Most, but not all types of act restricted by copyright or related rights in works or other matter are harmonised at an EU level. Thus, along with the restricted act of communication to and making available to the public, the restricted acts of reproduction, distribution and rental are also expressly harmonised at an EU level. Although such other restricted acts have occasioned considerably less case law in the Court of Justice of the EU than the restricted act of communication and making it available to the public, their case law provides an insight into many live issues of EU copyright law, such as the degree of originality required for copyright to subsist and the scope of the doctrine of exhaustion of rights. In some areas, such as originality, the Court has been prepared to extend the ambit of the EU harmonising legislation into areas which the legislature did not purport to harmonise; but there have been others where it has not been prepared so to do, thereby flagging up lacunae in the harmonisation of copyright at an EU level. One already established such lacuna is that of certain restricted acts as mandated, as to copyright, by the Berne Convention. The Court has recently, in a case which concerns aspects of the restricted acts of both reproduction and distribution, and as to the latter the scope of the doctrine of exhaustion of rights, declined to seize the opportunity offered to it to clarify the status under EU law of another restricted act, that of adaptation, as mandated by Article 12 of the Berne Convention.
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Originally published by The Journal of Intellectual Property Rights, Volume 20, March 2015
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