L’armonizzazione del diritto patrimoniale d’autore

Twenty-five years ago, the first harmonization directive on copyright law was adopted. Many directives followed, supplemented by dozens of decisions of the European Court of Justice. As we are heading towards a new round of interventions from Brussels, the time seems right to assess to what extent the rights granted by copyright law have been harmonized so far and which principles inspire the protection that they provide. Given the importance acquired over the years by the jurisprudence of the Court of Justice, the paper attempts to answer these questions mainly by reviewing critically the decisions of the Court. Within this framework, the paper highlights the absence in EU law of a general clause reserving all uses of the work to the author and analyses its consequences. In this connection, it argues that the catalogue of authors’ exclusive rights has been fully harmonized (including – contrary to the opinion expressed repeatedly by the Court – all forms of communication of the work to the public, no matter whether taking place from a distance or in the same place where the public is), leaving no room for national legislators to provide additional rights. Then, the paper focuses on the conflicts between right-holders and users which have arisen in the last years and that are apparently driven by the intention of the right-holders to extract the maximum potential economic value from their rights. It argues that the Court has elaborated on the idea that copyright protects the interest of right-holders to obtain an «adequate remuneration» and not the «maximum remuneration» or, at the other extreme, a «symbolic remuneration». This seems to be the principle inspiring the solutions adopted by the Court on several issues, going from the definition of «equitable remuneration» to that of «exhaustion» and «communication to the public», particularly in respect of acts of communication that stem from other acts of communication to the public. The paper focuses then on the conflicts which have arisen from the attempt of right-holders to stop altogether certain uses of their works. It highlights that the Court has increasingly relied on fundamental rights to solve a number of crucial issues (including in particular that of linking), which the UE legislator left open without clearly referring their solution to the member States. Lastly, the paper singles out the conflicts arisen between different categories of potential beneficiaries of equitable remuneration rights. It argues that the Court expressed, in a rather creative manner, solutions which resume the idea of protecting the authors also in their contractual relationships with the industry, which was expressed in an early directive and then reaffirmed from time to time in later pieces of legislation. In conclusion, the paper compares its findings with the rules contained in the proposed directive on copyright in the digital single market.