European Union's competence in adopting legal acts on copyright protection

• Author: Enejda Shyti (Osmanaj)
• Pages: 46-54

Vo

l. 4 N

o

.

3

N

ovem

b

er

,

2018

A

cademic Journal o

f

Business,

A

dministration, Law and Social Science

s

II

PCCL Publishin

g

, Graz-

A

ustri

a

I

SSN 2410-391

8

A

cces online at www.ii

p

ccl.or

g

46

European Union’s competence in a

d

opting

l

ega

l

acts on cop

y

rig

h

t protection

PhD (C.) Ene

j

da Shyti (Osmana

j)

Abs

tr

ac

t

The

E

uropean

U

nion (

EU

) needs to have the necessary legislative competence in order to

enact legal acts in any given area.

1

Whenever the Treaties empower it to act, the

EU

will

b

e granted legislative competence in order to achieve the objectives set therei

n



2

.

I

t f

o

ll

o

ws

that any legis lative act must be based on a Treaty provision that justif‌i es an action by the

E

uropean legislator. So to say, legislative acts must have a legal basis. Copyright was faced

with the provisions of the

EE

C Treaty (1957) at a relatively late stage and it is f‌i rmly based

on the principle of territoriality. This means that national rules govern copyrighted subject

ma er within the territory of a given Member State. That’s why

EU

had the necessity to adopt

legislative acts to harmonize the copyright laws of member states. This paper will analyze the

legislative competence of

EU

in approving legal acts on copyright area and how the TF

EU

is

legally interpreted to allow it.

K

e

y

words:

E

uropean

U

nion, Directive, Regulation, Competence, Copyright, Treaty

.

I

ntr

oduc

t

io

n

Co

py

right was an issue that came later on the

f

ocus o

f

E

uro

p

ean

U

nion. The main

reason was

p

robabl

y

due to language barriers and Member States’ di



ering cultural

t

raditions. Trans-border ex

p

loitation o

f

co

py

righted works was

f

or a long time not

o

f

major economic im

p

ortanc

e



3

. This, however, changed with the advent o

f

some

innovations such as com

p

uter

p

rograms and databases, that in general can be

used irres

p

ective o

f

di



erences in language and culture on one hand, and o

f

new

communication tec

h

no

l

o

g

ies suc

h

as sate

ll

ite, ca

bl

e an

d

internet on t

h

e ot

h

er.

A

t t

h

e

b

eginning the

EU

Treaties did not contain an

y

re

f

erence to com

p

etence in the

f‌i

eld o

f

co

py

right. The Treat

y

o

f

Lisbon, which entered into

f

orce on 01.12.2009, amended the

p

revious

E

C and

EU

Treaties and included a new article that allowed the

EU

to create

E

uro

p

ean inte

ll

ectua

l

p

ro

p

ert

y

rig

h

ts

4

, t

h

at is, inte

ll

ectua

l

p

ro

p

ert

y

tit

l

es va

l

i

d

in a

ll



1

Ramalho

A

., (2016) The com

p

etence of the

E

uro

p

ean

U

nion in Co

py

right Lawmaking,

A

nor-

mative

p

ers

p

ective of

EU

p

owers for co

py

right harmonization, S

p

ringer

I

nternational Publishing

S

witzerland,

pp

. 9-10;



2

This is the so-called

p

rinci

p

le of conferral, enshrined in

A

rticle 5

p

aragra

p

h 2 TF

EU

: “

U

nder the

p

rinci

p

le of conferral, the

U

nion shall act onl

y

within the limits of the com

p

etences conferred u

p

on

i

t b

y

the Member States in the Treaties to a ain the objectives set out therein. Com

p

etences not con

-

ferred u

p

on the

U

nion in the Treaties remain with the Member States.”



3

A

nne e Kur, Thomas Dreier,

E

uro

p

ean

I

ntellectual Pro

p

ert

y

Law (2013),

E

dward

E

lgar Publish-

i

ng Limite

d

,

p

. 243;



4

A

rticle 118 of the Treat

y

on the Functioning of the

E

uro

p

ean

U

nion (“TF

EU

”) foresees: “

I

n the

context of the establishment and functioning of the internal market, the

E

uro

p

ean Parliament and

t

he Council, acting in accordance with the ordinar

y

legislative

p

rocedure, shall establish measures

for the creation of

E

uro

p

ean intellectual

p

ro

p

ert

y

rights to

p

rovide uniform

p

rotection of intel-

lectual

p

ro

p

ert

y

rights throughout the

U

nion and for the se ing u

p

of centralised

U

nion-wide au-