of the Directive, Dr. Jörg Reinbothe, to once again help us set the stage with a thorough introduction to the Directive, its background and an explanation of its impact. This time around he has also considered the impact of the Court of Justice and the pending reform occasioned by the Digital Single Market project and shared his views on some orientations on the way forward. The Foreword is followed by two more stage-setting Parts. The first Part on the WIPO Treaties, which formed the basis for the Copyright Directive, has been updated to chart developments at the international level including with reference to the Beijing and Marrakesh Treaties, human rights and the role of civil society. The Second Part is on the Directive itself with a particular emphasis on the shaping of the Directive by the European Court of Justice. The purpose of these stage setters is to describe the ongoing challenges created for regional and national legislators, to identify and try to explain the complex compromises and the varying levels of discretion left to these lawmakers as they carried out their difficult legislative tasks.

As with the first edition, the key to this project remains the gathering of a group of well-versed contributors to describe how their national legislators have confronted the challenge of not only implementing the Directive but dealing with its aftermath. Once again, our contributors are an incredibly diverse group of talented lawyers who include academics, judges, practitioners and (past and present) government officials. In a few cases, we have some new contributors. This book thus contains 28 compelling stories about the Directive and the roads it has travelled. It is for this reason that this remains our contributors’ book and not ours; each chapter and the views taken therein belong purely and simply to their author. We therefore express our gratitude for our contributors’ amazing efforts and patience with us editors along with much needed assistance from our colleagues, Sunniva Hansson and Beth Dillon, and the crucial support from friends and family.

Copyright remains the driving force behind this labour of love which, although not unrelated to our usual professional activities, is entirely our own private initiative. While the diversity of views expressed by our contributors in the country chapters may not necessarily be shared by us, those taken in the parts of the book authored by us represent purely our own and are completely independent from positions taken by any future, present or past clients, partners, associates, friends or employers.

Brigitte Lindner

Ted Shapiro

London/Brussels

June 2018