Competition law can support the creative work of authors and the constant evolution of new literary and artistic works by facilitating the inclusion of a broad spectrum of existing works in digital content repositories and content aggregation services. The term ‘aggregator’ refers to a party, such as a (dedicated) search engine, which provides an overview of available resources – including literary and artistic works – together with a short indication of contents and a link to the primary source. A ‘repository’, by contrast, holds information resources, such as literary and artistic works, and makes them available from its own server. A library, for example, could be qualified as a content repository in this sense. The focus is thus on digital content services that allow new generations of authors to explore pre-existing creations and find starting points for the formulation of new aesthetic positions and the making of new literary and artistic works.1

Annette Kur’s publications on the coherence of the intellectual property system are an incessant source of inspiration for further research and critical reflection. In one of her landmark essays on overlapping intellectual property rights, she develops a general framework for the assessment of cumulative protection. According to this framework, the combination of different intellectual property rights is not problematic per se. In principle, the cumulation of rights is acceptable as long as the individual protection regimes involved are balanced in the sense that the prerequisites for obtaining protection are appropriately aligned with the contents and limits of exclusive rights.2 From this perspective, it is not the cumulation of rights that causes overprotection problems. By contrast, these problems are symptoms of imbalances within the protection systems involved.3 If the prerequisites for obtaining different types of intellectual property rights remain distinct from each other, and the checks and balances in the different protection regimes are sufficient to prevent excessive protection, the overlap is unlikely to obstruct competition and should be deemed permissible.4 If, however, the requirements for obtaining protection in different regimes converge while the contents and limits of protection remain unchanged, overlapping protection raises the problem of “asymmetric convergence” and requires appropriate countermeasures.5

With the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled (hereinafter “Marrakesh Treaty” or “MT”), in 2013, the international copyright community has shown its willingness to take further steps in the harmonization of limitations and exceptions (“L&Es”) in the field of copyright. However, the Marrakesh Treaty is only the tip of the iceberg. Its preparation and negotiation took place against the background of a much broader debate over the introduction of so-called “ceilings” in international copyright law: binding rules that set a maximum level of permissible protection. While the Marrakesh Treaty had success and became reality, the bigger project of regulating the ceilings of copyright protection in an international instrument is still pending.

In the European Union, the criteria for determining a sign’s eligibility for trademark protection are largely harmonized.1 On one hand, the trademark legislation and office practices in EU member states must keep within the harmonized legal framework set forth in the EU Trade Mark Directive (TMD).2 On the other hand, the European Union Trade Mark Regulation (EUTMR)3 provides for a set of eligibility criteria applying to European Union trademarks (EUTM) with equal effect throughout the EU territory.4 As the rules in the Regulation are in line with those in the Directive, the two legislative instruments constitute a robust body of harmonized norms informing the decision on the registration of a sign as a trademark. The harmonizing effect is enhanced by the fact that national courts must refer questions relating to the application and interpretation of eligibility criteria to the Court of Justice of the European Union (CJEU).5