Digital Single Market in 2016 – towards copyright harmonisation and beyond?

Intellectual property law has gained substantial momentum in the past couple of decades with the rise of the Internet and the digital revolution blowing the door to cross-border intellectual property rights infringements wide open. The EU has attempted to respond with valiant efforts to ensure the well functioning of a borderless internal market in the field of intellectual property law. However, while these efforts may arguably have succeeded in a quasi-harmonisation of areas such as trademarks, designs and, with the introduction of the pending Unitary Patent project, patents, the field of copyright law seems to have been mostly neglected by the EU. Copyright law in the EU today benefits solely from a measly number of directives on EU level and leaves substantial areas, including exceptions and limitations to infringement, largely untouched.

When the Commission’s Digital Single Market strategy was unveiled in May 2015, the tone regarding copyright modernisation was generally optimistic and ambitious. The Commission was clear about the need for a more modern and European copyright framework as part of its Digital Single Market pillar on “Better online access for consumers and businesses across Europe”. It declared, somewhat ceremoniously, that it was going to focus on eliminating unjustified geo-blocking as well as initiating legislative proposals aimed at reducing the differences between national copyright regimes and allowing for wider online access to work across the EU.

Günther Oettinger, EU Commissioner in charge of the Digital Single Market
Günther Oettinger, EU Commissioner in charge of the Digital Single Market

In October, the Commission published a roadmap announcing a communication due to be presented before the end of 2015. A draft of this communication was, however, subsequently leaked by IPKat, and the main takeaway is a notable step away from the ambitious objectives the Commission starry-eyedly set back in May. For one, it seems to effectively have given up on all projects concerning a single Union copyright title, claiming that full harmonisation of copyright law on EU level “would require substantial changes in the way [their] rules work today” and would require the establishment of a common EU copyright court, which would take a long time to implement. While the Commission does conclude by stating that these should – and will – remain in the back of their minds as a long-term target, the communication seems to suggest that the Commission is ultimately shying away from too drastic changes for the foreseeable future. Instead, aside from guaranteeing to propose legislation implementing the Marrakesh Treaty, the communication is teeming with vague and cautious statements, gentle promises and wary proposals.

This is a far cry from what most pro-harmonisation fanatics had expected, especially in light of the Commission’s earlier declarations. But more importantly, one might wonder why the Commission is being so reluctant to establish a single copyright code and title, when copyright law remaining a national law issue clearly hinders cross-border cooperation within the framework of a single market. The two main arguments – that divergences between national legislations in the field of copyright law are too daunting to overcome, for one, and that there is need to protect European cultural diversity by confining copyright law to Member State discretion, for another – are far from convincing. While the fact that national legislations differ greatly can be a valid argument with regards to politically sensitive areas such as criminal law, copyright law is essentially a commercially-driven legal field and should be treated by the same standards. It is clear that Member States all agree on the same basic values and conceptual ideas regarding copyright protection, and the main points at issue concern methodological or procedural aspects. Reaching a compromise on the basis of common notions and principles should, although not an easy task, be an entirely doable one given the commercial nature of copyright law and the trade-related issues at stake. Concerning the second argument, by allowing protectionist behaviour, one ends up not only depriving a copyright holder of a global audience instead of protecting his creation, but also freezing ‘creators’ and media outlets in an archaic model widely incompatible with the technological advances of the information age.

While the official communication has yet to be published, it is highly doubtful that it will deviate much from the draft that was leaked, and from this draft it is clear that the immediate future of copyright law within the EU appears gloomy at best. The holy grail of a unitary copyright title seems out of reach and, in light of ever-growing EU-scepticism, it is unlikely that it will be back on the Commission’s agenda for the foreseeable future. Realistically, the farthest the Commission can go for now is to continue its efforts of ‘gentle’, non-drastic harmonisation in trivial areas of copyright law by going through with its current Digital Single Market strategy. It is, however, highly desirable that the Commission in 2016 assume a more proactive role, and that it refrain from backing away from initial objectives this time around. On a side note, and especially in light of recent extremely ambiguous and opaque judgments handed down by the Court of Justice, it is also crucial that the Court be more meticulous and explicit about its rulings in the scant number of subdomains within copyright law that are in fact harmonised on EU level.

Here’s hoping that 2016 brings, if not great strides, then at the very least baby steps in this field.

Emilie SCHOU

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