Leading copyright scholars: full unification of EU copyright now!

As part of the public consultation on a review of the EU copyright rules the EU commission included two questions related to a single EU copyright title. These questions refer to the fact that in the current situation all member states of the EU have their own copyright laws. These laws need to meet the requirements established by an increasing number of EU directives (such as the InfoSoc directive, the Copyright term directive, and the orphan work directive). This has resulted in a certain level of harmonization, but this does not take away the fact that in the EU the a copyrighted work is protected by 28 different copyright laws that apply to 28 different jurisdictions.

Compared to this situation a single European title would mean having one single EU copyright law that confers EU-wide rights to rights holders and establishes EU-wide exceptions and limitations. In our answer to the public consultation we urged the EU commission to start working on a single European copyright title:

Question 78: Should the EU pursue the establishment of a single EU Copyright Title, as a means of establishing a consistent framework for rights and exceptions to copyright across the EU, as well as a single framework for enforcement?

The establishment of a single EU Copyright Title would be a positive step forward for both rightholders and users of copyrighted content. It would help to harmonize the currently disjointed limitations and exceptions and copyright duration schemes across the EU.

Question 79: Should this be the next step in the development of copyright in the EU? Does the current level of difference among the Member State legislation mean that this is a longer term project?

Pursuing the establishment of a single EU Copyright Title should be the next step. Work on this should begin immediately.

One of the other organisations that also advocated taking steps towards a single EU copyright title is the European Copyright Society (ECS). In its response the ECS (which is made up of leading European copyright scholars and academics) argued for for the introduction of Union-wide copyright title and for the simultaneous abolishment of national copyright titles.

Just before the holidays the European Copyright Society reaffirmed this position by sending a letter to Commissioner Oettinger in which it once again advocates for a unification of EU copyright law. In their letter the members of the society briefly affirm the need to modernize the existing EU copyright rules (dryly noting that they “trust that [the European Copyright] Society’s opinions will be taken into account”) before they urge the Commissioner to go a step further:

In this letter, however, we would like to go a step further and underscore the need for a more forward looking and further reaching reform of copyright in the EU – in the form of actual Union-wide unification (not further harmonization) of copyright. The Members of the European Copyright Society are convinced that the time is now ripe to start work on a European Copyright Law that would apply directly and uniformly across the Union.

Further into the two-page letter they point to the fact that EU treaties already provide a mandate for the full unification of EU copyright law. While there are many septics such a step is not only needed to meet the requirements of a single digital market, but also probably inevitable:

In the opinion of the European Copyright Society a more ambitious solution is now called for: true unification of copyright by way of a European Copyright Law (Regulation) that would replace national legal titles. Article 118 of the TFEU, introduced by the Lisbon Reform Treaty, creates a specific competence for the European legislature to establish intellectual property rights with direct Union-wide effect.

While copyright unification may be considered undesirable, or perhaps too drastic, by certain stakeholders and national legislatures, this is in our opinion the only way a fully functioning Digital Single Market for copyright-based goods and services can ultimately be achieved. It is in fact the logical next step for the EU legislature to take in this field.

As we have stated in our consultation response we could not agree more with the esteemed members of the ECS and we hope that Commissioner Oettinger and other lawmakers pay close attention to the advice provided by such a large number of pre-eminent copyright scholars.

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