ABSTRACT
Τhe history of copyright law itself appears to play a major role in contemporary copyright regulation since many of the concepts on which copyright law is based are rooted in past evolutions. In the process of establishing modern copyright law, the influence of technological changes appears to be an intrinsic element of the regulation of copyright law. Indeed, rather than being external to copyright law, technology forms an integral part of the very fabric of law. A dialectic relationship between copyright law and technology is generally accepted. Technology poses new challenges to copyright law, while copyright law tends to react initially by resisting and subsequently by embracing the new ways of exploiting copyrighted works which are developed by new technologies. Conversely, copyright law shapes technology by influencing the emergence of certain new technologies and their design and architecture. Modern copyright regulation is rooted in the principle of the gradual expansion of copyright protection, to include both new categories of works of mind and new techniques of producing copies and of disseminating works. More specifically, the conceptual evolution of copyright law has often taken the form of a reaction to new technological challenges. As a result, it is centred on the gradual enlargement of protection in its various aspects: the subject matter, the content of rights, copyright duration. The devotion to a proclaimed innate ability and vocation of copyright law to adapt to new situations (alias the principle of technological neutrality) combined with an emphasis on the proprietary nature of copyright law and incentive rhetoric have served as arguments for this development.
Nevertheless, an equivalent progression has not occurred in respect of the antipode of the monopoly in the field of copyright limitations and exceptions. This is more apparent in the digital era where, while the ambit of copyright protection has been constantly affirmed and fostered, the limitations and exceptions to copyright seem to have remained stagnant and imprisoned in the concepts and schemes of the analogue world. The construction of European digital copyright law has gone through various phases. The trigger point for the emergence of harmonised copyright norms was the need to respond to pressing technological challenges (regulation of copyright protection for computer programs ), while two of the most important pieces of EU copyright legislation (the Information Society Directive and the Directive on Copyright in the Digital Single Market) are also responses to technological evolutions. The harmonisation of digital copyright law has gone through various phases – and different paces. Apart from a first period of fervent legislative intervention (1991-2001), for more than a decade the evolution of digital copyright law has been monopolised by the Court of Justice of the European Union’s (CJEU) dynamic construction of a European Union (EU) digital copyright acquis. After years of legislative inactivity, the EU Commission launched the Digital Single Market strategy in December 2015 , whereupon several evolutions took place concurrently, at both the jurisprudential and the legislative level. The modernisation of EU copyright legislation resulted in a series of new legislative instruments, with the most important one being the recently adopted Directive on copyright in the Digital Single Market, which is the second important milestone of horizontal European copyright harmonisation.
The aim of this chapter is to critically analyse origins, the emergence and the evolution of European digital copyright law. It is divided into three parts. The first part (II) is dedicated to the historical roots of European copyright law. In this respect, the origins of certain fundamental copyright law norms and concepts will be analysed in order to assess their impact and their evolution within EU copyright law. However, not all copyright law principles and norms have corresponded well to the societal and technologies realities of the digital revolution. In this context, the second part (III) will discuss the incompatibility of certain fundamental copyright law norms with the digital ecosystem. Finally, the third part (IV) will shed some light on new prospective horizons and directions for the evolution of digital EU copyright law.
Synodinou, Tatiana, EU Copyright Law, an Ancient History, a Contemporary Challenge (November 19, 2023).
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