FINE-TUNING OR A BIT OF A FIDDLE? EUROPEAN COMMISSION TO COMPOSE FURTHER COPYRIGHT HARMONISATION

Stop press: this has come from the European Commission today. Comments in colour are from the IPKat.
 
Copyright: Commission launches consultations on fine-tuning of legislation
 
The European Commission has launched consultations on simplifying and fine-tuning existing EU legislation on copyright and related rights. The consultations, open until 31 October 2004, are based on a Commission working paper which suggests that current EU copyright legislation is generally effective and consistent, but would benefit from some improvements.
The IPKat says: most current copyright legislation has focused on those areas that are most easily harmonised, such as software protection, duration of copyright term, rental and lending right, satellite transmission and database protection, but its attempts to address live contemporary issues through its information society directive (directive 2001/29) have been heavily cricitised. No attempt has yet been made to harmonise major problem areas such as what actually constitutes a literary, dramatic, musical or artistic work.
 
The Commission would take into account the results of the consultations before proposing legislative amendments within the next year or so. The review of the existing Directives is in line with the Commission’s Better Regulation Action Plan. For the full text of the working document, see here. 

Internal Market Commissioner Frits Bolkestein said:

“Seven copyright Directives have been adopted over ten years. We need to make sure the early Directives are consistent with the more recent ones. This type of nuts and bolts work makes a real difference to how EU law works on the ground and we owe it to rights holders and content users, including consumers, to make this important body of EU law as coherent and as simple as possible”.

The IPKat says: the easiet way to make copyright law "coherent and simple" is to convert it from a right to restrict the use of a protected work to a mere right to collect revenue in respect of its use. This is however a bit of a non-starter: it undermines the whole concept of droit d'auteur and is definitely not in keeping with the fundamental assumptions which underpin the Berne Convention and TRIPs.

The working paper assesses, in particular, whether any inconsistencies between the different Directives hamper the operation of EU copyright law or damage the balance between rights holders’ interests, those of users and consumers and those of the European economy as a whole.

The working paper concludes that there is no need for root and branch revision of the existing Directives but that fine-tuning is necessary to ensure that definitions – for example of reproduction right - are consistent. Similar updating seems necessary with respect to the exceptions and limitations set out in the different Directives.

The working paper also assesses whether further legislative or other action is needed to ensure the Internal Market functions properly. It concludes that the immediate need for action may be limited to achieving a level playing field on the criteria used to determine the beneficiaries of protection in the field of related rights. In other words, deciding whether it is on the basis of nationality, place of business, first fixation or the first publication that a phonogram producer or a broadcasting organisation from outside EU would be entitled to protection in the EU.
The IPKat says: this really is fine-tuning. Further, these issues are scarcely those that concern users and consumers, to whose needs lip-service has been paid above.

Some rights holders have argued for extending copyright protection for recorded music from 50 years to 95, to bring the EU in line with the US. However, the working document suggests that there is no apparent justification for such a change, given for example that there are no longer trade distortions arising from different terms of protection within the EU’s Internal Market. It also notes that in nearly all other industrialised countries, the relevant period is also 50 years.
The IPKat says: this is the minimum period specified under the Rome Convention and under Article 14.5 of TRIPs. If it were extended to 95 years, it is quite conceivable that the copyright in a sound recording of a musical work would subsist after the 70 years post mortem protection for the composer of the music had expired.

The working paper is not an exhaustive presentation of future EU copyright policy. It takes account of discussions with Member States and stakeholders over the last two years, covering in particular the provisions of the Software Directive (91/250/EC), the Rental Right Directive (92/100/EEC), the Term of Protection Directive (93/98/EEC) and the Database Directive (96/9/EC).

The full text of the working paper, and details of EU copyright legislation, are available here.