EU trade policy and copyright law : on competence boundaries and balancing copyright protection with other fundamental rights

The dissertation examines the EU's recent trade policy in the field of copyright law, both in the light of the revised catalogue of EU competences in the EU Treaties and of the Charter of Fundamental Rights of the European Union. It is guided by the following central research question: to what extent is the current EU's trade policy compatible with its obligations to provide copyright protection, to safeguard other fundamental rights and to respect constitutionally confined competences? Part I provides an overview of the balancing mechanisms between the right to copyright protection and other fundamental rights. Four potential conflicts are discussed in detail: those between the right to copyright protection and the obligations to protect (1) the freedom of expression, (2) the right to privacy and data protection, (3) the freedom to establish a business and (4) the fair trial rights and the principles of legality and proportionality of criminal offences and penalties. A balance between those rights and the right to copyright protection within the EU legal order is achieved by several safeguards in the EU copyright directives and an interpretation of these safeguards by the Court of Justice of the European Union in the light of the Charter of Fundamental Rights of the European Union. The main correction mechanisms that restrict an excessive level of copyright protection are the exceptions and limitations in Art. 5 Information Society Directive and the principle of proportionality under Art. 52(1) Charter of Fundamental Rights of the European Union. Nonetheless, a number of red flags for the EU's trade policy have been identified, mainly with respect to the freedom of expression. These for example include a possible extension of the term of copyright and related rights protection beyond 50 years and an extensive legal protection of TPMs which prevents legitimate uses of works on grounds of Art. 5 Information Society Directive. Part II outlines the constitutional set-up of the EU's external competences with regard to copyright law. On the one hand, the dissertation sets out the scope of the common commercial policy competence in Art. 207 TFEU by defining the concept 'commercial aspects of intellectual property'. On the other hand, the dissertation examines the scope of the EU's implied external ERTA-competence in Art. 3(2) TFEU. The doctoral thesis identifies two main areas in which discussions concerning the legal basis can arise: (1) moral rights and (2) criminal enforcement. However, in the end, it is concluded that the EU's express scope of action to regulate copyright internationally provided by Art. 207 TFEU is extensive and has few constraints. Moreover, the EU's implied competence in Art. 3(2) TFEU can serve as a proper back-up. In sum, the EU's external competence in copyright matters is all-encompassing and does not give rise to specific red flags. Part III carries out an evaluation of the copyright provisions of a number of selected trade agreements: the agreements between the EU and South-Korea, Peru, Colombia and Ecuador, Singapore and Canada. It examines whether the delicate balance between rights and interests that is struck internally has been preserved in its trade policy and checks whether the copyright provisions remain within the boundaries of the EU's external competences. In the end, the dissertation concludes that the EU's current trade policy is fully compatible with its obligation to respect constitutionally confined competences and is clearly compatible with its obligation to protect copyright. However, the EU's current trade policy does not sufficiently guarantee access to information for the public and therefore is not entirely compatible with the freedom of expression.status: publishe