Michael Long is an LLM candidate advancing to the PhD at Osgoode Hall Law School
On April 26 of this year the European Copyright Code, which is the product of an academic endeavour between notable copyright scholars across the European Union, was introduced via the Wittem Project Group website (http://www.copyrightcode.eu/). The Group is of the mind that the drafted Code may serve as a representation for the harmonization and unification of copyright law in the European realm. The draft takes the form of a legislative instrument while concentrating on the key elements of codifying copyright, including: i) the subject matter of copyright, ii) authorship and ownership, iii) moral rights, iv) economic rights, and v) limitations.
The aim is ‘to promote transparency and consistency in European copyright law’ which is argued to be lacking in this realm and which ‘the voice of academia’ can help to remedy although ‘all too often remain[ing] unheard.’ The purpose and method are clearly and explicitly outlined in the Code’s introduction, and the body of the work reads equally as impressive; the provisions themselves read like reminders of the fundamental tenets of copyright. And yet, while reading we cannot help but wonder whether these provisions have the ability to meet the lofty task of harmonizing copyright law in this realm.
In order to determine its ability to achieve such a task we can turn to P. Bernt Hugenholtz’s coauthored book, from the Information Law Series, titled Harmonizing European Copyright Law: The Challenges of Better Lawmaking. The authors note that the task is a difficult one which has not always been handled with the greatest care and thus suggest the following areas in which to improve: i) identifying the issues, ii) formulating the correct policy for dealing with them, and iii) articulating that policy in the manner best able to facilitate its consistent implementation. Within these areas, existing copyright law is described according to the principal elements that copyright law on the national level shares with other legal rights, and the focus rests on protected subject matter, beneficiaries, extent of exclusive rights, terms of protection, and limitations.
An important principal issue analyzed here is that of harmonization from the viewpoint of member states of European copyright law and their responsibilities under differing international instruments, such as the Berne Convention, Rome Convention, TRIPs and WIPO agreements. Whether the Code has the ability to comprehensively harmonize European copyright law is beyond the scope of this introductory passage. However, at a brief glance, the Code does take into consideration a number of the suggestions proposed by Hugenholtz and his coauthors. A notable of which is accounting for the existing substantive international norms such as the Berne Convention and the TRIPs agreement, as well as, the commitments made by individual member states of the EU. Those interested in analyzing the ability of the European Copyright Code to harmonize European copyright law should consider doing so in relation to the suggestions outlined by Hugenholtz and his coauthors.
Harmonizing European Copyright Law: The Challenges of Better Lawmaking by P. Bernt Hugenholtz is available online (http://www.kluwerlaw.com/Catalogue/titleinfo.htm?ProdID=9041131302)