Post-Fordham Copyright Catch-Up

As Jeremy recalled a few days ago on the IPKat, "This year's Fordham IP Conference takes place at Fordham University, New York, on 24 and 25 April.  With the motto "Learn, Debate, Have Fun", this IPKat-endorsed event truly delivers what it promises.  We all learn and we all debate: the only people who don't have so much fun are (i) anyone who finds it difficult to get up in time for the three 7.30 am Sunrise Seminars on the Friday morning and (ii) anyone who is afraid of being wrong, since Fordham exposes all our follies, our foibles and our prejudices."

I am grateful and honoured to be a panellist at this event, where IP personalities - including members of the judiciary, academics and policy makers - will be discussing highly topical recent developments. 

I will be presenting on recent EU copyright developments, and orphan works & extended collective licensing. I will be also attending the following sessions, as per the latest draft programme:

• EU Copyright: Recent Developments;
• Copyright Reform: U.S., EU and other Countries;
• Fair Use & Freedom of Speech;
• Orphan Works and Extended Collective Licensing;
• U.S. Copyright: Recent Developments;
• Public Performance (including Aereo).

On my return, I am conducting a Post-Fordham Catch-Up Event, for which you can register here. This event, which will take place in Central London on 6 May from 1600 to 1800 (BST), will be limited to 20 participants, so to provide copyright enthusiasts with the opportunity to discuss fully the present and future of copyright in the EU and US, as well as related challenges. Registration is £48 (three spaces are being held for students at £16). A further event will be held if there is sufficient demand. 

EU copyright at Fordham: a report (part II)

Having highlighted the position of the Commission as to EU copyright harmonisation (here), an assessment of the last twenty years of harmonisation was provided - inter alia - by Prof Bernt Hugenholtz of the University of Amsterdam.

First, he divided the harmonisation process into three phases, these being (1) 1991-2000, when core copyright directives were issued; (2) 2002-2008, when Member States transposed such directives into national laws; (3) 2009-, in which the CJEU has been playing a pivotal role in interpreting such directives. 

Bernt Hugenholtz

Overall, copyright harmonisation has had positive effects, in that approximating the laws of EU Member States has enhanced legal certainty, favoured the emergence of common principles, as well as the establishment of EU external competence in this field. The negative effects of copyright harmonisation can be held to be the following: (1) slow response to technological development; (2) harmonisation has always moved upwards (see databases); and (3) the overall process has been fairly intransparent, thus favoring lobbying (see the case of term extension(s)).

As to the future of EU copyright, Prof Hugenholtz indicated that lawmaking at the EU level has the potential to become increasingly difficult, due to the following aspects: (1) ever growing number of Member States; (2) increasingly central role of the European Parliament; (3) ongoing discussions as to social legitimacy of copyright; (4) lack of normative constitutional mandate in primary EU law to legislate in the area of copyright. 

This said, the alternatives on the table are substantially two: do nothing or unify copyright at the EU level.

Trevor Cook

Speaking of copyright reforms, Trevor Cook of Bird&Bird LLP offered an enlightening insight into copyright's exceptions and limitations and dealt with the heated topic concerning whether something like US fair use should be pursued in Europe too. This, claimed Trevor, would be inconsistent with the InfoSoc Directive and it is not sure that it would be desirable to introduce in the first place. This is beacuse of the unpredictable outcome of fair use defences in the US. In any case, exceptions and limitations may be extended and updated at the EU level, even lacking an initiative of EU legislative. Reliance on fundamental rights has increased, both before national courts and the CJEU. The latter is because of the new status of the Charter of Fundamental Rights following the Lisbon Reform Treaty (as very recent examples, see the decisions in Scarlet and Netlog). This view was upheld also by Mr Justice Peter Charleton of the High Court of Ireland, Dublin.

Graham Smith

An analysis of recent CJEU decisions was offered in the presentations by Graham Smith of Bird&Bird LLP and Professor Lionel Bently of the University of Cambridge.

Graham has offered a thoughtful overview of aggregating and related cases in the EU.

Lionel Bently

Prof Bently, who has called the harmonising effects of CJEU case law 'harmonisation by stealth' (see earlier 1709 Blog post here), has highlighted how CJEU activism is likely to cast ambiguities on the scope and meaning of EU copyright. This may result in Member States asking the Commission to be more active in the future, so to prevent contradictory and ambigous outcomes. Despite this, harmonisation via CJEU case law has had positive effects too, as it has touched upon aspects which could have not been harmonised with legislation alone. Above all, the outcomes of CJEU decisions are legitimate, though it is doubtful in the first place whether the Court was legitimated to act in lieu of EU legislative. In addition to this, doubts persist as to whether the harmonising effects of CJEU judgments are consistent with national legislation. Finally, the effects of these decisions have contributed to transitional uncertainty in the laws of some Member Stares, notably the UK.

In conclusion, from the presentations offered at Fordham, EU copyright is in need of amelioration. At the moment, there are no ambitious EU legislative initiatives. In any case, these are regarded cautiously and are deemed to require careful consideration before being undertaken. So, at the end of the day, it is not clear whether CJEU activism is the result of unavoidable gaps in legislative instruments or whether, instead, harmonisation via CJEU case law has been made necessary to supply lack of legislative initiative tout court. The best guideline for future action at the EU level? Directly from the LEGO store at the Rockfeller Center:

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?).