«„The Role of the ECJ for the Development of Copyright in the European Communities”* by Thomas DREIER** Draft Version -I. Introduction II. ...»
„The Role of the ECJ for the Development of Copyright
in the European Communities”*
-------------- Draft Version ---------I. Introduction
II. Copyright, the ECJ and the EC-Treaty
1. The ECJ and the EC-Treaty
2. The EC-Treaty and Copyright
III. The ECJ, Copyright and Primary Community Law
1. Copyright and free movement of goods and services
2. Copyright and the principle of non-discrimination
3. Copyright and competition law
4. Other cases relevant for copyright IV. The ECJ, Copyright and Secondary Community Law
1. Secondary law and the need for Court interpretation
2. Case law V. Some questions
1. Upcoming Issues
2. Copyright and other IP-laws
3. Organisatorial matters
4. The role of the court as arbitrator VI. Concluding Remarks * This article represents the complete version of a presentation given at the annual International Study Days of the Association littéraire et artistique (ALAI) at Neuchâtel, Switzerland, on September 17, 2002. A digitised version with complete links to full texts of all sources cited is available at the homepage of the Institute for Information Law of the University of Karlsruhe, Germany, at http://www.z-a-r.de/ECJALAI./index.htm ** Prof., Dr. iur., M.C.J. (New York Univ.); Director, Institute for Information Law, University of Karlsruhe, and Honorary Professor, University of Freiburg, Germany; Vice-President of ALAI.
I. Introduction The issue. - Speaking about the development of copyright1 in the European Union, the main focus usually is on the legislative harmonisation of substantive copyright law. Up until now, seven Directives have been proposed by the Commission and issued by the European Council and the European Parliament.2 Already, some further action in the field of copyright has been announced by the Commission.3 However, one hardly thinks of the role which the European Court of Justice (ECJ), the third institutional European power, has played in the development of European copyright law. A provocative question might be: did it play a role at all? Isn’t it since long clear that copyright falls within the scope of the EC-Treaty? Or that the Treaty’s fundamental freedoms, in particular the free movement of goods mandate a restriction of the exercise of the exclusive distribution right, which is commonly referred to as „exhaustion”? Of course, the ECJ has to interpret the legislative texts which grant community rights, the community trademark4 and the community design5; moreover, both the trademark and the design Directives 6 certainly give rise to a number of questions of interpretation 1 Hereinafter, the term „copyright” shall be used as a shorthand for both copyright and rights related to copyright on the one hand, and for copyright and droit d’auteur on the other.
2 Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, O.J. No. L 122 of 17 May 1991, p. 42; 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, O.J. No. L 346 of 27 November 1992 p. 61; 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, O.J. No. L 248 of 6 October 1993, p. 15; Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, O.J. No. L 290 of 24 November 1993 p. 9; Directive 96/9/EC of the European Parliament and of the Council on the legal protection of databases, O.J. No. L 77 of 27 March 1996, p. 20; 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, O.J. No. L 167 of 22 June 2001, p. 10; Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art, O.J. No. L 272 of 13 October 2001, p. 32.
See Reinbothe, A Review of the Last Ten Years and A Look at What Lies Ahead: Copyright and Related Rights in the European Union, speech given at the 10th Annual Conference on International Intellectual property Law and Policy, Fordham university, April 2002, available at http://europa.eu.int/comm/internal_market/en/intprop/news/reinbothe04-04-02.htm 4 Council Regulation 40/94 of 20 December 1993 on the Community Trademark, O.J. No. L 11 of 14 January 1994, p. 1.
5 Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs, O.J. No. L 3 of 5 January 2002, p. 1.
6 First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, O.J. No. L 159 of 10 June 1989, p. 60; Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs, O.J. No. L 289 of 28 October 1998, p. 28.
1957: the Treaty of Rome - However, considering the state of political integration back in 1957, when the Treaty of Rome was signed, it is clear that at that time the main focus had been economic in nature. In creating the European Economic Community, the signatories of the Treaty aimed at abolishing all existing, and prevent all future, interstate trade restrictions. As the text of the article 28 (ex-article 30) of the Treaty demonstrates, at that time the free movement of goods was still hindered by quite a number of quantitative restrictions on imports and exports, which by now have ceased to be of great concern. True, in article 30 (ex-article 36), „industrial and commercial property” is mentioned as a possible source of restrictions for the free movement of goods, provided these restrictions do not arbitrarily discriminate or constitute a disguised restriction on trade between Member States. But nowhere does the Treaty speak of copyright. It seems that in 1957, there wasn’t even a need to do so.
Absent computers and databases, cable and satellite, at that time copyright industries where largely text and language based and hence more or less confined to national boundaries. Of course, transborder exploitation did take place to some extent, in particular in the areas of music, film or with regard to books in the German speaking countries (which extended even beyond the boundaries of the EEC). But first, in the 50es there was much less consumption of foreign copyrighted material even in these areas. Second, to the extent that there was, the matter was largely regulated by contractual arrangements amongst the parties involved and established well before the advent of the EEC.
Comparing this „starting point” in 1957 with the now well established and elaborated legal rules which define the intersection of copyright and EU-law, one understands how much has since then been achieved. The institution responsible for the fact that we are where we are now is none other than the ECJ.
