This essay provides an introduction to and an analysis of the harmonisation of EU copyright law from the specific perspective of the digital world. The analysis starts from the assumption that digital technology has recently changed the patterns of creation and dissemination of creative works to such an extent that legislators, including the European Union law-makers, have been forced to rethink copyright protection with a view to preserve its main characteristics and rationale. In the same way as the 1996 WIPO Copyright Treaty at the international level and the 1998 Digital Millennium Copyright Act in the U.S., the European Directive 2001/29 redefined the copyright scope by drawing on the broad notion of reproduction set out by EC Directive 91/250 on the copyright protection of computer programmes. Given the technical, software-related nature of the reproduction right created by the Directive, EU general copyright law ended up by expanding its reach to the mere use of protected works. In doing so, it provided for the legal protection of certain technological measures/devices (which now include Digital Rights Management technology) aiming to ultimately restrict end-users’ legitimate access and use purposes that substantive copyright law would allow. The essay shows that the enactment of unlimited “anti-circumvention” prohibitions created an “access right” that might result in the perfect lock-up of creative works in digital formats. It is emphasized that the interplay between individual (“click-wrapped”) licenses and new technologies of control and management might greatly reduce the relevance of the public law of copyright and systematically enable the contractual override of statutory exceptions which restrict the breadth of property rights on protected works. It is concluded that no single policy was developed in the EU by the adoption of the 2001 Copyright Directive, which has rather enhanced the degree of fragmentation of Member States’ laws regarding suitable copyright exceptions and legal tools ensuring their effective enforcement. The essay is published in the version awarded in December 2004 with the “Leonello Leonelli” Prize by the Italian Law Society (Rome) and the law firm Leonelli Duranti e Associati (Perugia). A short addition at the end of the essay provides an update regarding newly emerged issues that are not discussed in the original version.
Available at: http://works.bepress.com/mazziotti/2/