On 22 October 2009 the European Commission published a consultation paper ‘Creative Content in a European Digital Single Market: Challenges for the Future’. Responses were to be submitted by 5 January 2010 – they can be read here. The paper looks at several ways of making copyright licensing more efficient including amalgamating the digital reproduction and performance rights, aggregating different people’s rights (so you can clear music in one hit), a central collective management rights database, extended collective licensing for orphan works, transposing the Satellite and Cable Directive to the Internet, an Internet flat rate – and a single European copyright, probably replacing existing national copyrights.
Could a Euro copyright be indivisible? This is not be an unprecedented concept – arguably the UK’s copyright is territorially indivisible (e.g. you wouldn’t be able to license rights in Scotland without licensing them in the rest of the UK). However, if a Euro copyright was made territorially indivisible, rightholders could resort to other cunning means to PARTITION (gasps!) and FRAGMENT (more gasps!) the Single Market – e.g. have separate licences in different languages or stipulate that the licence is only for use via a named (localized) service. Perhaps the ECJ would respond with a new body of law: ‘measures having equivalent effect to territorial restrictions’? Let’s suppose this happened. Do consumers across the EU all want identical fare? And how many licensees are able to afford to buy and successfully exploit rights across the entire EU? If rightsholders were limited to offering only pan-European licences, the number of companies that could exploit them would be extremely limited and the EU would have destroyed a competitive market in one fell swoop.
The paper says that the Euro copyright would also harmonize copyright exceptions that are currently discretionary. Further harmonization of copyright exceptions, it is argued, would create more certainty for consumers. Are consumers confused about the lack of harmonization of copyright exceptions? Is homo digitalis in Warsaw disorientated when he reflects on how his exceptions differ from those in Spain? Homo digitalis doesn’t care if copyright law is inconsistent – he just wants less of it.
Anyway, discarding 300 years of copyright law (and embarking on a 150-year transitional period before national copyrights expire) seems a drastic way of fine-tuning exceptions – though some believe that the piecemeal harmonization of copyright has been so flawed that there’s a case for starting from scratch. Mireille van Eechoud expressed this view at a combined BLACA/BCC meeting last week. Piecemeal harmonization, she said, has been overly influenced by fleeting political agendas and has resulted in an incremental ratcheting-up of copyright protection.
A Euro copyright has potential value for enforcement, particularly when copyright has been infringed on the internet. When copyright-infringing content is uploaded to the internet, there still appears to be a lack of consensus in Europe as to whether there is only an infringement where the material has been uploaded or also where it is viewed. UK academics are divided on this point. German courts have held that making available happens in both places and last year a Scottish sheriff’s court held that someone who sets up a website ‘can be regarded as potentially committing a delict in any country where the website can be seen’ (Mackie v. Askew).