|Title:||The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States|
|Citation:||Angelopoulos, C. (2012). The myth of European term harmonisation: 27 public domains for the 27 member states. International Review of Intellectual Property and Competition Law (2012) Vol, 43, 567-594.|
|Link(s):||Definitive , Open Access|
|Key Related Studies:|
|About the Data|
|Data Description:||The author makes a comparative analysis of the terms of protection of copyright and related rights between six different legal systems, using data from research behind the Public Domain Calculators and the accompanying Term of Protection Report, currently available at www.outofcopyright.eu.|
|Data Type:||Secondary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||Yes|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
The term of protection of copyright and related rights is generally considered to be one of the best harmonised areas of European copyright law. However, close examination of the EU Term Directive’s intricate provisions reveals a piecemeal and permissive approach to harmonisation which preserves many differences between the national rules. In this report, four main sources of legislative variability are identified and analysed: a) contagion from unharmonised areas of substantive copyright law; b) explicit exceptions to the harmonisation of the term of protection; c) national related rights of unharmonised term; and d) incorrect implementation of the provisions of the Term Directive into national law. As a result, the desired harmonising effect has not been fully achieved: although a single rule may be applicable across the EU in theory, drastically divergent terms of protection may attach to the same information product depending on the jurisdiction within which protection is sought. In this way, the territorial nature of copyright undercuts harmonisation efforts, forcing the public domain to contract and expand according to divergent national rules. The result is a legislative framework that makes cross-border rights clearance calculation difficult, hampering end-users and cultural heritage organisations from taking full avail of the new opportunities now technically available for the digitisation and exploitation of the public domain. If the EU wishes to establish a truly harmonised term of protection for copyright and related rights, a more committed and comprehensive approach will be a necessary.
Main Results of the Study
- Despite the Term Directive’s attempt to establish a harmonised term of protection for works of copyright and related rights across the EU, unharmonised pockets in term of protection legislation persist. Four main sources of legislative variability can be identified: a) contagion from unharmonised areas of substantive copyright law; b) explicit exceptions to the harmonisation of the term of protection; c) national related rights of unharmonised term; and d) incorrect implementation of the provisions of the Term Directive into national law. National duration idiosyncrasies thus survive into the post-harmonisation era – a single European term of protection remains very much a chimera.
- Without proper EU harmonisation of the term of protection the same subject matter might receive a drastically different term of protection depending on the country within which protection is sought, increasing the complexity of the calculation of the duration of copyright and related rights in Europe 27 times over. This fragmented state of affairs is maladjusted to the challenges of the digital world: although from a legal point of view the public domain may still be conceived of as multiple separate country-specific entities, with the advent of online exploitation the use of a work is envisaged as taking place simultaneously across borders.61 Territoriality, a cornerstone of traditional copyright law, does not tally with the look and feel of the internet.
- Diverse national rules make the calculation of the term of protection excessively difficult. European cross-border digitisation projects such as Europeana may wish to signal the public domain status of holdings to their users, but which is the relevant public domain? If a work has no set copyright status, marking it online as definitively free to use becomes treacherous. Cultural institutions are likely to follow the term of protection rules of their own country, but this will not provide legal certainty for users situated elsewhere.
Policy Implications as Stated By Author
The author points out that if the public domain is to be fully and freely digitised and exploited legal certainly must be provided as to exactly which cultural creations fall within its confines and which are still protected by proprietary rights. The semi-harmonisation achieved thus far has narrowed the autonomy of Member States in the area of the term of protection, providing some superficial approximation. The devil of disharmonisation however persists in the details of term harmonisation. If the EU wishes to establish a truly harmonised term of protection for copyright and related rights, a more committed and comprehensive approach will be a necessary. Some of the identified harmonisation gaps can be filled with a stricter European harmonisation policy intolerant of national oddities. Others, such as those caused by transitional provisions or international obligations granting terms of protection longer than those foreseen in the Directive, will not be eliminated for decades. However, disparities in the conceptual framework of copyright can only be overcome with the harmonisation of European substantive copyright law. In its recent Communication on a Single Market for Intellectual Property Rights the Commission broached the idea of a far-reaching overhaul of copyright at the European level through the creation of a European Copyright Code. Challenging as the execution of this proposal might be politically, such a code would go a long way to ensuring legal certainty for European citizens.
Coverage of Study
|Level of aggregation:||Country|
|Period of material under study:||2009 to 2011|