International and European Copyright Law and Policy

This module sheds light on how international and EU legislative instruments seek to ensure an effective and uniform recognition, enforcement and exploitation of copyright and related rights, increasingly by harmonizing national laws on copyright. The module will place particular emphasis on technological aspects of copyright and of its enforcement. In particular, therefore, we will consider whether

• copyright law is fit for purpose in the electronic age;
• concepts such as orginality and authorship are properly adapted to accommodate works created by AI;
• the processes of inputting training data and outputting content infringe copyright;
• copyright law can strike a fair balance between rights-holders’ rights and users’ rights; and
• platforms can and should be made liable for copyright infringments by their users.

Depending on the number of moots, lectures are likely to cover:

• history and justifications of copyright; relevant international, EU, and national, copyright frameworks; and important principles; 
• the subsistence of copyright; the requirement of 'originality'; the concept of ‘authorship’; and the ‘idea/expression’ dichotomy; 
• the challenges posed by Artificial Intelligence (AI); including subsistence of copyright; input & output infringements; jurisdiction; defences;  
• copyright’s term of protection, and persisting issues regarding its uniformity throughout the EU; 
• the scope and character of economic and moral rights, including rightsholders' exclusive rights of reproduction, communication to the public, distribution, adaptation, and so on;  
• copyright exceptions and user rights; 
• enforcement, immunities, and remedies, including damages and injunctions, in particular against serial uploaders and downloaders; and
• online copyright enforcement measures and their constitutional limits, in particular Article 17 of the EU ‘Digital Single Market’ Directive (2019/790).

In these lectures, we will discuss, compare, and contrast treaties, legislation, caselaw, policy documents, scholarship, and other materials and online resources, from a wide range of international, EU and national jurisdictions. We will see cases involving (in)famous people, characters, companies, NGOs, political parties, and products, including (some of) 6^th century Irish monks, Johann Christian Bach, bicycles, bitcoin, DABUS, Charles Dickens, dogdy boxes, Victor Hugo, Florence Foster Jenkins, James Joyce, Kraftwerk, Tom Lehrer, Mickey Mouse, Naruto, newspapers, Peter Pan, photographs, Sony, Suske & Wiske, tattoos, Peter Thaler (several times), Oscar Wilde, and Vlaams Belang. And we will look at leading copyright cases from many Courts, considering such questions as: 

• what do headlines and bicyles tell the Court of Justice of the EU about orginality;
• what do a monkey selfie and the man who fell in love with his own AI tell the US courts about authorship?
• what do recordings of Dublin schoolchildren tell the Irish Supreme Court about basic principles of copyright;
• what does a dispute between former romantic partners tell the UK courts about joint-authorship;
• why Poland sued the Council and Parliament in the CJEU; and
• whether incremental or wholesale reform is necessary to meet the ongoing challenges associated with the electronic age?

In advance of the first class, please read Case C-5/08 Infopaq International A/S v Danske Dagblades Forening (ECLI:EU:C:2009:465; Fourth Chamber, ECJ, 16 July 2009).

Learning Outcomes:

On successful completion of this module, students should be able to: 

• demonstrate a thorough understanding of international copyright instruments (especially those of the World Intellectual Property Organization (WIPO)), of the EU copyright acquis, and of how these interact this interacts with national copyright laws;
• analyze the requirements for obtaining copyright protection;
• analyze the scope of copyright protection, of relevant exceptions, and of the enforcement of copyright - at international, EU and national level; 
• demonstrate, in particular, a thorough understanding of the key legislative measures adopted by the EU, and of the key decisions of EU and national courts elaborating on these measures, especially in the context of AI;
• be able to participate in debates about the modernisation and reform of WTO treaties and of the EU acquis, in particular for reasons of innovation and technological neutrality; and
• to continue to develop key legal and practical skills, such as advocacy, critical analysis, research, writing, team-work, organisation, engagement, and communication.

Assessment:

Essay (60%), Moot (30%), and Continuous Assessment (10%).

The Essay (60%) must be: 

• no more than 4,000 words (INCLUDING footnotes), 
• settled on or before the class in week 6 of term, 
• referenced according to the OSCOLA Ireland system of legal citation, and 
• submitted, ONLY via Turnitin on Blackboard, by 4:00pm on the Friday of the week after the end of teaching term. 

The Moot (30%) will take the form of references to the Court of Justice of the European Union (CJEU) pursuant to Article 267 TFEU. Everyone will participate in one moot, as Counsel, Advocate General, or Judge. Topics are likely to include gaming, NFTs, and AI. Cases and parties will be discussed in week 1 and assigned in week 2; preparation sessions and the moots themselves will be held after reading week.

The Continuous Assessment (10%) will consist of marks for ongoing participation in the module. There will be many opportunities for participation; in particular, class will usually begin with recent developments and stories in the news, so you could come to class with interesting stories that have caught your eye.

These assessments will be extensively discussed in class; and considerable detail and supports will be provided on Blackboard..

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