Tuesday 16 March 2010

Time for a Euro copyright?

Look out across the plains of the Information Society and you will see that they are now heavily populated by a new species. Homo digitalis has arrived, with his insatiable appetite for electronic stimulus. He is perfectly adapted for online existence: teeth that glint ironically as they mash up, a gaping data tract, a huge stomach (sometimes expanded by pirated material), a rich culture in his super-absorbant intestine and a super-fast metabolic click rate. Rightsholders desperately try to satisfy him using those so-called ‘new’ business models, Advertising and Subscription. These models require content, more and more of it. But each piece of content has a copyright owner or two. Permission must be granted. Is it possible to keep up? Is there anything the EU can do to speed up copyright licensing?

Territorial licensing

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.

The Euro copyright is advocated as a solution to the territoriality of copyright. The paper argues that homo digitalis’s copyright habitat has been impoverished by territorial licensing. Content that is available in some parts of Europe is absent elsewhere. Citizens, it says, should expect to be able to access the same content across borders without impediment. This regional variation is caused both by individual rightholders licensing works differently in different countries and by collective management practices: businesses that offer music services across Europe are hampered because they need to clear public performance rights several times over with collective management organizations in different countries.

Could a Euro copyright be territorially indivisible?

It is suggested that the Euro copyright could make territorial licensing a thing of the past. The paper states that it is because an EU rightsholder currently has 27 separate intellectual property rights that he can license a right in one country but not in another. An EU copyright title would restrain rightholders from this antisocial habit.

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.

Perfecting harmonization

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).

If it is held that infringement does take place where content is viewed, then a judge in one member state could have to apply the copyright laws of all 27 European states – Rome II provides that the law where the infringement takes place governs the basis of liability, grounds for exemption from liability (i.e. exceptions) and the nature and assessment of damage. A Euro copyright would simplify this process – one law, one set of exceptions. Having said this, there are other less longwinded ways of sorting this out such as agreeing that the law most closely associated with the infringement should be applied (or perhaps something slightly more nuanced).

Maybe a little less theorizing and a bit more pragmatism is in order. A question came from the floor at the BLACA/BCC meeting: ‘What empirical evidence is there for benefits arising from harmonization of copyright?’ ‘The evidence is not impressive,’ the reply came. The ECJ’s stats came out yesterday. Why, for example, are the answers to pressing questions of telecommunications law raised in the FAPL case in 2008 not expected until 2011? If Europe is to facilitate commerce, first it should make sure that it is not actually hindering it by jamming on the breaks every so often and putting everything on hold.

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