EU copyright at Fordham: a report (part I)

This blogger has just come back from New York, where she attended the 20th Fordham IP Conference, a symposium held every year, when leading academics, representatives of the judiciary and industry alike gather together at the Upper West Side premises of the Fordham Law School to discuss the most recent trends in the über-cool world of IP.

As far as copyright is concerned, this year particular attention was devoted to the current state of affairs in the EU, with specific sessions covering an entire afternoon of the two-day conference.

A blue print

As is well known, a lot is going on at the moment in EU copyright. Taking account of the activism of the Court of Justice of the European Union (CJEU), which has resulted in the de facto harmonisation of important aspects of EU copyright, and considering both the political (see the Commission's agenda as set out in its 2011 blueprint) and academic (see the 2010 Wittem Project) efforts to engage in a thorough discussion as to the future of this area of the law, it is undeniable that copyright is THE must-have debate this season.

The Wittem Castle,
The Netherlands

Starting with views from the Commission, Head of Unit - Copyright, DG Internal Market & Services Maria Martin-Prat first recalled that in the 1990-2000s copyright harmonisation occurred whenever this was necessary to ensure the proper functioning of the internal market. This objective is and remains at the centre of attention when it comes to legislative initiatives.

At the moment, said Martin-Prat, the priority of the Commission is to facilitate licensing across the EU. Interestingly enough, this implies facing the issue of territoriality. In any case, the establishment of EU-wide licensing system is not going to affect the territoriality of Member States' copyright laws. This is because territorial rights do not necessarily imply territorial licensing, explained the Head of Unit.

Maria Martin-Prat

This said, the Commission's efforts are directed at tackling five areas of copyright. These include improving the functioning of collective licensing and management and, possibly, setting out an extended collective licensing system; favoring mass digitisation of works and facilitating the use of out-of-commerce works, along with orphan works.

As to the issue of whether we need more harmonisation (read: do we need a EU-wide copyright law?), Martin-Prat thought it correct to say that the CJEU has been very active lately (in the last year only, twelve decisions were published and nine references are still pending). However, she found that the concepts harmonised by the CJEU (such as 'originality', 'work', etc) would have never been defined at the level of EU directives alone, so the CJEU has just been filling out gaps which could not but be left out of EU legislation. When she heard this, this blogger was a bit concerned about the implications of such a view. First, it is questionable whether this has been actually the case (see the case of 'originality', which was actually defined, but in relation to limited and specific subject matter, such as computer programs, databases and photographs).  Secondly, such a view implies that CJEU interventions can (ought to) be pretty pervasive as regards the copyright laws of EU Member States.

A EU copyright code, held Martin-Prat, may be a good idea, but this is not going to happen any time soon, as more urgent issues need to be addressed first. These concern private copying; rights of (online) reproduction, licensing and making available; and copyright limitations and exceptions.

As announced in the 2011 blueprint, the review of the InfoSoc Directive has just been started and, in any case, no legislative initiatives will be taken till next year (to say the least?).