The role of the ECJ with regard to copyright: past and future - From this it follows that on the one hand, any description of the role of the ECJ for the development of copyright within the EU has to retrace the past case law of the Court in this area of law. This case law is mainly concerned with the interpretation of primary community law in view of copyright (III.), and it has undertaken to define the intersections of copyright and the Community policies of free movement of goods and services (III.1), the principle of non-discrimination (III.2) and of competition law (III.3), the latter certainly being in the foreground of the current debate, as the ongoing litigation in the IMS Health-case7 demonstrates. In addition, the ECJ is increasingly called upon to interpret secondary community law (IV.). On the other hand, the subject of this paper likewise raises a number of issues which are of importance for the future role which the ECJ may take in the development of European copyright (V.). This comprises future legal issues to be decided (V.1), differences in the role of the court with regard to other IP-laws (V.2), organisatorial matters (V.3) and, finally, a look to the role of the ECJ as an arbitrator (V.4).
Legal literature. - In view of this by now means narrow field to be examined, it comes somewhat as a surprise that the role which the ECJ - and depending on the procedure in question also the Court of 7 Order of the President of the ECJ of 11 April 2002, case C-481/01 P(R), IMS Health Inc. v. NDC Health Corp. and NDC Health GmbH & Co. KG.
- 3 / 30 First Instance (CFI) - has played, and will continue to play regarding the development of copyright within the EU, has been little examined so far. Rather, the focus is almost exclusively on the state and the development of the substantive EU law as it relates to copyright law, and to a lesser extent on the degree of harmonisation required in order to achieve the Treaty objectives, especially in view of the principle of subsidiarity. 8 There seems to be no comprehensive monograph and hardly any article which focuses on the role the ECJ as such.9 There even isn’t a definitive count of cases in which the ECJ had to deal with copyright.10 True, it difficult to ascertain an exact number, since in some cases, issues of copyright may have been raised, but may not have been in the foreground of the decisions,11 while in other cases the issues decided dealt with other intellectual property rights, but are still likely to have effects in the field of copyright.12 This lack of attention of the subject so far may also be surprising for at least two additional reasons. First, it is obvious that the ECJ plays a major role in the development of other European intellectual property (IP) laws, notably of trademark law.13 Second, the comparison with other bodies which have the role to clarify and interpret transnational copyright principles, such as the WTO panels, in some way calls for a comparison.
II. Copyright, the ECJ and the EC-Treaty
1. The ECJ and the EC-Treaty The powers of the ECJ under the EC-Treaty. - Assessing the role of the ECJ for the development of copyright first requires to briefly recall the powers which are conferred upon the ECJ by the provisions of the EC-Treaty. According to article 220 (ex-article 164), the task of the ECJ is to ensure the proper interpretation and application of the Treaty. This means that both acts of the EU legislature and of Member States can be controlled in view of their compatibility with primary community law. In addition, the ECJ is called upon to speak authoritatively on secondary community law. While the first See Article 5 (2) (ex-Article 3b) of the EC-Treaty.
However, at the EU-Conference „European Copyright Revisited”, organised by the EU-Commission in Santiago de Compostella in June 2002, however, Bo Vesterdorf, President of the CFI, presented a paper on „The Role of Copyright and Related Rights as a Policy as compared to Other Policies”, available at http://europa.eu.int/comm/internal_market/en/intprop/news/2002-06-conference-speech-vesterdorf_en.htm (citations of this paper are to the pages of the unpublished manuscript).
10 Whereas there is a core of 39 cases assembled in the database accompanying this article, other commentators count as many as 120 cases; Rodriguez Pardo, Highlights of the Origins of the European Union Law on Copyright,  EIPR 238, at 239.
11 Such as, e.g., in the case Dior./. Evora, ECR 1997, I-6013.
12 As a recent example of the latter group one may cite the case Zino Davidoff./. A&G, case C-414/99, and joined cases 415 and 416/99 (Levi Strauss).
13 Here as well, the role of the Court is only rarely the subject of discussion; for a notable exception see Kur, Fifty Years of European Legal Integration - Intellectual Property, in: van Empel/van Gerven (eds.), Fifty Years of European Legal Integration, Kluwer, to be published fall 2002 (citations are to the manuscript).
- 4 / 30 compatibility with primary community law - concerns questions such as the competency of the EU legislature to enact certain Regulations and Directives, the compatibility of national legislation with the fundamental freedoms of the Treaty, and the timely implementation of Directives by Member States, the second - interpretation of secondary community law - mainly has to deal with the question of the proper implementation of Directives in national law (since in a first step, this involves ascertaining the true meaning of the text of the Directive in question). Contrary to trademark and design law, where interpreting secondary community law also concerns Community Regulations, in copyright interpretation of secondary community law is, of course, confined to Directives, since there is no community copyright,14 but only a bundle of more or less harmonised national copyright laws. The question of how to properly interpret the legal provisions of a Directive can rise in the course of a procedure for incomplete transposition of a Directive by one of the Member States as well as in the course of any referral procedure.
Relevant competencies of the ECJ. - Amongst the competencies granted to the ECJ under the ECTreaty, the following should be mentioned with regard to cases on copyright: