Copyright reform in the EU Dr Estelle Derclaye, University of Nottingham International Conference on Copyright Policies and the Role of Stakeholders Athens, 26-27 June 2008

Outline I. What are the European Commission’s future plans in this respect? II. What should be done in addition to/instead of what the Commission plans to do?

I. The European Commission’s plans “Green paper on copyright in the knowledge economy” Copyright levies reform Term of performers’ rights and sound recordings rights lengthened to 95 years Communication on creative content online The Commission continues to monitor the collective management of online rights. A monitoring report was published February this year. More monitoring is possible in the future.

II. What should be done in addition to/instead of what the Commission plans to do? Research handbook on the Future of EU Copyright, Edward Elgar Publishing Despite the criticisms one can make on the acquis, it cannot be denied that the EU harmonisation work has overall been both sweeping and useful – what if exhaustion, rental and lending rights and the protection of computer programs had not been harmonised? A. Areas where harmonisation is still needed B. Areas where harmonisation is not needed

Areas where harmonisation is still needed

Computer programs limitation to only one back-up copy exhaustion principle does not apply to downloaded programs and updates (all works) definition of lawful user (// Database Directive) anti-circumvention provision more lenient than art. 6 Infosoc Directive

TPMs and anti-circumvention provisions Relationship TPMs preventing the benefit of exceptions – art. 6 Infosoc Directive in many ways not satisfactory between TPMs and private copying levies

Moral rights Law more or less lenient towards waivers Perpetual term of right of integrity?

Subject-matter Perfumes, titles, characters, technical subject-matter (furniture, household articles…) are protected in some countries and not in others -> internal market issue? What to do: categorisation or not?

Conflict of laws Virtually not harmonised More on private international law tomorrow

Databases Sui generis right - still too strong even after 2004 ECJ decisions. Need more exceptions + broaden the existing ones. Limits should be made imperative and contracts and misappropriation clearly pre-empted => this is a general comment valid for all works The term could remain renewable at the same conditions but a solution be found make sure that those elements where there has been no substantial investment are clearly in the public domain

Exceptions Infosoc Directive => optional Exceptions underlain by the public interest and human rights should be made mandatory and imperative so that neither contracts nor TPMs can override them Three step test

How to harmonise those areas? Regulation, Directives, Recommendations? ECJ will still play a role in the further harmonisation through the interpretation of existing Directives esp. to correct the imbalances created in Directives (e.g. BHB v Hill) But arguably not enough and not satisfactory as (1) we need to wait for litigation, (2) willingness of the national court to refer questions to the ECJ, (3) until then the law is unclear and (4) it is costly for those litigating National courts following each other’s decisions

Areas where harmonisation is not needed

No harmonisation needed Originality (?) Duration (?) Economic rights – codification Licenses and transfers Fixation

Thank you for your attention