A plea for EU copyright unification coming from … the EUIPO?

As IPKat readers know, unlike other areas of IP, the creation of an EU-wide copyright title has never appeared like a concrete possibility ... yet. 

Indeed, the history of EU copyright harmonization has progressed in steps, with several directives (and a couple of regulations) being adopted over a period of 30+ years.

Despite the relatively limited legislative harmonization, over the past several years the copyright laws of individual EU Member States have nevertheless become more and more harmonized, also thanks to the pivotal role played by the Court of Justice of the European Union (which I examine here).

Now – quite unexpectedly one might say – a call for greater harmonization – or rather: unification – of copyright laws seems to have come from the newly appointed Executive Director of the European Union Intellectual Property Office (EUIPO), João Negrão.

Read on to find out how and when!

A short history of copyright harmonization in the EU

Since the signing of the Treaty of Rome in 1957, the process of European integration has been linked to the creation of an internal market, where a number of basic freedoms – including freedom of movement of goods and services – would be guaranteed.

Throughout the 1980s, it became apparent that harmonization of IP laws would be also necessary to achieve this overarching internal market-buidling goal. During the following decades, the harmonization discourse touched upon all the main IP rights, including copyright.

Over time, several directives aimed at reducing or removing certain differences in the copyright laws of EU Member States, as well as a limited number of regulations that touch upon specific aspects of copyright law, have been adopted.

In 2007, the Treaty of Lisbon introduced a provision, Article 118(1) TFEU, which could provide – though not necessarily without problems – the legal basis for more ambitious harmonization than what has been the case so far, including the establishment of a EU-wide copyright title. This provision vests the European Parliament and the Council, when acting in accordance with the ordinary legislative procedure, with the power to establish measures for the creation of EU-wide IP rights and for the setting up of centralized Union-wide authorization, coordination and supervision arrangements.

Creation of an EU-wide copyright title

The creation of a EU-wide copyright title has been discussed for a long time. As early as 1998, in the context of the 1997 proposal of what would eventually become the InfoSoc Directive, Dietz wondered (‘The protection of intellectual property in the information age - the draft E.U. Copyright Directive of November 1997’ (1998) 1998/4 IPQ 335):

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.

Greater harmonization, or even unification, of Member States’ laws has been also linked to the objective of establishing a more modern framework. As Advocate General (AG) Mengozzi noted:

a large number of problems relating to the application of Directive 2001/29 arise from the insufficient level of harmonisation of copyright law within the Union […] [T]his demonstrates that although it is important to respect the […] legal traditions and views which exist in that regard in the Member States, for the purpose of developing a modern legal framework for copyright in Europe which, having regard to the various interests at stake, makes it possible to safeguard the existence of a genuine single market in that sector, by promoting creativity, innovation and the emergence of new business models, it is necessary to move towards pursuing a much greater level of harmonisation of national law than that attained by Directive 2001/29.

Despite that full harmonization has been considered at different levels and the Wittem Group of academics tried to draft a model for an EU copyright code in 2010, the establishment of an EU-wide title (whether optional or not) has so far not looked like an imminent or even realistic possibility.

In 2015, the European Commission itself called unification of copyright laws a long-term target, but also highlighted the difficulties that such a project would face:

The full harmonisation of copyright in the EU, in the form of a single copyright code and a single copyright title, would require substantial changes in the way our rules work today. Areas that have so far been left to the discretion of national legislators would have to be harmonised. Uniform application of the rules would call for a single copyright jurisdiction with its own tribunal, so that inconsistent case law does not lead to more fragmentation.

These complexities cannot be a reason to relinquish this vision as a long-term target. Notwithstanding the particularities of copyright and its link with national cultures, difficulties and long lead-times have also accompanied the creation of single titles and single rule-books in other areas of intellectual property, notably trademarks and patents, where they are now a reality.

The EU should pursue this vision for the very same reason it has given itself common copyright legislation: to build the EU’s single market, a thriving European economy and a space where the diverse cultural, intellectual and scientific production of Europe travel across the EU as freely as possible.

As of today, territoriality of copyright laws does represent one of the major obstacles to the establishment of a fully functioning internal market for copyright works and other protected subject-matter, especially if one considers that the copyright internal market has become increasingly a services market with cross-border reach, rather than just a ‘goods’ market. The choice of EU legislature to proceed through, as AG Jääskinen noted, ‘a mixed process of partial and full harmonisation’ has failed to remove the fragmentation that is inherent to a territorial approach to copyright protection in the EU.

João Negrão

Furthermore, when it comes to a medium like the internet, which has potentially global reach, the territoriality of copyright laws has given rise to what AG Szpunar has effectively called a ‘fundamental contradiction’ between the cross-border and global nature of the former and territorially limited rights and obligations under the latter, arising from activities undertaken online.

Negrão’s interview

As discovered by fellow Kat Anastasiia, a (renewed) appetite for a more ambitious copyright harmonization project might be upon impetus from the EUIPO and its new Executive Director.

Indeed, in an interview published on Información, Negrão discusses future plans for the EUIPO and states that, if an EU copyright title is established (which he seems to favour), then the EUIPO could manage it.

It will be interesting to see if and how all this translates to facts. 

Next year’s EU elections might also start a new cycle for EU harmonization initiatives in the field of copyright. This is so for two reasons: first, the DSM Directive-induced post-traumatic stress disorder might be finally overcome; second, with the UK no longer an EU Member State, other Member States might be interested in seizing the opportunity thus arisen and emerge as leading forces in driving the harmonization agenda.

As one says, it is sufficient to … wait and see. Stay tuned!