An EU Copyright Code: what and how? Dr Estelle Derclaye Associate Professor and Reader in Intellectual Property Law, University of Nottingham BLACA/IPI seminar, 14 October 2010

Content What do and may we include in the code? – Limit because of competence of the EU? – If includes every aspect of copyright law: risk of downward harmonisation (eg moral rights), risk of upward harmonisation (e.g. term)? – Do not touch: last bastions of sovereignty: authorship/ownership, dealings, secondary liability, fixation? Because based on property, tort and contract laws? Also art. 118, principles of proportionality and subsidiarity 2E. Derclaye 2010

Content Differing Member States traditions – territorial nature of copyright preserves cultural diversity but couldnt this be preserved in a common text? 3E. Derclaye 2010

Content: example Wittem code The Wittem code includes – preamble – Works including idea/expression dichotomy and originality – authorship and ownership – moral rights – economic rights and – limitations 4E. Derclaye 2010

Content: example Wittem code The Wittem code does not include – public lending right – legal protection of TPMs – secondary liability – related rights including database sui generis right – relationship between copyright and competition law/unfair competition law/contract 5E. Derclaye 2010

Comments on Wittem code Overall the code is extremely well thought- through, clearly written and precise. It has footnotes under the articles rather than recitals, which increases clarity. More political aspect: assumption/agreement that economic rights would still last after the life of the author. This is subject to debate of course. 6E. Derclaye 2010

Comments on Wittem code Non-exhaustive list of works: problem: what if something not included, e.g. perfumes? What should Member States do in case this issue is raised in litigation in one or more Member States? Arguably impossible to have a complete list and problem will always exist. But clause inside code stating that in case of doubt, obligation to refer to the ECJ even if at first instance or else a potential new EU IP court. 7E. Derclaye 2010

Comments on Wittem code Classification of exceptions: – (1) uses with minimal economic significance, – (2) uses for the purpose of freedom of expression and information, – (3) uses permitted to promote social, political and cultural objectives, – (4) uses for the purpose of enhancing competition and – (5) TST but only in the sense that it allows new similar exceptions. Increases clarity + allows differential treatment between exceptions. 8E. Derclaye 2010

Comments on Wittem code Relationship with TPMs but not with contract - why not? Authorship and ownership more advanced than current harmonisation and moral rights provisions, and both bridge the gap between copyright and authors' rights systems Good starting point for future EU legislation. Open it to comments + Commission consultation? 9E. Derclaye 2010

Form Regulation, Directives or Recommendations? Not a code for the sake of a code but because of advantages, namely more legal certainty, ease of application, reduction of costs – otherwise simple academic exercise. 1. Regulation replacing national laws = best re content + form – no need for it to be implemented (less costly and faster added transparency => more legal certainty) 10E. Derclaye 2010

Form – cant use national copyright laws to apply the strictest law – no need to clear copyright in every Member State (part of the territoriality problem solved) IF Regulation is comprehensive (i.e. goes further than current harmonisation and even further than Wittem code). – Now art. 118 so Regulation possible at qualified majority in Council with co-decision procedure. Easier as no unanimity required. 11E. Derclaye 2010

Article 118(1) In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements. 12E. Derclaye 2010

Form: alternatives 2. Directives: slow implementation, not total harmonisation but next best alternative to Regulation so long as no options for Member States. 3. Wait and see – further harmonisation achieved by – EU courts and national courts following each others decisions 13E. Derclaye 2010

Form: alternatives Disadvantages: – (1) need to wait for litigation, – (2) willingness of national court to refer questions – (3) until then law is unclear and – (4) costly for those litigating. Will happen anyway: EU courts will still play a role in the further harmonisation through the interpretation of existing Directives esp. to correct the imbalances (e.g. BHB v Hill) E. Derclaye

Form: alternatives 4. Recommendations: soft law – good only as a first step, as non binding E. Derclaye

Conclusion Are we close? Political question Are we ready? Yes Wittem code/enough maturation of the topics. Goals of EU in IP field changed: Before: end market fragmentation and distortion of competition, improve competitiveness of the economy and protect EU investment against outside free riders. Have remained but new ones now: increasing efficiency and simplicity of IPR for all involved and reducing costs (e.g. patents). In turn, this will increase attractiveness of EU as an IP legal system in which to operate and in turn our competitiveness. E. Derclaye

Thank you for your attention 17E. Derclaye 2010