SECTION III
The scope of exclusive rights and liability for the doing of unauthorized acts
7
The right of reproduction
Caterina Sganga
Abstract
The right of reproduction – commonly considered the core of copyright – has always been the first entitlement to face the challenges raised by technological developments. The digitization of protected works and the advent of the internet have drastically broadened the range of conducts involving acts of copying, triggering heated policy discussions on the optimal extension of exclusivity. Against the silence of international sources, the EU legislator has harmonized this right in the Software, Database and InfoSoc Directives. However, the broad definitions and unclear exceptions provided therein have created greater uncertainties. National courts have struggled with the classification of a wide range of new technological processes and with the treatment of partial and temporary reproductions, while scholars have raised concerns on the effect that an overstretching of the right would have had on the functioning of the internet, the development of digital markets, and users’ enjoyment of their digital freedoms. The chapter illustrates the path leading to the definition of the right of reproduction by international and EU sources, delineates the uncertainties regarding its scope, and comments on the evolution of the notion in the case law of the Court of Justice of the European Union (CJEU), highlighting positive contributions, pitfalls and gaps yet to be filled.
Contents
Abstract
Introduction
The right of reproduction in legislative texts
International background and preparatory works
The scope of the right of reproduction in EU directives
Exceptions and limitations
CJEU case law
General principles and definitions
Temporary reproduction and related exception(s)
Partial reproduction
Format shifting: reproduction or adaptation?
Private copying and fair remuneration
Other exceptions to the right of reproduction (Article 5(2) and (3) InfoSoc)
Conclusions
References
Case law
Introduction
The right of reproduction was one of the first exclusive rights introduced by national copyright laws.1 The entitlement is commonly defined as the “core” of copyright2 and at the heart of its conceptualization.3
From the early-days printing privileges to the classic right to prevent material duplications, reproduction has always been the first entitlement to face the challenges raised by technological developments and the broadening of the subject matter of copyright. With an acceleration in the 20th century, new devices have made copying cheaper, faster and available for any user. Format shifting has become common. Ultimately, the digitization of protected works and the internet have drastically broadened the range of conducts involving reproductions, and particularly temporary ones.4 Against this background, adopting a purely technical definition of the boundaries of the right could have resulted in the construction of an overstretched right, and in the privatization of almost every conduct involving digital works, regardless of its impact on rightholders’ economic interests. Not unexpectedly, the policy debate regarding the ‘right’ approach to digital uses became soon heated, triggering a panoply of different reactions at an international, EU, and national level alike.
Despite the relevance of this right in the digital environment, the first international conventions regulating digital copyright and related rights – the 1996 WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT)5 – did not intervene on it, referring back to the relatively “old” definition provided by the Berne Convention.6 The Agreed Statement to Article 1(4) WCT justified the omission by arguing that the international acquis was already equipped with provisions that could be adapted to the features of digital works.7 Yet, too many questions were left unsolved, and with them the obvious risk of fragmentation of national responses to new technological developments.
On the contrary, the EU legislator perceived since the early days the need to harmonize exclusive rights and create a common vocabulary that could flatten the divergences in Member States’ approaches. Despite the common adhesion of EU countries to the Berne Convention, in fact, national statutes differed as to the approach to the rights – from very broad categories to very detailed lists8 – the terminology used, and the conducts covered by each entitlement.9 From the Software Directive I (1991)10 on, the EU harmonization has created a broad acquis communautaire characterized by a piecemeal approach, drawing upon international and national definitions, while the Court of Justice of the European Union (CJEU) has progressively construed autonomous concepts of EU (copyright) law, narrowing ever more the space left to national legislators.
The InfoSoc Directive11 attempted to conclude the path started by the Software and Database Directives and to provide a comprehensive, clear and updated definition of the right of reproduction.12 However, its text was already born aged,13 and destined to create interpretative challenges. The broad definition provided by Article 2 InfoSoc and the uncertain scope of the exception of transient reproduction (Article 5(1) InfoSoc) triggered great uncertainties as to the extent of rightholders’ control over a wide range of digital uses, transmissions and processes, factually increasing the number of restricted acts.14 Scholars and stakeholders soon showcased their fears that an overstretched reproduction right could disproportionately impact on the functioning of the internet, have chilling effects on the development of new digital distribution models, and improperly cover acts of consumption and reception of information.15 National courts have struggled with the classification of acts such as caching, linking, streaming, search engine indexing and thumbnailing, with the overlap of rights of reproduction and communication to the public, and with the definition of the borders of partial reproduction vis-à-vis activities such as music sampling.16 Rightholders and collecting societies have claimed multiple remunerations for single transmissions and from multiple actors in th...