The current EU copyright landscape consisting of 27 national copyright laws presents fundamental differences. For example, the use of copyrighted works may be permitted in a certain manner in one Member State but not in another due to the divergent copyright exceptions. Consequently, a lack of a single EU copyright law is a critical restraint withholding the EU from achieving a true digital single market. The previous Reprobel blog analysed the limitations associated with copyright directives that are based on minimum harmonisation. Considering that the discourse around the unification of EU copyright is not about desirability anymore, but feasibility, this blog seeks to analyse the challenges impeding the EU Commission from introducing a single copyright law with a single title.
History of piecemeal copyright harmonisation
Traditionally, copyright was regulated at a national level to preserve Member States’ unique cultural differences (such as France’s longstanding emphasis on conferring moral rights to authors to protect their personalities). In 1988, the European Commission officially adopted future copyright harmonisation initiatives by releasing a Green Paper on Copyright and Challenge of Technology. The primary justification prompting approximation was that disparities in national copyright laws of the Member States impaired the free movement of goods. Since then, several directives and a few regulations have been adopted over 30 years to reduce certain differences in copyright laws of EU Member States (although its practical effect has been paradoxical).
The question of shifting from approximation to unification has regularly arisen between academic and political circles, not only because of the limitations of using Article 114 TFEU (as noted in the Reprobel blog), but also because the process of harmonisation has progressed through both legislative intervention and, significantly, through the case law of the CJEU. For example, in Infopaq, the CJEU played an ad hoc role in upholding the harmonisation agenda by harmonising the notion of originality. Its role has arguably been controversial because it has had to frequently exceed the intention of the EU legislature to harmonise the copyright system to, in turn, ensure the functioning of the internal market. Moreover, numerous instances of erroneous transpositions have overburdened the CJEU with abundant referrals regarding the interpretation of provisions under directives, as seen in Reprobel. While there are no barriers to cross-border trade in copyright works fixed in tangible goods based on the doctrine of exhaustion (Article 4(2) Information Society Directive), there are national barriers to copyright-protected services (such as audiovisual streaming subscriptions), as copyright is based on the principle of territoriality.
In 2010, European scholars united under the ‘Wittem Group’ released a model EU Copyright code to assist the process of unifying EU copyright. In 2015, the European Commission itself called the unification of copyright laws a ‘long-term target’, while acknowledging the difficulties that such a project might encounter. Despite such academic and political consensus as to achieving full harmonisation, it remains incomplete due to conceptual, political, and economic challenges.
Challenges underlying formal unification
The process of unification is fundamentally distinguishable from harmonisation. Unlike the latter, the unification of copyright law seeks to establish a single legal order that is directly applicable across the Union. Cook and Derclaye suggested achieving unification through a copyright regulation based on Article 118 TFEU. Unlike patents, however, a conceptual obstacle to this proposal is the principle of territoriality, whereby a state has no competence to prescribe legal rules to govern activities that occur outside its national borders. Notably, AG Szpunar has regarded the territoriality of copyright to be effectively in ‘fundamental contradiction’ with the internet, as the latter has a global reach. To achieve unification, territoriality would need to be dismantled because if it remains, then national copyright will need to co-exist.
If territoriality is eliminated, there could be borderless copyright protection governed under directly applicable EU-wide copyright rules. Dismantling national barriers might allow businesses, particularly on-demand service providers, to access the EU market without being subject to significant compliance costs, which currently ensue due to differences in national copyright laws. Notably, territorial licensing of copyrighted content on a country-by-country basis leads to extensive market fragmentation, and consequently abolishing territoriality might allow copyrighted service providers to offer EU-wide subscriptions. However, since copyright is intertwined with national identity, Member States have been reluctant to cede absolute competence to the EU. Additionally, collective rights management societies are likely to be unwilling to abandon their current business models that are territorially exclusive, as the value of content differs significantly according to market demands and cultural preferences.
This raises a dilemma whether the EU’s objective of becoming a true digital single market and Member States’ weaknesses in implementing copyright-law policies concerning online dissemination of works (such as failure in transposing rights for press publishers under Article 15 of the Copyright Digital Single Market Directive, which fragmented the definition of ‘very short extracts’) justify prevailing over Member States’ cultural preservation, as it could be difficult to balance both the policy objectives unless copyright is made registrable in the EU. This might enable creators to choose whether they wish to adopt Union-wide protection by creating a title management system. However, this could undermine copyright’s conceptual principle of automaticity, which stems from the philosophical emphasis that creators of original works must have an inherent right to control its use to make the system straightforward.
Conclusion
The EU legislators should not ideally leave harmonisation of copyright with the CJEU, as pursuing a copyright policy is not within the latter’s competence, nor should it be. Rapid digital innovation is transforming the methods in which content is created, distributed, and accessed. Consequently, Member States’ national cultural priorities should not arguably prevail when it comes to shaping a legal framework for technologically-driven sectors, as is the case of copyright law. Despite the challenges impeding unification, considering the EU’s overall objective to become a leader in digital and AI transformation, the time to start unification is now.
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