IVIR Review of the EU Copyright Acquis Communautaire
The acquis communautaire is the accumulated body of law in the European Community, it comprises ECJ decisions, directives, regulations, treaties, recommendations and opinions. When a new country becomes a member state it must reform its legislation to be consistent with the acquis. Last year the Institute for Information Law at the University of Amsterdam (IVIR) was commissioned to carry out a study of the acquis in the area of copyright law, no mean task given that there have been seven directives in just fifteen years.
In addition to a general review of EU law, IVIR were asked to examine several issues in particular: the copyright term for sound recordings; problems related to multiple copyright ownership and orphan works; consumer awareness of copyright; term for co-written works.
1. The first section provides a detailed overview of the legal basis offered for copyright harmonization and then proceeds to examine the subject matter, scope and limitations to copyright protection. One notable recommendation, concerning limitations to rights, echoes the Gowers’ report suggestion to amend the law to introduce a transformative use exception, where they propose:
“…a more flexible and forward looking regime… A non-exhaustive list of limitations would allow Member States to respond more quickly than the EC legislature to urgent situations that will arise in the dynamic information market. Such an open-ended regime would best reflect the principles of subsidiarity and proportionality.”
2. The proposal for an extension of the term for sound recordings to bring it up to the levels of the US (95 years) meets an icy reception. A detailed history of the introduction of ‘related rights’ is offered, as well as a comparative analysis of their treatment in the European Union and other important markets (US, Canda, Australia, Japan, China, Brazil, Mexico).
Much attention is given to the different rationale behind copyright and related rights; the former were there to protect creative works irrespective of their media, whereas related rights are protection for a financial investments. An exception to this is the case of performers, whom it is suggested were too weakly organized to win protection under copyright and thus got lumped in unjustly with the commercial players.
A few barbs are justly thrown in for good measure, such as the icy commentary on the need for more protection to monetise the infamous long tail:
“A term extension might indeed inspire phonogram producers to revitalise their back catalogues recordings, and make them available to a variety of (digital) distribution channels. This could, in turn, foster competition and innovation in new distribution models, also for niche content, and improve public access to sound recordings. On the other hand, a longer term of protection would prolong the exclusive rights of phonogram producers to control exploitation models for back catalogue repertoire, certain secondary uses, and new distribution models. The immense market potential of digital business models should already today have provided ample incentive to phonogram producers to exploit their back catalogue in new forms. The recent history of the internet, however, indicates that these opportunities have not always been seized by those stakeholders now asking for a term extension.”
Dogmas passed off as gospel in industry proclamations are treated to a sceptical interrogation:
“It is important to be aware that, from an economic point of view, there is no real evidence yet whether, and if yes, to what extent intellectual property rights in general, and related rights specifically, actually provide the necessary incentives to promote innovate, create and invest.” (p.106)
A detailed examination of the economics of the phonograph industry follows, and the effects of lost revenue are measured against the costs incurred through an extension of both monopoly pricing and continued control of the secondary markets (where works are licenced for other uses). The verdict? Term extension would not be justified.
3. Different national regimes have divergent ways of approaching musical works comprising the contributions of multiple authors, with effects for the term of protection for those works. In the UK and ireland a musical work will have rights to the lyrics, musical composition and the sound recording, each of them distinct. In Portugal such works will sometimes be deemed a collaborative work and the term of protection will begin to run from the death of the last of the authors (as is the case throughout Europe in the case of audio-visual works). Meanwhile in Germany there exists a class of creation known as ‘associated works’ where the different elements are consdiered to be distinct whilst constituting a whole – mind-bending stuff! – and each of their copyright terms run individually; as a result the heirs of the first to die will stop receiving royalty payments before the others and so on.
IVIR concluded that the scale of the problem at the moment was too modest to justify legislation: opera is the only area affected and who actually cares about it?!
