Abstract
This final chapter discusses some of the implications of using benchmarks of legislative activity in the field of copyright. For that purpose, it summarizes the main findings of the research; it presents the problems of having a normative gap in copyright lawmaking and the challenges inherent to the benchmarking exercise; and it discusses the application of the benchmarks to future copyright legislation.
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Notes
- 1.
Von Bogdandy and Bast (2002), pp. 229–230.
- 2.
However, the Directive also contains a provision—Article 6—that harmonizes the protection of photographs by copyright.
- 3.
Commission Communication on Updating and Simplifying the Community Acquis (2003), p. 12.
- 4.
Commission Communication on Updating and Simplifying the Community Acquis (2003), pp. 12–13. See also the Interinstitutional Agreement on a More Structured Use of the Recasting Technique (2001), point 2: “Recasting shall consist in the adoption of a new legal act which incorporates in a single text both the substantive amendments which it makes to an earlier act and the unchanged provisions of that act. The new legal act replaces and repeals the earlier act.” See also de Witte et al. (2008), pp. 341–342.
- 5.
Commission Communication on a Single Market for Intellectual Property Rights (2011), p. 11.
- 6.
See, e.g., case C-245/00—SENA, case C-192/04—Lagardère; Case C-467/08—Padawan; case C-271/10—VEWA.
- 7.
Case C-245/00—SENA, p. 35.
- 8.
- 9.
- 10.
Suggestions as to how a EU map of exceptions should be designed have already been presented in academic circles—see e.g., van Eechoud et al. (2009), pp. 128–130 and 304–305; Janssens (2009), pp. 335–348. See also Chap. 5 of the European Copyright Code drafted by the Wittem Group (Wittem Group 2010).
- 11.
To the extent that end users are consumers, it has also been pointed out that the “high level of protection” dictated by the Treaties does not equal the highest level of consumer welfare—see Stuyck (2000), p. 392.
- 12.
See, for a discussion on the harmonization of copyright contracts, Dietz (1979), pp. 409–410; Walter and Lewinski (2010), p. 1520. See however Hilty (2004), pp. 764–765 and 772 f. (raising doubts regarding the EU competence to carry out such harmonization); and Von Lewinski (2012), pp. 243 ff. who admits that “many typical problems of authors and performers regarding their protection could be solved by a strong contract law,” but also states that “the problem of copyright contract law seems too hot to be tackled,” concluding that there seems to be no urgent need to fully harmonize copyright contract law. See also Guibault (2009), pp. 525–527, presenting arguments against the harmonization of contracts between creators and industry and holding that “issues of authors’ contract law are best addressed at the national level.”
- 13.
- 14.
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Ramalho, A. (2016). The Normative Gap: Water Under the Bridge. In: The Competence of the European Union in Copyright Lawmaking. Springer, Cham. https://doi.org/10.1007/978-3-319-28206-0_7
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