Some opening caveats Unable obviously to speak for, or of, the
Commission Can only speak as an outsider
As a citizen of a federal country From the perspective of the international copyright
conventions Topic should be: What should the plans of the
Commission be? Which way to go?
Horizontal reform –a new project; or Vertical reform – work to be continued
Analogies/lessons from elsewhere? Countries with federal systems where copyright is a federal
matter Australia, USA, Canada, even Germany
Obvious differences in geographical size and populations But note divisions of powers between federal parliament and
states in Australia and US Copyright (IP generally) federal matters in both countries, but
other significant matters remain with States Different origins for both kinds of groupings
Political and external as much as economic in US and Australia Primarily economic in EU, at least initially – common market, removal
of trade distortions Hard to generalise however or explain why one subject matter ends up
in the federal rather than the state sphere in both Australia and the US
Analogies cont Net result re copyright:
Horizontal in Australia and the US (Canada and Germany also), ie matters with exclusive federal legislative competence
Vertical, with some touches of horizontality, in the EC, ie potential limits because of need to link changes to working of the internal market
Why should there be differences here? Different legal traditions? Linguistic? Cultural and social?
Subject-matter protected Moral rights issues Role of collective management Defences and limitations
Other areas of IP in EU Trade marks and designs
horizontal approaches appear to have worked here (more or less)
Advantages of single EU regulation cf directives: Unitary law or code Costs and difficulties in achieving directives Too much discretion at national level Too much left to national laws if directives
are vertical only
Why trade marks and designs but not copyright?
Reasons go both ways Registration systems cf unregistered
rights Less complex/contentious Continuance of national rights
Lessons from the International Conventions Berne Convention for the Protection of
Literary and Artistic Works 1883-1967 TRIPs Agreement 1994 WIPO Copyright Treaty 1996 (WCT) WIPO Performances and Phonograms
Treaty 1996 (WPPT)(prior to this, Rome Convention – Phonogram Producers, Performers and Broadcasting Organisations)
Berne Convention
Early attempts to achieve a universal copyright law – Brussels 1858, foundation of ALAI 1878
Became a more limited project based on national treatment 1884-6 (like Paris Convention 1883)
Berne (cont) More than just national treatment, even
from the start: 1886 Berne: included limited translation
rights, public performance and adaptation rights, some exceptions and limitations
1896 Paris: enhanced translation rights 1908 Berlin: new works and rights (mech
and cine reproduction and adaptation), no formalities rule, life plus 50 term
Berne (cont) 1928 Rome: broadcasting, moral
rights 1948 Brussels: broadcasting (refined,
public performance 1967 Stockholm: reproduction rights,
three step test Revision process stopped 1967 –
crisis re developing countries and compulsory licences
Berne: net achievements (hard copy environment) Broad definition of works covered Exclusive rights: reproduction,
adaptation, translation, public performance and recitation, broadcasting, cine adaptations, moral rights, droit de suite (optional)
Exceptions and limitations (express, implied)
No formalities Terms of protection
Implementation of Berne provisions domestically Some clearly require further
implementation at national level or provide limits and conditions, eg exceptions and limitations
Some are permissive, eg need for fixation Others capable of direct application
where this is possible under national law, eg exclusive rights, moral rights, term
Some depend upon interpretation at national level by legislatures or courts, eg originality requirements
Areas not covered by Berne (completely or only partially)
Exploitation – issues of entitlement, ownership, transfer, collective management
Conflicts issues Enforcement Ancillary liability
Berne post-Stockholm No more revision – grinds to a halt –
developing countries crisis Growth in membership – 58 in 1967, 76 in
1986 and 164 (2010) – agreement more difficult
More limited revision process begins in 1991 with “possible protocol” (response to Uruguay Round)
Subtle shift to “digital agenda” 1994-1995, leading to WCT and WPPT 1996
Significant membership for both these now: WCT (88) and WPPT (86), including EU
TRIPS Agreement 1994
Integral part of WTO membership Applies Berne acquis plus a little
more, eg computer software, databases
Enforcement at domestic level Enforcement at state level – WTO
dispute resolution process
WCT 1996 New rights for online environment
Communication to the public, making available Refines notion of reproduction Recalibration of exceptions and limitations (3
step test) Collateral protection measures Fills some other gaps – computer software,
databases, term of protection for photographic works, distribution and rental rights
WPPT 1996
Elaborates on Rome for performers and phonogram producers – much fuller protections
Does not cover audio-visual performers, broadcasters
Databases left to moulder on the shelf
Overview of the international position Many significant issues still undeveloped
or unresolved, eg ancillary liability, ownership and exploitation issues (incl collective management), conflicts issues
Many matters still left to implementation at national level
Current initiatives at the international level very limited or still-born, eg visually impaired readers, broadcasting, audiovisual performers
WIPO not undertaking any broader agenda
Lessons for the EU? Berne most successful when membership was
more limited, eg only 37 in 1928 (Rome) and 16 in 1908 (Berlin)
Broader vision in earlier Berne revision programmes
Berne only concerned with treatment of foreigners, not the creation of a universal regime
Berne, like EC directives, still requires considerable degree of implementation at national level – room for variation and divergence
Same is true for WCT, WPPT and TRIPS
Nonetheless.. Berne, etc, could provide a solid starting point
for developing a more general copyright code for EU (Wittem Project is a useful model here)
Consider horizontal issues already in place: Term (art 7 Berne) Exclusive rights: reproduction, communication to
public, distribution (Berne, WCT, Inf Soc Dir), rental (WCT) – only public perf, adaptation, translation and moral rights a la Berne required
Exceptions and limitations (Berne, WCT, TRIPS and Inf Soc Dir)
Nonetheless (cont)..
Vertical issues that can be made horizontal and/or incorporated: Subject-matter (Berne, WCT, TRIPS) Enforcement (TRIPS, WCT, Dir
2004/48/EC) Resale right Satellite and cable
Horizontal harmonisation or unification? Harmonisation –
leaves open possibility of conflicts between national applications
May be easier to achieve Unification –
Much greater initial legal and political effort to achieve
Removes conflicts issues – one general law Role of courts would become critical - an EU
wide judiciary? cf federal models in Australia and USA