Should the EU unify copyright laws?

Kat (re-)unification

Should the EU unify the copyright laws of its Member States and introduce, over thirty years after the start of the harmonization process, a unitary copyright title? The short answer is: yes. And that will be unavoidable too.

The real question is therefore another: how to go about doing that? In order to answer this, it is necessary to start from the beginning and retrace the steps of a harmonization process that has led to a framework, which is an understatement to call ‘complex’.

1988 – 2024: A (very) piecemeal history of a piecemeal harmonization process

The official start of the harmonization project is 1988, when the now European Commission released its Green Paper on Copyright and the Challenge of Technology. There, future harmonization initiatives appeared already anchored not only to an internal market-building rationale, but also to the objective of ensuring the now European Union’s overall competitiveness vis-à-vis third countries and the need to strike a fair balance between the rights and interests of different parties.

Since then, harmonization initiatives have progressed on a fragmentary and project-specific basis. The instrument chosen to this end has been invariably the unavoidably frustrating one of directives, with only a couple of regulations being adopted over time. Today’s copyright acquis looks like one for which the ‘less is more’ basic rule of fashion has not clearly been of much inspiration or, if it has, it has been so for all the wrong reasons. Specifically: not to speak seriously about a more extensive and altogether different harmonization ambition.

That said, the question whether unification – rather than approximation – is the way forward has been at least in the air for nearly thirty years already. Indeed, in 1997, the proposal for what would be eventually adopted as the InfoSoc Directive in 2001 was released. The following year, Adolf Dietz wondered “whether sooner or later we must arrive at a point where we should leave the process of step by step harmonisation behind and begin to start a more systematic approach, which would eventually result in a community copyright in the same way as such a community right exists already in the trademark field and--mutatis mutandis --at least in draft form also in the patent field.” (A Dietz, ‘The protection of intellectual property in the information age - the draft E.U. Copyright Directive of November 1997’ (1998) 1998/4 IPQ 335)

Since then, the question of unification has resurfaced on a regular basis, most likely also prompted by the realization that, in the copyright field, harmonization has not been only achieved through legislation but also – in very substantial, if not great part – through the case law of the Court of Justice of the European Union (CJEU) which, starting with Infopaq in 2009, has played a truly pivotal role in shaping and re-shaping the EU copyright system, frequently exceeding not only the letter but also most likely the intention of the EU legislature.

Just a few examples: in 2010, the Wittem Group of academics released a model EU copyright code. In 2013, in his Opinion in Amazon.com, Advocate General Mengozzi expressed his dissatisfaction at then current state of harmonization: “for the purpose of developing a modern legal framework for copyright in Europe […] it is necessary to move towards pursuing a much greater level of harmonisation of national law than that attained by [the InfoSoc Directive]. In 2015, the European Commission itself called unification of copyright laws “a long-term target”.

Fast forward to today, and we see that – over a handful of months – two further calls for unification or consolidation appear to have been authoritatively made. First, in an interview published on Información in October 2023, the newly appointed Executive Director of the European Union Intellectual Property Office (EUIPO), João Negrão, hinted at the desirability of full unification of copyright and stated that, if an EU copyright title was established, then the EUIPO could manage it. Then, in April 2024, former Italian prime minister Enrico Letta released his report Much More than a Market and inter alia recommended the establishment of a European Code of Business Law through “the systematic codification of the existing legal framework”, including in the field of “intellectual property law”.

Why, how, and when unification?

Within this complex debate, of which only some of the main steps have been retraced here (see in greater detail here, Chapter 1, we thus need to agree on why unification would be desirable, how it could be achieved, and when.

Let’s start with the ‘why’. The establishment of a real internal market is an obvious justification: as things currently stand, the only meaningful internal market that has been established is the one created by the CJEU through its body of case law. Vice versa, if we limit ourselves to the legislative efforts – especially those of EU Member States when transposing directives – the resulting picture is a truly depressing one.

In charge of drafting the national transposition
of the latest EU copyright directive ...