4. Even deeper into the labyrinth … the intrepid IVIR team delve into the arcane problems related to multiple ownership and clopyright clearance, where fragmentation of title can erect obstacles to licensing, as each individual has the possibility to ‘hold-out’ and ransom potential users. On a related point they consider the options for dealing with the problem of orphan works in Europe, where the rightsholders prove to be untraceable. The scale of the problem in the EU is less than that in the US due to the lower level of damages a user risks in the case of subsequent litigation. Their recommendations are thus focussed on improving the quality of rights management information available and a hypothesis of a public body which would grant one-off licenses, exact a pament and hold it in escrow, to be paid to the rightsholder in case of reappearance. Again they are not enthusiastic about EU wide legislation to resolve the problem, recommending instead an act of soft law such as a Recommendation so as to create a level of Community wide uniformity.
While we’re on the topic, Larry Lessig has recently been busy responding to the US Copyright Office’s report on orphan works, and suggesting some solutions of his own.
5. The most provocative section of the report addresses consumer awareness of copyright, and the authors immediately underline an important divergence between awareness and acceptance of copyright.
“Various developments have contributed to a growing knowledge about copyright and related rights among the general public. The growth of online stores offering copyright and DRM protected content has confronted consumers with copyright-based business practices as a matter of course. There is increased public debate about the position of the consumer in copyright law, as is illustrated by the implementation of the Information Society Directive in France. Also, publicity campaigns by stakeholders have familiarised the general public with copyright principles and end users’ rights and obligations. Cleary, large-scale copyright infringement by consumers can not be explained in terms of a lack of copyright awareness. Consequently, no need appears to exist for the Community institutions to promote or undertake further initiatives aimed at raising copyright awareness. “
Evidence supporting this proposition is drawn from studies of p2p use, and the authors note that in many online communities the dominant norm is sharing rather than adherence to copyright law. In their view, there are many infringers who accept the principle of copyright but reject it as a guide to conduct for want of reasonable legitimate offers, unencumbered by the limitations of digital rights management (DRM), for example. Many of the arguments they make on this point are based upon the results of the various INDICARE surveys of user attitudes.
To win greater acceptance of the law, they argue for an increased role for consumer organizations and suggest that the Commission assume an enabling role in the contacts between these associations and industry stakeholders.
Their overall assessment of the harmonization process is sanguine:
“On balance, the harmonisation process has produced mixed results at great expense, and its beneficial effects on the Internal Market remain largely unproven and are limited at best.”
So many directives in so short a time has placed national legislatures under great strain, requiring literally incessant amendment of their law. I myself have noted how this has produced a situation whereby it is almsot impossible to access a consolidated version of the copyright law online via official sources in either the United Kingdom and Ireland (try opsi.gov.uk/ or baili.org). Thus their recommendation is to use soft law, as exemplified by the recent On line Music Recommendation, to the greatest extent possible and avoid further directives unless deemed vitally necessary.
This legislative process has invariably involved a harmonization upwards of property rights to the detriment of users, something they believe ought be remedied in any future revision.
A key argument underlined by the report is that if the objective is to simpliufy an internal market (the ostensible purpose of EU legilsation) then it will continue to be hampered by the territorial nature of copyright. In this respect they argue that the harmonization approach may be ‘aimed… at the wrong target’.
“As a consequence, even in 2006 providers of content-related services aimed at European consumers need to clear rights covering some 25 Member States. This clearly puts service providers at a competitive disadvantage vis-a-vis their main competitors outside the EU, such as the United States. ” (p.30)
Overcoming the fragmentation of the market can only be achieved by means of a Community Copyright Regulation pre-empting national regimes. And this would not be uncontroversial, given that national regimes tend to lean their copyright policies towards the promotion of their individiual cultural policies and to subsidise their own creators and industries.
To sum up, this is a useful and wide-ranging report which casts considerable light on the complex mosaic of copyright law in Europe as it has been remoulded in the last fifteen years. I look forward to reading their next report on Limitations and Exceptions, also commissioned by the EU.
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