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Trial lecture - time and place
Adjudication committee
- Professor John Asland, University of Oslo (leader)
- Professor Estelle Derclaye,University of Nottingham (1. opponent)
- Professor Jonathan Griffiths, University of London (2. opponent)
Chair of defence
Dean Marianne Jenum Hotvedt
Supervisors
- Professor Ole-Andreas Rognstad
- Professor Christophe Hillion
Summary
Affording copyright protection for authors of their works is essential to incentivise artistic and cultural production. Copyright law grants authors of literary and artistic works exclusive rights if the criteria for copyright protection are met. Equally important as the question of whether a creation is protected by copyright is the question of the scope of protection, i.e. the infringement assessment — how do you determine whether a similar creation infringes on the rights to the work? What constitutes exploitation of the work where only a part of the work is used in a modified manner for the purposes of creating a new work? Despite its importance, this topic has received limited attention in academic literature and research, especially in an EU context.
In short, the infringement assessment concerns the assessment of whether a subsequent creation that is similar to the work but not identical, infringes the author's exclusive right. In the case of identical copying, this is not problematic as it is clearly a use of the work. However, if parts of a work have been reproduced in a modified version or in combination with new elements, it immediately becomes more complicated and it is necessary to assess whether the modified version constitutes a reproduction of the work. On the one hand, this involves assessing whether the reproduced parts are protected by copyright and, on the other hand, comparing the protected subject matter with the alleged infringement to determine whether the latter exploits the work in a manner that constitutes infringement.
The thesis explores the legal norms and principles for determining the scope of protection of a work in EU copyright law. At the national level, different approaches to this assessment have developed in the Member States, and it has traditionally been perceived as an area that has not been particularly affected by the (fragmented) EU harmonisation of copyright. This did not change significantly after the implementation of the copyright directive in 2001 (the “InfoSoc Directive”), which harmonises parts of copyright law, including the exclusive rights for authors of their works and the exceptions and limitations to these rights. The author’s rights include the rights to reproduce the work and to communicate the work to the public.
The initial perception seemed to be that the InfoSoc Directive’s regulation of the author’s rights primarily harmonised the acts of exploitation (such as what constitutes a “reproduction” and a “communication to the public”), but not the concept of the “work” and the scope of protection of the work. This was largely caused by the lack of a legislative definition of the “work”. The perception was therefore that national infringement assessments, which are primarily concerned with the scope of protection of the work, were not significantly affected by the InfoSoc Directive. This was further reinforced by the fact that the adaptation right (the right of authorising adaptations of the work) is not explicitly harmonised in the Directive, and the infringement assessment is typically concerned with adaptation scenarios or other forms of modified copying.
Subsequent case law from the Court of Justice of the European Union (CJEU) regarding the interpretation of the InfoSoc Directive has entailed a gradual clarification and development of the harmonisation imposed by the Directive. Particularly important is the decision in C 5/08 Infopaq, where the CJEU for the first time held that the concepts of “work” and the “scope of … protection of a work” are harmonised under the author’s exclusive rights in InfoSoc, and defined the concept of work, which has been further developed in subsequent cases. However, the CJEU has not yet provided explicit instructions on how the infringement assessment in cases of modified copying of works should be carried out.
While existing CJEU case law has led to certain adjustments in national infringement assessments, there are still considerable variations in how these assessments are carried out across EU/EEA countries, and the harmonisation of this assessment under EU law remains somewhat unclear. Against this background, the overall purpose of the thesis was to determine the legal norms and principles for the infringement assessment in EU law, and to reveal the boundaries and requirements on national courts’ assessments. To achieve this, an in-depth analysis of EU law was required, but it was also necessary to systematise and align this with the various national approaches, due to different structures and perspectives on the topic at the EU and national levels. Two key hypotheses were (i) that the EU harmonisation in this area is more extensive than what has been perceived nationally, and (ii) that even though the CJEU has not explicitly established a doctrine for this assessment, significant guidance can be found in the directives and existing CJEU case law.
Both of these hypotheses were confirmed. The thesis demonstrates how the infringement assessment is a fully harmonised area of EU copyright law, and proposes a structured and comprehensive doctrine for this assessment through a systematic analysis of EU law. National approaches in EU/EEA countries are considered in light of the boundaries of EU law, with a particular focus on the Scandinavian countries, Germany, France and the UK.