The Competence of the European Union in Copyright Lawmaking

The title of this posting was also the title of a seminar organised by the Institute of Advanced Legal Studies, University of London, on Thursday 15th December. The speaker was Dr Ana Ramalho who is Assistant Professor of Intellectual Property law at Maastricht Univeristy, and author of a book also bearing the same title. Dr Ramalho's book was reviewed by Nicola Searle on the IPKat website back in May.

As I often question both the Competence and the competence of the EU when it comes to copyright lawmaking, I hoped this seminar would provide some real answers. Unfortunately in her main presentation Dr Ramalho really only outlined the methodology she adopted in order to analyse the copyright aquis against the objectives which the EU had asserted in various preparatory papers that led to the 9 Directives which are largely concerned with copyright. To be fair to her, the original plan for the evening was also to have involved a contribution from Prof Lionel Bently who would, no doubt, have provided a contrasting look at the subject. Unfortunately he was unable to attend and so the remainder of the time was taken up with questions from the floor.

If one consults the EU's own website on the subject of competences, there is no mention of intellectual property per se, but from Dr Ramalho's presentation (and her book which is based on her PhD thesis) it quickly becomes clear that the bulk of the EU's competence in this area derives from its remit to establish and maintain a smooth running internal market. Versions of this phrase crop up in the recitals of virtually all of the 9 Directives which impinge on copyright, even where, as in the case of the Orphan Works Directive (pdf), it is hard to really see a direct impact of orphan works on the internal market in the context of the four freedoms. It is true that Article 118 of the Treaty on the Functioning of the EU (the Lisbon Treaty or TFEU) does confer a competence for the EU to " ... establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union ... " but Dr Ramalho thought this was a rather weak source of authority and certainly  [see first comment below] not one which imposed a mandatory duty on the EU.

Dr Ramalho's methodology and analysis of the subject of competence are complicated and detailed and so you will need to read her book to get the full flavour of what they entail (alternatively a shorter paper on the subject by the same author is available for download here). I'm not sure how much the analysis is of value in the real world (ie one inhabited by people other than politicians or academics) but, as was stated in the introduction to her presentation, her work is one of few academic works on this subject and is a valuable resource for that reason alone.

Without explicitly saying so, it would seem that one of Dr Ramalho's conclusions is that greater harmonisation of copyright law across the EU is desirable, although it is questionable whether at this stage there is the political will to delve into parochial matters (the tension between the common law Lockean view of copyright versus the droit d'auteur ethos for example) which still account for the many anomalies which can be found at the level of national copyright legislation. The low hanging fruit (copyright term, the relatively uncontentious Articles 2 to 4 of the Information Society Directive, for instance) having been taken, the Commission seems much more inclined to look at completely new areas such as the so-called value gap, rather than become too bogged down in fights over such things as harmonising the legislation over freedom of panorama, or moral rights, or as mentioned by Dr Ramalho, the contractual relationships between authors and the various intermediaries which make up much of the creative industries. This is rather like building a grand edifice before the foundations have been finished.

And regrettably Dr Ramalho could not be drawn into any detail about the role played by the CJEU in creating new law in this area, although she acknowledged that decisions such as Infopaq had had that effect. Maybe if Prof Bently had been present the discussion might have turned to Svensson and the court-made concept of a new public!