Directive 2019/790/EU (Directive on Copyright and Related Rights in the Digital Single Market)

Copyright’s place within European Union (EU) law and within the wider e-Commerce environment is undoubtedly significant. Nonetheless, copyright law is less well integrated into the EU legal order than some other key areas of commercial and e-Commerce law, such as competition law. It is notewor- thy that copyright went unmentioned in the foundational Treaty of Rome, which was instead focused on eliminating barriers to competition. Even today EU intellectual property law is harmonised unevenly – e.g. copyright law is not as fully integrated into EU law as is trade mark law. Rather than full harmonisation of EU copyright law there exists a scattered list of Directives and Regulations relevant to copyright. The most prominent include the Information Society (InfoSoc) Directive from 2001 (covered in Chapter 3) and the Copyright in the Digital Single Market (CDSM) Directive, brought into law in 2019, which forms the subject of this chapter.This chapter proceeds as follows: first I explore the origins of the CDSM Directive, including its legislative debate.14 Despite substantial opposition, I note that the CDSM Directive did eventually, in 2019, become part of the body of EU copyright and e-Commerce legislation, standing today as the key piece in the emerging puzzle of EU copyright law. I go on to explain that the CDSM Directive does not override all the existing copyright aquis, and a number of aspects of the Infosoc Directive and the earlier e-Commerce Directive (ECD) remain relevant within EU copyright law. In this regard, I describe the legal status quo ex ante, including the crucial notion of ‘com- munication to the public’ under the Infosoc Directive (Article 3) and the ‘safe harbour’ provision under the ECD (Art 14). I then relate this to the CDSM Directive, focusing on its two most crucial measures (Arts 15 and 17) and the changes these new provisions make to the EU copyright landscape. I reflect on what the impact of these key provisions could be in the near future, including their compatibility (or not) with the EU Charter of Fundamental Rights.15 I conclude by outlining that there remains conceptual openness – a normative void – in the copyright notions contained within the scope of the 2019 CDSM Directive. As such, future rulings by the CJEU will be crucial to the new Directive’s application in practice