1709 Blog: for all the copyright community

Tuesday, 23 March 2010

Harmonizing European Copyright Law

Harmonizing European Copyright Law: The Challenges of Better Lawmaking, by the talented team of Mireille van Eechoud, P. Bernt Hugenholtz, Lucie Guibault, Stefan Van Gompel and Natali Helberger, was published towards the end of last year. The title is published by Wolters Kluwer within its Information Law Series and is based upon the results of two major studies which the European Commission commissioned in 2006 and 2007 -- not that the Commission has a great track record in taking the reports that emanate from the University of Amsterdam's Institute for Information Law ((IViR) warmly to its heart.

The book's web-blurb states as follows:
"This book will provide analysis of the current state of play of and suggest direction for future development of European copyright law and related rights. The acquis communautaire is reviewed in depth, starting with an analysis of the exact competence of the EC in relation to its declared policy ambitions from the past to the present.

Next, the body of European copyright law is described. This is done not in the traditional way, i.e. on a directive-by-directive basis, but following a scheme of the principal elements that national copyright and related rights law share (e.g. what is protected subject matter, who are beneficiaries, what is the nature and extent of the exclusive rights and limitations, term of protection). Of all principal issues, the degree and scope of harmonization is analysed, put into the perspective of Member States’ obligations under the relevant international treaties (e.g. Berne Convention, Rome Convention, TRIPS agreement, WIPO internet treaties).

In addition, a number of items on the European Commissions current legislative agenda are subjected to a critical review, in light of our findings on the successes and shortcomings of the harmonization process so far".
The principal headings into which copyright is divided relate to (i) what is protected, to whom does it belong and for how long? (ii) the various rights to stop people doing things and the borders of those rights, (iii) those conceptually new-fangled topics, "rights management information" and technical protection measures. Following this, the study focuses on specific areas in which copyright is brought to bear: (iv) extension of term for sound recordings, (v) the term of protection of co-written musical works ('musical', in this context, including works which consist of both music and lyrics), (vi) the increasingly popular topic of orphan works, (vii) an appraisal of harmonisation ("blessings and curses") and (viii) the 'last frontier' of territoriality. Each of these units has its own conclusions and assessment.

Probably the best assessment overall of Europe's attempts at harmonisation may be summarised as follows: difficult task, not always well done; improvements are needed in terms of (i) identifying the issues, (ii) formulating the correct policy for dealing with them and (iii) articulating that policy in the manner best able to facilitate its consistent implementation. Let's hope that the next edition of this work can, without loss of the sometimes painful directness which characterises it, offer news of improved performance in this, the most slippery and intransigent of Europe's IP rights to harmonise.

Bibliographic details: ISBN 9041131302 , ISBN 13: 9789041131300. Hard cover, xviii + 375 pp. Price: $US 145. Web page here.

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