The cited EU copyright directive (NOT: law) is referring to works fallen already in the public domain. Short information on the EU "publication right":
http://en.wikipedia.org/wiki/Publication_right
German law knows an addional right for critical editions with a 25 year term after publication. This is referring to the consolidated text and not-copyrighted parts like critical apparatus.
According to the common law "sweat of the brow" theory it seems impossible to find a modern scholarly edition which is not copyrighted (beside of the mentioned protection by the EU "publication right" or the German protection for critical editions) .
I do not accept the theory that it would be an incentive for making editions if other scholars are not allowed to make fair use of an other edition. As an OPEN ACCESS advocate I have formulated my request for OPEN ACCESS to scholarly editions in German in the Vienna conference papers "Vom Nutzen des Edierens". Available online at: http://archiv.twoday.net/stories/230198/
Klaus Graf