The judgments of the European Court of Justice, the Court of First Instance and the directives which the member states are obliged to enact into their national laws harmonise the copyright laws of European Union member states into the copyright law of the European Union.
Copyright law in Europe can be traced back to the signature of the Berne Convention for the Protection of Literary and Artistic Works on 9 September 1886. All European Union Member States are signatories of the Berne Convention, and compliance with its dispositions is now obligatory before accession.
European Economic Community applied common standard for the copyright protection of computer programs, enacted in the directive on the legal protection of computer programs (91/250/EEC) in 1991.
A common term of copyright protection, 70 years post mortem auctoris (from the death of the author) was agreed in 1993 as the directive harmonizing the term of protection of copyright and certain related rights (93/98/EEC).
The implementation of directives on copyright has been rather more controversial than for many other subjects, as can be seen by the six judgments for non-transposition of the EU Copyright Directive (2001/29/EC).
Traditionally, copyright laws vary considerably between Member States, particularly between common law jurisdictions (Cyprus, Ireland, Malta and the United Kingdom) and civil law countries. Changes in copyright law have also become linked to protests against the World Trade Organization and globalization in general.
The European Union is a party to the following treaties:
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 15 April 1994.
WIPO Copyright Treaty (WCT) and
WIPO Performances and Phonograms Treaty (WPPT) of 20 December 1996.
A Council Resolution of 14 May 1992 requires Member States to be parties to the following treaties:
Paris Act of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) of 24 July 1971
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome
Convention) of 26 October 1961
Though the implementation of these latter treaties is subject to the other provisions of European Union Law.
The test of originality is that they are the "author's own intellectual creation": otherwise, the directives refer to Article 2 of the Berne Convention ("every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression").
Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such (Art. 9(2) TRIPS and Art. 2 WCT).
Computer programs are protected as literary works (Art. 1, D. 91/250/EEC: also Art. 10(1) TRIPS and Art. 4 WCT).
Photographs are protected by author's rights if they are the intellectual creation of the author (Art. 6, D. 93/98/EC: also Art. 9 WCT):
Member States may protect other photographs through related rights.
Databases are protected as literary works if they are intellectual creations by reason of the selection or the arrangement of their contents (Art. 3, D. 96/9/EC: also Art. 10(2) TRIPS and Art. 5 WCT): otherwise, they have a sui generis protection.
The following rights are protected by European Union law:
right of reproduction for authors, performers, producers of phonograms and films and broadcasting organisations (Art. 7, D. 92/100/EEC, replaced by Art. 2, D. 2001/29/EC: also Art. 14 TRIPS, Arts. 7 & 11 WPPT);
right of communication to the public for authors, performers, producers of phonograms and films and broadcasting organisations (Art. 3, D. 2001/29/EC: also Art. 10 TRIPS, Art. 8 WCT and Arts. 6, 10 & 14 WPPT);
right of distribution for authors (Art. 4, D. 2001/29/EC) and for performers, producers of phonograms and films and broadcasting organisations (Art. 9, D. 92/100/EEC: also Art. 10 TRIPS, Art. 6 WCT and Arts. 8 & 12 WPPT);
right of fixation for performers and broadcasting organisations (Art. 6, D. 92/100/EEC: also Art. 14 TRIPS and Art. 6 WPPT);
right of rental and/or lending for authors, performers, producers of phonograms and films (Art. 2, D. 92/100/EEC: also Art. 11 TRIPS, Art. 7 WCT and Arts. 9 & 13 WPPT), with an associated right of equitable remuneration for lending and/or rental for authors and performers (Art. 4, D. 92/100/EEC);
right of broadcasting for performers, producers of phonograms and broadcasting organisations (Art. 8, D. 92/100/EEC: also Art. 6 WPPT).
right of communication to the public by satellite for authors, performers, producers of phonograms and broadcasting organisations (Arts. 2, 4, D. 93/83/EEC)
The rights of reproduction, distribution and rental for authors of computer programs are specified in Art. 4, D. 91/250/EEC (also Art. 11 TRIPS).
Moral rights are usually considered to be a matter for the national laws of the Member States, although some countries classify some of the above rights, especially the right of communication to the public, among the moral rights of the author rather than under his rights of exploitation.
