Establishing a European Model for Copyright Infringement

Kristina Stenvik (PhD Candidate, University of Oslo) will present her PhD Project ‘Establishing a European model for Copyright Infringement’.

Abstract

The object of the project is to explore the possibility of developing a European model for the infringement assessment in copyright law. In this context, the ‘infringement assessment’ (NO: ‘inngrepsvurderingen’) refers to the assessment of whether an alleged infringing object is so similar to a protected work that it constitutes copyright infringement. This assessment mainly consists of two parts: (1) defining the protected elements of the work, and (2) the assessment of similarity between the protected work and the alleged infringement. The project will be concerned with the substantive comparison of the protected subject matter and the alleged infringement, rather than the assessment of the infringing acts or the remedies for infringement.

The infringement assessment is one of the core issues in copyright law. It is essential to the effective enforcement of copyright, and to ensure that the purposes of the rules are achieved. In spite of its importance, the infringement assessment is an area of copyright that has received insufficient attention in legal research. Although the topic is covered in general presentations on copyright, there is a lack of in-depth research devoted to this particular and fundamental topic.

The project will be approached from an EU law perspective, but the fragmented harmonisation in this area requires a broader European perspective. The infringement assessment is not subject to full harmonisation under EU law. Although there is EU regulations and case law concerning several aspects of the assessment, there is no developed model or doctrine for the infringement assessment per se. This is not that surprising, given that the European Court of Justice does not actually perform the infringement assessment – this is left to the national courts. Due to the fragmented and disperse nature of EU law in this area, further research is required in order to clearly identify and analyse the EU requirements that applies in the various aspects of the infringement assessment. European national law from selected jurisdictions will be analysed, in order to illustrate how the infringement assessment is performed by national courts, and how EU law is interpreted and applied on a national level.

The analysis will also apply a human rights perspective. Copyright is protected as a fundamental right to property by the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. At the same time, copyright may impose restrictions on other fundamental rights, such as the right to freedom of expression, and a tension between opposing fundamental rights may arise. The balancing of copyright against other fundamental rights and freedoms, and the effect this has on the infringement assessment, will be explored.

Accordingly, the intended objective is to develop a common European model for the infringement assessment, which will internalise the international and EU requirements in the various aspects of the assessment. Such model will also determine the scope of national courts’ discretion when performing the infringement assessment.