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Sunday, 28 December 2014

European Copyright Society tells Oettinger that EU should go for full harmonisation of copyright

A little bored by all these holidays,
at last Douglas McCarthy's Pushkina
had some fun reading the ECS letter
Via Katfriend Prof Bernt Hugenholtz (University of Amsterdam, IViR) comes the festive news that the ever active European Copyright Society (ECS) - launched in 2012 and composed of leading European copyright scholars with "the aim of creating a platform for independent and critical scholarly thinking on European copyright law" - sent Commissioner for Digital Economy and Society, Günther Oettinger, a letter shortly before the holidays. 

The subject-line? "Unification of copyright law". 

Fans of the recent  Public Consultation on the Review of EU Copyright Rules [herehere, herewill surely remember that the ECS took part in this stakeholder exercise, holding the view that the EU should go for full harmonisation of Member States' copyright laws [incidentally and albeit much more modestly, this is also the position that this Kat advanced, first, in her PhD dissertation and, then, in the book that she derived from her doctoral work].

In its letter to Mr Oettinger, the ECS re-affirmed this view, underscoring "the need for a more forward looking and further reaching reform of copyright in the EU – in the form of actual Union-wide unification (not further harmonization) of copyright. The Members of the European Copyright Society are convinced that the time is now ripe to start work on a European Copyright Law that would apply directly and uniformly across the Union."

And a Happy New Copyright Year as well?
Why is this the case? 

Because "[d]espite almost 25 years of harmonization of copyright in the EU, copyright law in Europe has essentially remained national law. Each Member State still has its own law on copyright and neighbouring (related) rights that applies strictly within its own territory. This territoriality has led to fragmentation of markets along national borderlines, critically impeding the establishment of a Digital Single Market for creative content, and undermining the Union’s international competitiveness."

Initiatives like Licences for Europe [here] and the recent Collective Rights Management Directive [here] (yet the latter only with regard to online uses of music) have focused on multi-territorial or pan-European licensing. Although initiatives of this kind are not a bad idea per se, they are are said to only provide a limited solution to the issues raised by territoriality/fragmentation of copyright laws.

The legal basis for full harmonisation of copyright at the EU level may be Article 118(1) of the Treaty on the Functioning of the European Union, which has been there since the 2009 Lisbon Reform Treaty.

In the view of ECS, a European Copyright Law would:
  1. establish a truly unified legal framework, replacing the multitude of – often opaque and sometimes conflicting – national rules that presently exists;
  2. have instant Union-wide effect, thereby creating a single market for copyrights and related rights, both online and offline;
  3. enhance legal security and transparency, for right owners and users alike, and greatly reduce transaction and enforcement costs, including those resulting from the still pending issues of jurisdiction and applicable law to copyright infringements online [with regard to the latter, this Kat recently had a little contest with her Southampton students which consisted of analysing the decision of Birss J in Omnibill, here. The best entry was by Nedim Malovic and will be published soon in the Journal of Intellectual Property Law & Practice];
  4. enable the EU legislature to reestablish itself as a global leader in copyright norm setting.
Shortly before the December break, Mr Oettinger announced that his first initiative as a Commissioner will be copyright reform [here] ... We'll see if he agrees with the views expressed by the European Copyright Society.

4 comments:

Anonymous said...

I've heard that the EU copyright reform has come down only to introduce the solutions proposed by the creative industry, despite the fact that they were carried out extensive social Konsult that conversation was many important kwesi słaszłem this and so that the sentence (the recipients of culture and non-governmental organizations do not will be taken into account)

internauta said...

The European Commission has lobbyists!
The only reasonable solution according to the European Commission on the European Commission to place greater emphasis on the protection of intellectual property rights by promoting solutions that have fallen out of ACTA or share IP addresses of potential pirates persons who are not entitled to it! Public consultations carried out by the European Commission on the reform of copyright were conducted in my opinion just to make appearances, that the EU is a democratic institution, and indeed the European Commission took into account only the opinion of the creative sector

Andy J said...

I remain rather less convinced than the ECS about this. To say that national laws currently make up the legal landscape in a harmonised regime is a statement of the blindingly obvious. The ECS's letter gives no examples of where the current system is acting adversely on the Digital Market so it's hard to counter that argument. It is worth stating that when it comes to exploiting the internal market, many forms of media subject to copyright are much more constrained by language, than they are by any legal differences.
But if we were to move to a unified copyright law, it seems likely that the droit d'auteur ethos, given that it underpins the existing law in quite a few member states, will form an important underpinning of Union law, meaning that European copyright would move even further away from compatibility and interoperability with US copyright law, not the mention other countries such as Canada, Australia, India and New Zealand whose law is based to a great extent on the British tradition.
And surely the CJEU is already having a unifying effect through its decisions, which seem to come thick and fast. 'Originality' has already been ousted by the 'personality of the author'. And we now have a good idea how to measure 'substantial' thanks to Infopaq.
Given the defects in the current Directives (which are the reason for so many of the cases the CJEU has to decide) and the number of areas where there appears to be either incoherent or non-existent harmonised policy (artists resale rights, exhaustion of rights, private copying levies etc) I think that evolution within the harmonisation arena as much to be preferred to the revolutionary approach of unification.
One has only to look at patents and implementation of the EPC/UPC to see how things might develop if a doctrinaire attitude prevails.

internauta said...

Sorry for my Angielski.
In an Earlier the entry is a little inaccurate Certain thing is they are easy to guess That an entry is critical of the European Commission. Now pass the previous misunderstandings. From my previous the entry shows as I Ke Alleged That lobbying is an institution but does not think so. I believe, however, that the EC undergoes lobbyists.
Another inaccuracy Is That it came out as I backed solutions ACTA and the EC argued That Should Be used because it is the only reasonable solution. I never thought. The best way to pave the way for reform of copyright law are the public consultation on even though I think it Should Be more transparent and for a fairly sharply criticized the European Commission in the previous entry are the Commission is also commended for the same idea, which was in my opinion, but in my apt some assessment of the consultation is not enough. Another thing that I want to raise Is That the European Commission Should Guided by the Charter of Fundamental Rights of Man When creating copyright but that's a topic for a longer discussion

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