Diversity versus Unity: - PowerPoint Presentation

Slide1

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 bythe World Intellectual Property Organization (WIPO) and the Faculty of Law, Hebrew University of JerusalemGeneva, May 29 to 31, 2012

Franciska

Schönherr

PhD Candidate and Research Assistant Centre for International Intellectual Property Studies (CEIPI)

University of Strasbourg, FranceSlide2

Diversity

versus Unity: Reflections on the Future of Copyright Law in the EU

I. Diversity versus unity in EU copyright law - defining the problem

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”Slide3

Diversity versus unity in EU copyright law - defining the problem - continued

Conclusion: a more coherent, transparent legal framework is neededNeed 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?

Diversity versus Unity: Reflections on the Future of Copyright Law in the EUSlide4

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 CJEUGeneral tendency of “Europeanization” of private lawProposal of academia: The European Copyright Code of the Wittem group

How could/should such a project be implemented?

Diversity

versus Unity: Reflections on the Future of Copyright Law in the

EUSlide5

III. Accommodating unity in diversity: implications for policy choices

EU-wide codification of copyright law: a project under constructionChoices relating both to possible form and contents of a “code” need to be considered carefullyPossibilities of “codification”:

Consolidation of the EU

acquis

– optimisation of the

acquis?Allows for a higher degree of diversityPossible in the short term?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”

Diversity

versus Unity: Reflections on the Future of Copyright Law in the

EUSlide6

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 effectsAn 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?

Diversity

versus Unity: Reflections on the Future of Copyright Law in the

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An “optional ‘unitary’ copyright title” – towards a two-tier system of EU and national copyright law? - continued

Options and opportunities of a two-tier approachDivision 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?

Diversity

versus Unity: Reflections on the Future of Copyright Law in the

EUSlide8

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: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

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.

Diversity

versus Unity: Reflections on the Future of Copyright Law in the

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V. Outlook on future activity relating to the contents of copyright law in the EU

Wittem Code: “main aspects” of most copyright systems coveredPerspective: 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/flexibilityThe 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

Diversity

versus Unity: Reflections on the Future of Copyright Law in the

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Thank you for your attention!

Comments and suggestions are very welcome: franciska.schonherr@ceipi.edu

Diversity

versus Unity: Reflections on the Future of Copyright Law in the

EU