This paper examines the impact of Directive 2001/29/EC in light of two major developments since 2011. The first is the extensive growth of EU jurisprudence on Directive 2001/29/EC and, particularly, increased judicial harmonization of copyright. As a result of this shift, clarity on some – but not all – aspects of Directive 2001/29/EC has emerged and the flexibility of Article 5 exceptions and limitations has been somewhat constrained. While UK courts have sought to apply the interpretations of the European Court of Justice, on occasions (such as with the originality requirement) they have still been prone to relying on domestic concepts and principles. The second and more troublesome development is the regrettable decision of the United Kingdom to withdraw from the European Union. The negotiations for withdrawal are on-going and so it is difficult to predict the consequences for UK copyright law. Even so, the Directive 2001/29/EC and its interpretations by the European Court of Justice are likely to remain influential in future to UK copyright law. As a result of these two major developments, the picture of how Directive 2001/29/EC impacts UK copyright law has become more complex. This paper will seek to tease out these complexities in discussion of the following topics: i) originality; ii) exclusive rights; iii) exceptions; and iv) the UK’s post-Brexit future.
Aplin, Tanya, The Impact of the Information Society Directive on UK Copyright Law (July 1, 2018). Forthcoming, Brigitte Lindner and Ted Shapiro (eds), Copyright in the Information Society: A Guide to National Implementation of the EU Directive 2nd edition (Edward Elgar 2018).