Duration of protection
The rights of authors are protected within their lifetime and for seventy years after their death (Art. 1, D. 93/98/EEC): this includes the resale rights of artists (Art. 8, D. 2001/84/EC).
For films and other audiovisual works, the seventy year period applies from the last death among the following people, whether or not they are considered to be authors of the work by the national law of the Member State: the principal director (who is always considered to be an author of the audiovisual work), the author of the screenplay, the author of the dialogue and the
composer of music specifically created for use in the cinematographic or audiovisual work (Art. 2, D. 93/98/EEC).
The rights of performers last for fifty years from the distribution or communication of the performance, or for fifty years from the performance itself if it had never been communicated to the public during this period (Art. 3(1), D. 93/98/EEC).
The rights of phonogram producers last for fifty years after publication of the phonogram, or for fifty years after its communication to the public if it had never been published during that period, or for fifty years after its creation if it had never been communicated to the public (Art. 3(2), D. 93/98/EEC, as modified by Art. 11(2), D. 2001/29/EC).
The rights of film producers last for fifty years after the communication of the film to the public, or for fifty years after its creation if it had never been communicated to the public during that period (Art. 3(3), D. 93/98/EEC).
The rights of broadcasting organisations last for fifty years after the first transmission of a broadcast (Art. 3(4), D. 93/98/EEC).
Where a work enjoyed a longer period of protection under national law on 1 July 1995, its period of protection is not shortened. Otherwise, these terms of protection apply to all works which were protected in a Member State of the European Economic Area on 1 July 1995 (Art. 10, D. 93/98/EEC).
This provision had the effect of restoring the copyrights in certain works which had entered the public domain in countries which had shorter copyright terms.
The EU Copyright Directive [2001/29/EC, Art. 11(2)] modified the term of protection of phonograms, calculating from the date of publication instead of from an earlier date of communication to the public, but did not restore the protection of phonograms which had entered the public domain under the former rules (Art. 3(2), D. 93/98/EEC, as modified). All periods of protection run until 31 December of the year in which they expire.
The directive on the resale right for the benefit of the author of an original work of art (2001/84/EC) created a right for the creators of works of art to participate in the proceeds of the resale of their work.
This right, which is sometime known by its French name droit de suite, is personal to the artist and can only be transferred by inheritance. It is calculated as a proportion of the resale price (net of tax), which varies between 4 or 5 percent for the portion of the resale price up to EUR 50,000 and 0.25% for the portion of the resale price above EUR 500,000. The total royalty is
limited at EUR 12,500, equivalent to a resale price of EUR 2,000,000. Member States may choose to exempt sales of less than EUR 3000 from royalty.
Works of art which are covered by this resale right are "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by the artist himself or are copies which have been made in limited numbers by the artist himself or under his authority."
The directive on the legal protection of databases (96/9/EC) created a sui generis protection for databases which do not meet the criterion of originality for copyright protection.
It is specifically intended to protect "the investment of considerable human, technical and financial resources" in creating databases, whereas the copyright laws of many Member States specifically exclude effort and labour from the criteria for copyright protection.
To qualify, the database must show "qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents" [Art. 7(1)].
Their creators have the right "to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database."
This is taken to include the repeated extraction of insubstantial parts of the contents if this conflicts with the normal exploitation of the database or unreasonably prejudices the legitimate interests of the creator of the database [Art. 7(5)].
Member States may limit this right in the following cases (Art. 9):
extraction for private use from a non-electronic database;
extraction for the purposes of teaching or research, to the extent justified by the non-commercial purpose;
extraction and/or reutilization for the purposes of public security or an administrative or judicial procedure.
Database rights last for fifteen years from the "completion" of the database, that is to say the point at which the criterion of substantial investment is fulfilled, or from the date at which the database is made available to the public, whichever is the later.
The protection period runs until 31 December of the year in which it expires. If there is a "substantial change" in the database which would be qualified as a "substantial new investment", a new protection period is granted for the resulting database (Art. 10).
Temporary copying which is the result of the transmission of a work or of its legal use is not covered by the exclusive right of reproduction (Art. 5(1), D. 2001/29/EC).
Member states can implement other limitations from the list in Article 5, D. 2001/29/EC, or retain limitations which were already in force on 22 June 2001.
It was agreed at the time of drafting the WIPO Copyright and Performances and Phonograms Treaties that this wording "neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention."