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
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Content
• Differing Member States traditions –
territorial nature of copyright
preserves cultural diversity but
couldn’t this be preserved in a
common text?
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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
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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
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Comments on Wittem code
• Overall the code is extremely well thoughtthrough, 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.
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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.
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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.
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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?
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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)
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Form
– can’t 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.
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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.”
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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
other’s decisions
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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)
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Form: alternatives
• 4. Recommendations: soft law – good only as
a first step, as non binding
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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.
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Thank you for your attention
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