Law and Information

I’m currently in Berlin, attending Wizards-of-OS 4.0, a terrific conference organized by Volker Grassmuck and this team. Earlier the week, Lawrence Lessig, Yochai Benkler, and Hal Varian – to name just a few – had been presenting. Yesterday, I had the pleasure to chair a panel on the EU Copyright Directive. In essence, the session sought to analyze and evaluate the current EU copyright landscape as shaped in important ways by the EUCD (among other directives). On the panel were Bernt Hugenholtz, Director of the Institute for Information Law at the Univ. of Amsterdam; Tilman Lueder, Head of Unit “Copyright and knowledge-based economy”, DG Internal Markets, European Commission; Cornelia Kutterer, Senior Legal Advisor BEUC; and Maja Bogataj, Director of the Intellectual Property Institute, Slovenia.

The four presentations, each rich in substance, touched upon a broad variety of important issues and it is almost impossible to summarize the panel. However, I think there were at least three recurring themes where some sort of consensus among the panelists emerged.

Harmonization of copyright law comes at significant cost and leads to a race to the top as far as the protection of copyright holders’ interests are concerned.

Bernt Hugenholtz explained in quite some detail, based on a recent (still confidential) report he wrote for the European Commission, why we should be very skeptical about copyright harmonization. He argued, in essence, that the EU step-by-step-harmonization efforts have imposed a huge burden on both the EU legislative machinery as well as on national lawmakers who, in the past 15 years or so, have had continuously to transpose EU copyright directives into their national laws. More fundamentally, he raised the question whether harmonization, at all, can be the right tool – vis-à-vis enormously time-consuming legislative processes (the work on the EUCD goes back to 1996) – in a quicksilver technological environment. The strongest argument against harmonization, though, is the observation that harmonization has created significant asymmetries and imbalances: It significantly distorted the traditional balance between the interests of copyright holders on the one and the interests of users and the public at large on the other hand in favor of copyright holders. Bernt also argued that harmonization (vis-à-vis the principle of territoriality of copyright law) has produced negative effects on the Internal Market. In the recommendation-part of his speech, he proposed to restrain from future harmonization in this area. Rather, he suggested the use of soft law and, in the long run, of the creation of a unified, truly European Copyright Law.

The EUCD has created significant asymmetries and imbalances that need to be fixed.

It doesn’t come as a surprise that Cornelia Kutterer in particular has made it very clear in what ways and areas the EUCD has favored copyright holder’s interest over user’s interest. Much of the discussion focused on Art. 5 EUCD, which sets forth (largely voluntary) exceptions and limitations, and on the legal protection of technological protection measures. In the latter context, Cornelia addressed issues such as interoperability and (lack of) transparency. From a very different perspective, Tilman Lueder was questioning whether the EUCD has struck the right balance between exclusive rights and fair compensation, and whether compensation models will prevail in the age of digital distribution (vis-à-vis DRM.)

The solution to some of the flaws of the EUCD might be found in other areas of law such as competition law or consumer protection law.

With regard to potential answers to the problems created, in part, by the EUCD, Cornelia Kutterer – as well as previously Tilman Lueder to some extent – proposed to consider the use of consumer protection laws and competition law to rebalance interests. She suggested, for instance, to conceptualize DRM as “technical terms” in analogy to contractual terms, and to extend the scope of the Unfair Contract Terms Directive in a way that it includes such technical terms (“code”) too. Another issue to be dealt with in the consumer protection acquis is EU-wide labeling requirements for DRM.

Later this morning, we will ask how accession and candidate countries can learn from these (largely: bad) experiences surrounding the EUCD in particular and EU copyright harmonization in general. At a workshop sponsored by the Soros Foundation, we will talk in greater detail about the pitfalls of EUCD implementation (what Maja Bogataj yesterday has described as “cut-translate-paste”-legislation). In this context, we will also explore as to what extent best practices of implementation can be identified that might be helpful to future EU member states (and, probably, in the context of law reform projects.) We had a first cut at what shall become a EUCD best practice guide, check it out here. It’s an initial and uncompleted draft and very much research in progress, so feedback and contributions are most welcome and much appreciated.