Authors: P. Bernt Hugenholtz and Martin Kretschmer
Abstract: The existing set of economic rights granted to right holders under EU copyright law – the rights of reproduction, communication to the public and distribution – have become disordered. While the right of reproduction, due to its all-encompassing definition in the Information Society Directive, already covers every imaginable – direct or indirect, temporary or permanent, partial or integral – act of (digital) copying, the right of communication to the public is being extended well beyond its originally intended scope and purpose, to include acts of hyperlinking, facilitating file sharing and possibly even large-scale content aggregation.
While the economic rights protected under copyright are historically patterned on nineteenth and twentieth century modes of exploitation of copyright works, such as theatrical performance, printing and broadcasting, due to the proliferation of digital media technologies in recent decades these media-specific rights have given way to a structure of more abstractly worded, general exclusive rights. As a result, the natural link with economic exploitation has been lost, causing a growing disconnect between the scope of protection and the economic and technological realities of the twenty-first century.
For example, in the digital environment the rights of communication to the public and of reproduction increasingly overlap, requiring providers of digital content services to negotiate multiple permissions from concurrent right holders for acts that – seen from an economic perspective – amount to single acts of usage (e.g., content streaming).
This introductory chapter gives an overview of a collaborative research project (‘Reconstructing Rights’) that normatively examined the core economic rights protected under EU copyright law, with the aim of realigning these rights with economic and technological realities. Five ‘borderline’ cases are being examined to explore the implications of different theoretical models: (1) Digital Resale; (2) Private Copying; (3) Hyperlinking and Embedding; (4) Cable Retransmission; (5) Text and Data Mining.
In conclusion, there is considerable consensus among the proposals for reconstructing economic rights that the current scope of copyright may lead to perverse outcomes, with aspects of over- or underprotection that cannot easily be reconciled with any underlying rationale for copyright protection. For example, text and data mining would not be treated as a copyright relevant act under any of the models under discussion. But for most borderline cases, assessment of effects appears to be conditional. Compared to antitrust (competition law), functionalist theories of copyright law may need to assess long-term dynamic effects, for example on future creation. This is difficult to draft in legislation and for courts to operationalize, as the current wave of uneven and unpredictable jurisprudence of the European Court of Justice perhaps already illustrates.
Citation: Hugenholtz, P. Bernt and Kretschmer, Martin, Reconstructing Rights: Project Synthesis and Recommendations (January 1, 2018). Reconstructing Rights: Project Synthesis and Recommendations’, Chapter 1 (pp. 1-10) in Hugenholtz (ed.) Copyright Reconstructed: Rethinking Copyright’s Economic Rights in a Time of Highly Dynamic Technological and Economic Change, Kluwer Law International. Available at SSRN: https://ssrn.com/abstract=3515193