Let’s take the example of national transpositions of the DSM Directive, that is: something that was adopted (as the title itself indicates) to establish a digital single market. Further to the completion of national transpositions of key provisions like Article 17 (treatment of online content-sharing service providers), the result is paradoxical: the current framework is much more fragmented now than how it would have been if no legislation had been adopted and, instead, the only guidance available had been that of Article 3 of the InfoSoc Directive as interpreted by the CJEU through multiple referrals over the years.

There are other good reasons to support unification, including a rationalization of the system and the likely need to overcome (or seriously rethink) principles like territoriality. Furthermore, unification could serve to enhance the overall competitiveness of the EU vis-à-vis third countries: it would be a unitary title for 27 Member States and a market of half a billion people. Last but not least, it could be also an opportunity to tackle the argument – often foolishly made – that “the CJEU has taken over in the copyright field”.

So, if unification is a good idea, how can it be achieved? The answer regarding the instrument is simple: a regulation. The legal basis for that would be Article 118 of the Treaty on the Functioning of the European Union. The real question regarding the ‘how’ is a different one though: should a unitary title co-exist with national copyright titles, as it is the case in other fields of IP? Probably, here the answer would be no: if territoriality needs to go, then it needs to go. There cannot be a truly functioning internal market for copyright content and copyright-based services disseminated through online channels if such a system had to co-exist and run in parallel with 27 different copyright laws.

This leads to the final point: when are we going to achieve all of this? The next term of office of the European Commission will start in a context that is very different from that of the term that is just about to end, on a historical, political, and technological level alike. A growing appetite for ambitious policy- and law-making in the EU appears to be there though: for IP, the Unified Patent Court has now been launched; for tech and online, important pieces of legislation have been (rapidly) adopted over the past several months (Digital Services Act, Digital Market Act, Data Act, AI Act). Can copyright be next? It should.

Unification is the way forward. I have not been saying that only recently. One of the main conclusions of my 2012 doctoral thesis on the EU concept of originality was that unification of copyright would be unavoidable because the CJEU has de facto initiated – without seeming possibility of reversion – such a process. That holds even truer today: considering the existing legislative framework and what the CJEU has done over the past several years, I would like to dare anyone to indicate a meaningful area of copyright where independent national initiatives are not only possible but – above all – feasible.

However, I am also a realist. Should unification not be in the cards yet, then I would propose two alternative ways forward.

The first would be to codify the existing acquis, but in such a way that a rationalization of legislation is accompanied by the crystallization of existing CJEU case law, especially the one that the Court itself calls “settled”. Such a copyright ‘code’ would of course not remove the need for further CJEU referrals but would, at least, reflect a truer image of what copyright law is like in Europe today than what the chaotic list of directives and regulations does.

If, however, codification was not desirable either, then I would suggest a twofold way forward for future initiatives. Insofar as the instrument to harmonize is concerned, regulations – rather than directives – would be preferable if not, as the recently adopted horizontal instruments do suggest (‘Act’ in EU language means ‘regulation’ … ), unavoidable. Again, if such a thing was not possible either, then we need to look into the national level: how Member States have transposed copyright directives over the past few years is embarrassing when not shameful. Ill-advised (and ill-intentioned), national legislatures have behaved in such a way that things done and sealed in Brussels could be reopened and re-done across the various European capitals. We all know what has happened next: it has then been for national courts and the CJEU to try and make sense of such a sad state of affairs.

So, to sum up and conclude. The best thing for EU copyright would be unification. The second best option would be codification. If either was not on the horizon though, then let’s harmonize through regulations rather than directives. If that was not possible either, then let’s have Member States do a better job at transposing directives into their own laws. For copyright’s sake, being diverse in unity appears to be a more appealing proposition going forward than continuing to be “United in diversity”.

* This contribution, which will be published as an editorial in the Journal of Intellectual Property Law & Practice, is based on a talk with the same title delivered during the 5th Intellectual Property Case Law Conference, Decoding Decisions: Insights from Selected Case-Law, organized by the Boards of Appeal of the European Union Intellectual Property Office and held in Alicante (Spain) on 29-30 April 2024.