I urval från Stockholms universitets publikationsdatabas

• The Autonomous Legal Concept of Communication to the Public: Interpretation in EU Copyright Law

  2023. Branka Marušić.

  Bok

  The economic right of a copyright holder to communicate to the public has become an increasingly important and complex issue in recent years, this is partially due to changes in the way that content is accessed and consumed online. This innovative book analyses the right of communication to the public, taking account of what legal standing an autonomous legal concept can hold, and how this is impacted by wider harmonisation efforts at an EU level.

  The book explores the scope of the right of communication to the public in a twofold manner: Firstly, it examines the legal standing and effect, from a constitutional perspective of an autonomous legal concept. Secondly, it analyses CJEU case law, grouping cases by type of communication model to demonstrate what kind of authorisation is required to permit widened communication to the public online. Marušić builds on both strands of analysis to propose an operational model of communication for future use, that can aid in identifying and remedying infringements.

  Providing novel analysis on the definition and status of autonomous legal concepts in the EU, and setting this analysis against the context of harmonisation processes, this book will be of great interest to scholars working in both copyright law and EU law more widely.

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• The mere provision of physical facilities for acts of communication to the public revisited - joined cases Blue Air and CFR (C-775/21) and (C-826/21)

  2023. Branka Marušić. European intellectual property review 45 (9), 551-556

  Artikel

  The inclusion of the term "mere provision of physical facilities", as evidenced in the preparatory works for the World Intellectual Property Office Copyright Treaty (WCT), was to shield internet service providers (ISPs) from liability for infringing communication to the public originating with a third party. In the European Union (EU), this term has been introduced as a recital to the InfoSoc Directive, and as such was applied beyond its original purpose. Primarily, it has been used to related rights and secondly, it has been applied in physical realities, assessing liabilities of hotels, rental cars, aircraft, and trains for copyright infringement. The assessment was based on focusing on what is a "physical facility" and what is a "mere provision". The Blue Air and CFR case offers two insights into the "mere provision". The first insight is that a mere provision can be automatic in nature. The second insight is that the automation that enables an act of communication can be for the benefit of travellers independently of their will.

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• Nihil Sub Sole Novum: The CJEU Ruling on the Validity of Article 17 of the DSM Directive

  2022. Branka Marušić. NIR 2022 (3), 281-294

  Artikel

  This article discusses the validity challenge of Article 17 of the DSM Directive by analysing three legal issues put forward in the CJEU’s judgement: the severability of provisions contained in directives, the liability regime contained in Article 17 of the DSM Directive, and whether this Article safeguards the essence of Charter’s fundamental rights.

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• The implementation of Article 15 of the DSM Directive in Croatia: a gold-plating provision

  2022. Branka Marušić. Journal of intellectual property law and practice

  Artikel

  • ‘Gold-plating’ is a term widely used with reference to the implementation of European Union(EU) directives. It refers to a situation in whicha national implementing provision extends thescope of an EU directive.

  • In operational terms, a gold-plating provision provides for additional burdens for businesses andindividuals alike; most importantly, it interfereswith the expected aims that a directive seeks toachieve.

  • Te Croatian implementation of the DSM Directive (Directive 2019/790) has several examples ofgold-plating provisions. In this article, only one isdiscussed: the transposing provision of Article 15.

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• The concept of terroir tested

  2021. Branka Marusic. Journal of Intellectual Property Law & Practice 16 (4-5), 435-441

  Artikel

  This article

  This article looks into wine as a credence product, whose bond of trust is vested in the concept of terroir as a signal to the consumer that the wine she or he is buying originates from a specific location and is made in specific circumstances. The main question of the present analysis is what the legal consequences are when such terroir is shared between two EU Member States, looking into the examples of wines Tokaj and Teran.Arguments advanced in the article are that, on the EU-wide level, there are two effects of the shared terroir. The first effect is a shared PDO; and the second effect is an artificial enlargement of terroir that is not linked to the original geographical position. 

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• Author’s Right to Choose

  2020. Branka Marušić. EU Internet Law in the Digital Era, 137-160

  Kapitel

  This chapter provides an analysis in the material scope of application of the moral right of divulgation and the economic right of communication to the public in the EU’s digital single market. The aim is to bring forward arguments why the application of both rights should only be addressed through the protection afforded by the economic right. The rationale behind this is that the right of divulgation, as a moral right of the author, and the right of communication to the public, as an economic right of the author, both share the same trigger point for their application. This trigger point consists of the author’s choice in sharing her or his work with the public, in which the author of the work also chooses the manner, shape and place where this sharing will occur.

  Unlike the economic right of communication to the public, which has been harmonised in the EU, the right of divulgation, as a moral right is deeply rooted in the national legislative and judicial interpretation of the Member States that recognise this moral right of the authors. In line with this and for this chapter, analysis of the material scope of the application of the right of divulgation is evaluated through the monistic and dualistic approach to the regulation of copyright, and the jurisdictions that are analysed are primarily France and Germany.

  Against this background, the analysis in the chapter provides for overlapping interpretational criteria of both rights that encompass an act of sharing, the definition of what the public is, and what the modes of dissemination of work are.

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• Derogating Regulative and Enforcement Powers in Copyright Protection in the Digital Market: A Trojan Horse for the EU?

  2017. Branka Marušić. Croatian Yearbook of European Law & Policy 13, 169-190

  Artikel

  The proposal for a Directive on Copyright in the Digital Market contains a proposal to harmonise protection of copyright in the digital market and to close the so-called 'value gap'. The value gap is a term that, in the realm of online copyright dissemination, signifies a situation where the right holder (for example, the author of a song) is not adequately remunerated for his or her work. This situation usually occurs when his or her song is made available on an online platform, such as YouTube, and he or she is not paid for the use and enjoyment of the work. The current market mechanism to tackle this problem is done via licensing schemes.

  This paper will analyse the possible Trojan horse that is hidden in this proposal in order to ask whether, when it comes to online regulation and enforcement of copyright, the deployment of article 114 TFEU is the correct legal basis for the EU to enhance accountability of internet service providers in the regulation and enforcement of copyright.

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