1. 1 Diversity versus Unity: Reflections on the Future of Copyright Law in the European Union Sixth Advanced Research Forum on Intellectual Property Rights Selected Topics on Cultural and Legal Pluralism in IP Law organized by the World Intellectual Property Organization (WIPO) and the Faculty of Law, Hebrew University of Jerusalem Geneva, May 29 to 31, 2012 Franciska Schönherr PhD Candidate and Research Assistant Centre for International Intellectual Property Studies (CEIPI) University of Strasbourg, France

2. 2 Diversity versus Unity: Reflections on the Future of Copyright Law in the EU I. Diversity versus unity in EU copyright law - defining the problem The current legal framework: partial harmonisation of national laws EU’s method: approximation of laws by (mainly) sectorial directives Interpretation by the Court of Justice of the EU (CJEU) Underlying motivation: respect of Member States’ diversity Different legal traditions, approaches Competence issues Result: no unified legal framework, incoherence On the practical level: lack of legal certainty, cross-border transactions complicated, no completed “digital internal market”

3. 3 Diversity versus unity in EU copyright law - defining the problem - continued Conclusion: a more coherent, transparent legal framework is needed Need for: More unity enhancing transparency Flexibility, allowing for adaptation to new contexts and respect for diversity Challenge of translating these conflicting/complementary imperatives into policy choices How far should “unification” go? Which legal instruments would best consolidate the tension between unity and diversity? How would such choices impact on the thematic aspects of EU copyright law? Diversity versus Unity: Reflections on the Future of Copyright Law in the EU

4. 4 II. Attempts to increase unity: the project of EU-wide codification of copyright law Tendency? Communication of the European Commission of 24 May 2011: possible project of EU-wide “codification” Codification as consolidation of the EU acquis? Judicial activity of the CJEU General tendency of “Europeanization” of private law Proposal of academia: The European Copyright Code of the Wittem group How could/should such a project be implemented? Diversity versus Unity: Reflections on the Future of Copyright Law in the EU

5. 5 III. Accommodating unity in diversity: implications for policy choices EU-wide codification of copyright law: a project under construction Choices relating both to possible form and contents of a “code” need to be considered carefully Possibilities of “codification”: 1.Consolidation of the EU acquis – optimisation of the acquis? Allows for a higher degree of diversity Possible in the short term? 2.Replacement of national laws through an EU copyright law High degree of unity, legal certainty, transparency Direct horizontal effect of a regulation’s provisions under certain conditions 3. European Commission's suggestion: an “optional ‘unitary’ copyright title” Diversity versus Unity: Reflections on the Future of Copyright Law in the EU

6. 6 IV. An “optional ‘unitary’ copyright title” – towards a two-tier system of EU and national copyright law? “optional” – a soft law approach? Uncertainty about actual effects An optional “title” – to be bound to some kind of formalities? An optional “regime” – to be chosen, e.g., in the framework of transactions? Example of the Commission’s proposal for a regulation on an optional common European sales law (COM(2011) 635 final), area of contract law Advantages of a second set of optional rules: e.g., respect of principles of subsidiarity and proportionality, legal certainty Is the European Commission considering a two-tier approach? Diversity versus Unity: Reflections on the Future of Copyright Law in the EU

7. 7 An “optional ‘unitary’ copyright title” – towards a two-tier system of EU and national copyright law? - continued Options and opportunities of a two-tier approach Division by subject matter: idea of a two-tier system within a specific field of law Different degrees of protection, example of databases, see e.g., Annette Kur, 2012 Division by territory: idea of a two-tier system distinguishing the national/EU level Trademark and design law: different regimes, different territorial scope of protection Justification: differing needs as to the scope of protection Applicability to the idea of an optional EU wide title? Diversity versus Unity: Reflections on the Future of Copyright Law in the EU

8. 8 An “optional ‘unitary’ copyright title” – towards a two-tier system of EU and national copyright law? – continued Applicability to the idea of an optional EU wide title? Example: 1.National level: “classic” subject matter, low or no cross-border dimension, high degree of diversity Continuation of the current approach: approximation where justified by imperatives of the EU internal market 2.EU level: “new” subject matter, cross-border dimension preponderant, transactions in online environment, less need to respect diversity, increased costs and complexity See, e.g., Marco Ricolfi, 2012 (forthcoming): “opt-in” for broader protection, “creative commons by default” “Optional regime”: extensive, detailed study necessary to determine needs of stakeholders and markets. Certain problems need to be solved in the short term, e.g., the issue of limitations to copyright law. Diversity versus Unity: Reflections on the Future of Copyright Law in the EU

9. 9 V. Outlook on future activity relating to the contents of copyright law in the EU Wittem Code: “main aspects” of most copyright systems covered Perspective: short, medium, or long term? Starting point: the EU acquis – consolidation, improvement, and completion Orientation/“fil rouge“? Idem as for form – accommodation of both unity and diversity/flexibility The example of exceptions and limitations to copyright law: current system insufficient, neither flexible nor transparent (e.g., Martin Senftleben, 2010) Proposal of the European Copyright Code: a closed list of limitations combined with an opening clause Diversity versus Unity: Reflections on the Future of Copyright Law in the EU

10. 1010 Thank you for your attention! Comments and suggestions are very welcome: franciska.schonherr@ceipi.edu Diversity versus Unity: Reflections on the Future of Copyright Law in the EU