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Saturday, 28 May 2016

Book Review: The Competence of the European Union in Copyright Lawmaking

Given, um, upcoming political events, analysis of the lines between member states and EU institutions couldn't be better timed. In "The Competence of the European Union in Copyright Lawmaking", Ana Ramalho presents a comprehensive analysis of EU competencies related to copyright.Using EU Court of Justice case law and EU treaties to identify benchmarks, she develops normative perspectives on EU copyright policy.

It's always interesting to read analysis of EU competencies.  As per the UK Government's 2013 consultation, a UK-centric definition of EU competencies is: "everything deriving from EU law that affects what happens in the UK ... all the areas where the Treaties give the EU competence to act, including the provisions giving the EU institutions the power to legislate, to adopt non-legislative acts, or to take any other sort of action ... areas where the Treaties apply directly to the Member States, without needing any further action by the EU institutions." Basically, where the EU can tell member states what to do.

Given member states' diverse approaches to copyright, Ramalho addresses some core tensions in EU copyright law. Like most IP debates, there is friction between a natural rights justification, where IP is largely a recognition of existing rights, and a utilitarian/social welfare approach, which is where innovation arguments come into play.  Noting the debates amongst scholars, she suggests that a combination of the two approaches better encapsulates the rationale for IP. [Merpel is pleased to hear there is a middle ground.]

The author details a thrust towards harmonisation in recent EU copyright policy, but as a consequence of a general harmonisation drive of the internal market, rather than a copyright-specific approach. Looking back to the 1970s, copyright initially fell under a cultural remit, instead of the market focus of today.  Ramalho also investigates how copyright policy should connect to the EU objectives of 1) creation of an internal market, 2) promotion of the EU's values including respect for fundamental rights and the rule of law, and 3) respect of cultural diversity (she notes both cultural and diversity are hard to define.)

Ramalho explores the principles that support the competencies system.  These principles are key to member states' negotiations with the EU.  They are (paraphrased):
1. Conferral - the EU is bound by the objectives and the powers bestowed on it by member states
2. Subsidiarity - the EU should only do things that need to be done at an EU level, rather than by member states
3. Proportionality - a three factor test, but basically asks whether EU competency/action is suitable, necessary and is proportional (is burden > help?)
Making law
by Azzza

The author then proceeds through an analysis of EU primary law and CJEU case law, and develops a series of benchmarks for legislative activity. She makes a number of normative statements to 'field-test' these benchmarks. The former civil servant in me bristled at this point, expecting specific policy measures, as is the penchant of economists.  However, Ramalho instead further unpacks some of the practical issues in EU policymaking. For example, in examining the benchmark of "Protection of Creators: Guarantee of Income and Recognition to Creators," the author looks at the protectionist trend in recent copyright policy which, "takes place regardless of who the owner of the rights actually is." I would have liked to seen some more detail on how a "guarantee of income" would work, but that likely merits a future book in itself.

This book is a must for copyright policy makers and researchers. It might become a must for all of us, depending what holds next for the UK.

Bibliographic information: Ramalho, Ana. 2016. The Competence of the European Union in Copyright Lawmaking: A Normative Perspective of EU Powers for Copyright Harmonization. Cham: Springer International Publishing. Hardcover: £74.50 e-book: £58.99 Rupture factor: Medium-Low, 250 pages.

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