The EU adopted Directive 2019/790 on copyright in the Digital Single Market in 2019. The implementation of this Directive by Member States has become one of the most significant advances concerning EU copyright in recent times and continues to be central to discussions on the subject, with the provisions continuing to be debated, transposed, and disputed. Likewise, there is widespread anticipation of the practical implications of the Directive being fully transposed across the EU. Professor Eleonora Rosati is the leading EU copyright expert and her book, Copyright in the Digital Single Market: Article-by-Article Commentary to the Provisions of Directive 2019/790, provides a detailed and exhaustive vade mecum for those engaging with these provisions.
The book begins by setting out the origin and objectives of the DSM Directive, contextualising it within the broader scope of EU copyright law and its reform. From the evolution of discussions about the harmonisation of copyright in the late 1970s, and the concerns of the then Commission of the European Communities (now, the Commission) in its 1988 Green Paper on Copyright and the Challenge of Technology – Copyright Issues Requiring Immediate Action in light of the internal market-building objective, we learn—or are reminded of—how these initiatives developed EU and international copyright, for example the Information Society Directive 2001/29. After something of a hiatus, the harmonisation agenda gained momentum again in 2015 in the form of the Digital Single Market Strategy. It was against this background that the proposal for a Directive on copyright in the Digital Single Market was made in 2016.
Rosati highlights how the Directive turned out to be ‘significantly more detailed and complex than the proposal’ but that it continued to reflect the harmonisation agenda, as ‘it is premised on an internal market-building rationale’. The author goes on to explain that this aims to: guarantee a high level of protection for rightsholders; streamline rights clearance; and create a level playing field for the exploitation of works and other protected subject matter. The objectives are linked to the establishment and functioning of the EU internal market, as well as to both an incentive-based view of copyright and the Union's objective to respect and promote culture and cultural diversity. In addition, it also takes into account the need to: remedy interpretative uncertainties caused by technological advancement and the emergence of new business models and actors, as well as ensuring that business is not unduly hampered by such uncertainties; and guarantee a well-functioning and fair marketplace for goods incorporating, and services based on, copyright works and other protected subject matter.
As the title indicates, the book examines each of the Articles of the Directive in turn, providing systematic analysis of their history, objectives and content, as well as their relationship to other provisions of the Directive and the pre-existing acquis where relevant. In doing so, Rosati provides a deeply thoughtful and thoroughly researched account of the Directive, both as a whole and of its specific contents. These sections are encyclopaedic in their coverage. The historical context and rationale provide a narrative that allows the text to be readable whilst also providing detail, concerning, for example, the form of analysis and definitions, and is thus of interest to both the scholar and practitioner. For example, in discussing the meaning of ‘best efforts’ in Article 17, Rosati states:
It should be also noted that the phrase ‘best efforts’ has not seemingly been translated accurately in the various language versions of the Directive, with some suggesting more of a qualitative dimension of the required efforts (the type of efforts that could be expected from the specific OCSSP [online content service provider] at hand) and others favouring an approach based on the objective dimension of the efforts made (the type of efforts that could be expected from OCSSPs like the one at hand). In reality, it appears that the notion of ‘best efforts’ entails both a subjective and an objective appreciation, subject to an overarching proportionality assessment, the fundamental freedom to conduct a business, and the obligation under Article 17(9).
This book sets out to provide an article-by-article commentary on all the provisions of the Directive, and this is accomplished. Since the book was published before the Directive was transposed it does not deal with more recent developments concerning the implementation of the Directive. That said, it provides detailed and comprehensive coverage for those engaging with the provisions of the DSM Directive, and it will be of interest to both academics and practitioners, including legislators and courts across the EU with an interest in EU copyright harmonisation, reform and the DSM Directive.
