Diversity versus Unity:
Reflections on the Future of Copyright
Law in the European Union
Sixth Advanced Research Forum on Intellectual Property Rights
Selected Topics on Cultural and Legal Pluralism in IP Law
organized by
the World Intellectual Property Organization (WIPO)
and the Faculty of Law, Hebrew University of Jerusalem
Geneva, May 29 to 31, 2012
Franciska Schönherr
PhD Candidate and Research Assistant Centre for International Intellectual
Property Studies (CEIPI)
University of Strasbourg, France
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Diversity versus Unity: Reflections on the Future of Copyright Law in the EU
I. Diversity versus unity in EU copyright law - defining the problem
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The current legal framework: partial harmonisation of national laws
EU’s method: approximation of laws by (mainly) sectorial directives
Interpretation by the Court of Justice of the EU (CJEU)
Underlying motivation: respect of Member States’ diversity
Different legal traditions, approaches
Competence issues
Result: no unified legal framework, incoherence
On the practical level: lack of legal certainty, cross-border transactions
complicated, no completed “digital internal market”
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Diversity versus Unity: Reflections on the Future of Copyright Law in the EU
Diversity versus unity in EU copyright law - defining the problem continued
• Conclusion: a more coherent, transparent legal framework is needed
• Need for:
• More unity enhancing transparency
• Flexibility, allowing for adaptation to new contexts and respect for
diversity
• Challenge of translating these conflicting/complementary imperatives
into policy choices
• How far should “unification” go?
• Which legal instruments would best consolidate the tension between
unity and diversity?
• How would such choices impact on the thematic aspects of EU
copyright law?
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Diversity versus Unity: Reflections on the Future of Copyright Law in the EU
II. Attempts to increase unity: the project of EU-wide codification of
copyright law
• Tendency?
• Communication of the European Commission of 24 May 2011: possible
project of EU-wide “codification”
• Codification as consolidation of the EU acquis?
• Judicial activity of the CJEU
• General tendency of “Europeanization” of private law
• Proposal of academia: The European Copyright Code of the Wittem
group
• How could/should such a project be implemented?
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Diversity versus Unity: Reflections on the Future of Copyright Law in the EU
III. Accommodating unity in diversity: implications for policy choices
• EU-wide codification of copyright law: a project under construction
• Choices relating both to possible form and contents of a “code” need to be
considered carefully
• Possibilities of “codification”:
1. Consolidation of the EU acquis – optimisation of the acquis?
• Allows for a higher degree of diversity
• Possible in the short term?
2. Replacement of national laws through an EU copyright law
• High degree of unity, legal certainty, transparency
• Direct horizontal effect of a regulation’s provisions under certain
conditions
3. European Commission's suggestion: an “optional ‘unitary’ copyright
title”
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Diversity versus Unity: Reflections on the Future of Copyright Law in the EU
IV. An “optional ‘unitary’ copyright title” – towards a two-tier system
of EU and national copyright law?
• “optional” – a soft law approach?
Uncertainty about actual effects
• An optional “title” – to be bound to some kind of formalities?
• An optional “regime” – to be chosen, e.g., in the framework of
transactions?
Example of the Commission’s proposal for a regulation on an optional
common European sales law (COM(2011) 635 final), area of contract
law
Advantages of a second set of optional rules: e.g., respect of principles
of subsidiarity and proportionality, legal certainty
• Is the European Commission considering a two-tier approach?
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Diversity versus Unity: Reflections on the Future of Copyright Law in the EU
An “optional ‘unitary’ copyright title” – towards a two-tier system of
EU and national copyright law? - continued
• Options and opportunities of a two-tier approach
• Division by subject matter: idea of a two-tier system within a specific
field of law
Different degrees of protection, example of databases, see e.g., Annette
Kur, 2012
• Division by territory: idea of a two-tier system distinguishing the
national/EU level
Trademark and design law: different regimes, different territorial
scope of protection
• Justification: differing needs as to the scope of protection
• Applicability to the idea of an optional EU wide title?
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Diversity versus Unity: Reflections on the Future of Copyright Law in the EU
An “optional ‘unitary’ copyright title” – towards a two-tier system of EU
and national copyright law? – continued
• Applicability to the idea of an optional EU wide title?
• Example:
1.National level: “classic” subject matter, low or no cross-border dimension,
high degree of diversity
Continuation of the current approach: approximation where justified by
imperatives of the EU internal market
2.EU level: “new” subject matter, cross-border dimension preponderant,
transactions in online environment, less need to respect diversity,
increased costs and complexity
See, e.g., Marco Ricolfi, 2012 (forthcoming): “opt-in” for broader
protection, “creative commons by default”
“Optional regime”: extensive, detailed study necessary to determine needs
of stakeholders and markets.
• Certain problems need to be solved in the short term, e.g., the issue of
limitations to copyright law.
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Diversity versus Unity: Reflections on the Future of Copyright Law in the EU
V. Outlook on future activity relating to the contents of copyright law
in the EU
• Wittem Code: “main aspects” of most copyright systems covered
• Perspective: short, medium, or long term?
• Starting point: the EU acquis – consolidation, improvement , and
completion
• Orientation/“fil rouge“? Idem as for form – accommodation of both
unity and diversity/flexibility
• The example of exceptions and limitations to copyright law: current
system insufficient, neither flexible nor transparent (e.g., Martin
Senftleben, 2010)
• Proposal of the European Copyright Code: a closed list of limitations
combined with an opening clause
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Diversity versus Unity: Reflections on the Future of Copyright Law in the EU
Thank you for your attention!
Comments and suggestions are very welcome:
franciska.schonherr@ceipi.edu
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