A plea for EU copyright unification coming from … the EUIPO?

· copyright,harmonization,EUIPO,copyright policy

As IPKat readers know, unlike other areas of IP, the creation of an EU-wide copyright title has never appeared like a concrete possibility ... yet.

Indeed, the history of EU copyright harmonization has progressed in steps, with several directives (and a couple of regulations) being adopted over a period of 30+ years.

Despite the relatively limited legislative harmonization, over the past several years the copyright laws of individual EU Member States have nevertheless become more and more harmonized, also thanks to the pivotal role played by the Court of Justice of the European Union (which I examine here).

Now – quite unexpectedly one might say – a call for greater harmonization – or rather: unification – of copyright laws seems to have come from the newly appointed Executive Director of the European Union Intellectual Property Office (EUIPO), João Negrão.

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João Negrão

A short history of copyright harmonization in the EU

Since the signing of the Treaty of Rome in 1957, the process of European integration has been linked to the creation of an internal market, where a number of basic freedoms – including freedom of movement of goods and services – would be guaranteed.

Throughout the 1980s, it became apparent that harmonization of IP laws would be also necessary to achieve this overarching internal market-buidling goal. During the following decades, the harmonization discourse touched upon all the main IP rights, including copyright.

Over time, several directives aimed at reducing or removing certain differences in the copyright laws of EU Member States, as well as a limited number of regulations that touch upon specific aspects of copyright law, have been adopted.

In 2007, the Treaty of Lisbon introduced a provision, Article 118(1) TFEU, which could provide – though not necessarily without problems – the legal basis for more ambitious harmonization than what has been the case so far, including the establishment of a EU-wide copyright title. This provision vests the European Parliament and the Council, when acting in accordance with the ordinary legislative procedure, with the power to establish measures for the creation of EU-wide IP rights and for the setting up of centralized Union-wide authorization, coordination and supervision arrangements.

Creation of an EU-wide copyright title

The creation of a EU-wide copyright title has been discussed for a long time. As early as 1998, in the context of the 1997 proposal of what would eventually become the InfoSoc Directive, Dietz wondered (‘The protection of intellectual property in the information age - the draft E.U. Copyright Directive of November 1997’ (1998) 1998/4 IPQ 335):

whether sooner or later we must arrive at a point where we should leave the process of step by step harmonisation behind and begin to start a more systematic approach, which would eventually result in a community copyright in the same way as such a community right exists already in the trademark field and--mutatis mutandis --at least in draft form also in the patent field.

Greater harmonization, or even unification, of Member States’ laws has been also linked to the objective of establishing a more modern framework. As Advocate General (AG) Mengozzi noted:

a large number of problems relating to the application of Directive 2001/29 arise from the insufficient level of harmonisation of copyright law within the Union […] [T]his demonstrates that although it is important to respect the […] legal traditions and views which exist in that regard in the Member States, for the purpose of developing a modern legal framework for copyright in Europe which, having regard to the various interests at stake, makes it possible to safeguard the existence of a genuine single market in that sector, by promoting creativity, innovation and the emergence of new business models, it is necessary to move towards pursuing a much greater level of harmonisation of national law than that attained by Directive 2001/29.

Despite that full harmonization has been considered at different levels and the Wittem Group