BLACA-IPI Seminar 14 October 2010 “European Copyright Reform”

The Commission’s plans or An Outsider’s View Sam Ricketson Melbourne Law School and Victorian Bar

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 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 (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” , 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

Final outcome Preference would be for the unification model Would still not cover everything, but Some present vertical projects could continue, eg collective management, orphan works Some matters might remain part of national laws, eg contractual issues