The understanding of the cultural dimension of copyright
The broadest copyright policy measure that the EU has enacted so far, the InfoSoc Directive, makes only a short reference to the obligation for the Union to take cultural aspects into account in its action (as required under Article 167(4) of the Treaty on the Functioning of the European Union) (Recital 12). Further, Recital 12 of the Directive merely states that '[a]dequate protection of copyright works [... ] is also of great importance from a cultural standpoint'. The laconic tone of this reference shows that EU lawmakers believed that a high level of protection of copyright, after the adaptation of its main elements to the digital environment, could have been per se an intrinsic guarantee of support to diversified cultural production in the European landscape. As stressed in the literature, the positions expressed by the European Commission (Commission) in its Green paper (European Commission, 1995) and by the European Parliament in the preparatory works of the Directive acknowledged that, if creativity had not been adequately protected and economically rewarded, authors would have been reluctant to create or digitise their works, with a negative impact on the diversity of content made available through digital networks (Psychogiopoulou, 2008: 184).
Even though the cultural dimension of copyright was not completely neglected by the EU, the InfoSoc Directive did not take Europe's cultural diversity into specific consideration. Rather, it sought in the abstract to create a common level playing field for all actors in the markets for cultural and entertainment works, irrespective of the origin, size, popularity and the turnover of the cultural businesses and content that copyright protects. However, considering the high level of concentration of market power in the creative industries, the main beneficiaries of the harmonised rules were media conglomerates and major content producers who could concretely engage in cross-border trade of their internationally appealing productions. A legislative framework, such as that of the EU, where copyright holders enjoy identical or similar prerogatives in each member state while being free to continue to exploit their works on a strictly country-by-country basis is beneficial to large and multinational content traders rather than small content producers or individual creators (Macmillan, 2013: 386). In light of the strong focus of the 2001 Directive on the definition of uniform exclusive rights in the digital environment and the limited harmonisation of copyright exceptions and limitations, the rules inevitably ended up benefiting mostly content producers whose cultural creations and repertoires had a strong commercial appeal and were effectively diffused and appreciated on a cross-border or pan-European basis. As things stand, the support provided by EU copyright rules to cultural creation and thus to the production of diverse cultural content relies on the broad and lengthy exclusive rights that are recognised. Nevertheless, these are concentrated, for the most part, in the hands of the cultural industries (i.e. book and music publishers, record and film producers, broadcasters, etc.) and the largest collecting societies. This means that, except for specific cases that will be highlighted in the next section, EU copyright law does not ensure that authors and artists are placed in a position to take advantage of the commercial success, reputation and diffusion of their creative work, and to be fairly remunerated.