Book review: Propertizing European Copyright – History, Challenges and Opportunities

In ‘Propertizing European Copyright’, Caterina Sganga considers a question well-known to intellectual property lawyers: is copyright a property right? Whilst the question is not novel, Sganga’s answer should pique your interest. Briefly put, the author argues that there is nothing to fear, but much to gain, by framing copyright squarely within the logic of property. Doing so would replace the current patchwork of copyright rationales and justifications currently existing at the European level with property theory as the theoretical foundation for its existence and enforcement.

The author identifies the current foundational patchwork of copyright as one of the main causes crippling its implementation, not least in the place of copyright exceptions, as expressed in the jurisprudence of the Court of Justice of the European Union. Where many would see the assertion of copyright as a property right as the kiss of death for users’ interests and the public domain, Sganga demonstrates that giving copyright a single legal identity, such as property, may be the only way to obtain a balanced framework capable of protecting both authors’ and users’ interests.

For instance, a property theory of copyright would allow national and EU courts to introduce into copyright the notion of ‘abandonment’ – allowing unexploited copyright works to enter the public domain and be freely reused by others (p. 241-244). The author argues that the non-use of protected content already triggers similar consequences under trade mark and patent law – so why not copyright? The author rightly points out that copyright authors are less likely to be market competitors compared with the vast majority of patent-holders and trade mark owners. As such, a large number of copyright holders would be unlikely to receive legal assistance in the management of their intellectual property rights, making this group of right-holders particularly vulnerable to abandonment for non-use. 

More property theory for copyright?
...and now, an abandonment theory?

This may create an undesired imbalance in protection between copyrights owned by corporations and those owned by individuals. For this reason, the theory of abandonment could not be brought in copyright via mere judicial interpretation. Rather, it would require a reform of EU copyright law that would put in place the appropriate safeguards to ensure that if the non-use of copyright works was to trigger the loss of economic rights, authors will have access to appropriate support and recourse to challenge this process.

A bit of property never hurts if you
stay on top of it...

The book juxtaposes the historical evolution of the concepts of property and copyright across four national jurisdictions: the UK, France, Germany and Italy (see Chapter 1, 2 and 4). Sganga shows the extent to which the uneasy theoretical framework of European copyright law is attributable to the differences in conceptualizing  copyright and property  across these countries (Chapter 3 and 4). Propertizing European Copyright’ does not cover the question of Brexit, most likely due to the timing of the event. It will be interesting to see whether the narrative on European copyright changes post-Brexit, and if the underlying rationale of copyright evolves as the main common-law jurisdiction of the EU pulls out of the copyright  harmonization project the EU has been engaged in since the 1990s. Will Brexit facilitate copyright harmonization within the remaining countries and encourage a stronger property-based rationale under European copyright law? 

The book will be useful to academics in intellectual property law interested in the foundational theories of copyright. Chapter 1 and 2 will be particularly helpful to students as they provide a clear and concise summary of the justifications for copyright, a topic that is the starting point of most curricula on copyright.

Book reviewed: Propertizing European Copyright – History, Challenges and Opportunities by Catarina Sganga (2018) Edward Elgar. 336 pp. Hardback Price: £90.00 Web: £81.00. ISBN: 978 1 78643 040 3. An electronic version of the book is also available from £21.60, see  e-books.com or Google Play Books. For more information, click here.