Should the EU unify copyright laws?

· copyright,EU copyright,unification,harmonization,codification

Should the EU unify the copyright laws of its Member States and introduce, over thirty years after the start of the harmonization process, a unitary copyright title? The short answer is: yes. And that will be unavoidable too.

The real question is therefore another: how to go about doing that? In order to answer this, it is necessary to start from the beginning and retrace the steps of a harmonization process that has led to a framework, which is an understatement to call ‘complex’.

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Kat (re-)unification

1988 – 2024: A (very) piecemeal history of a piecemeal harmonization process

The official start of the harmonization project is 1988, when the now European Commission released its Green Paper on Copyright and the Challenge of Technology. There, future harmonization initiatives appeared already anchored not only to an internal market-building rationale, but also to the objective of ensuring the now European Union’s overall competitiveness vis-à-vis third countries and the need to strike a fair balance between the rights and interests of different parties.

Since then, harmonization initiatives have progressed on a fragmentary and project-specific basis. The instrument chosen to this end has been invariably the unavoidably frustrating one of directives, with only a couple of regulations being adopted over time. Today’s copyright acquis looks like one for which the ‘less is more’ basic rule of fashion has not clearly been of much inspiration or, if it has, it has been so for all the wrong reasons. Specifically: not to speak seriously about a more extensive and altogether different harmonization ambition.

That said, the question whether unification – rather than approximation – is the way forward has been at least in the air for nearly thirty years already. Indeed, in 1997, the proposal for what would be eventually adopted as the InfoSoc Directive in 2001 was released. The following year, Adolf Dietz wondered “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.” (A Dietz, ‘The protection of intellectual property in the information age - the draft E.U. Copyright Directive of November 1997’ (1998) 1998/4 IPQ 335)

Since then, the question of unification has resurfaced on a regular basis, most likely also prompted by the realization that, in the copyright field, harmonization has not been only achieved through legislation but also – in very substantial, if not great part – through the case law of the Court of Justice of the European Union (CJEU) which, starting with Infopaq in 2009, has played a truly pivotal role in shaping and re-shaping the EU copyright system, frequently exceeding not only the letter but also most likely the intention of the EU legislature.

Just a few examples: in 2010, the Wittem Group of academics released a model EU copyright code. In 2013, in his Opinion in Amazon.com, Advocate General Mengozzi expressed his dissatisfaction at then current state of harmonization: “for the purpose of developing a modern legal framework for copyright in Europe […] it is necessary to move towards pursuing a much greater level of harmonisation of national law than that attained by [the InfoSoc Directive]. In 2015, the European Commission itself called unification of copyright laws “a long-term target”.

Fast forward to today, and we see that – over a handful of months – two further calls for unification or consolidation appear to have been authoritatively made. First, in an interview published on Información in October 2023, the newly a